Chapter 2: The Right to be Heard in EC Competition Proceedings between ‘Administrative Due Process’ and a Right to a ‘Fair Trial’
INTRODUCTION This chapter seeks to examine the discipline of the right to be heard in antitrust and merger proceedings before the European Commission and to discuss its compliance with the standards provided by the European Convention on Human Rights with respect to administrative procedures having a civil or criminal character. After having investigated the genesis of the right to be heard as a general principle of EC law embodied in the ‘constitutional traditions’ common to the Member States, we will consider the corresponding requirements laid down in the ECHR. Thereafter, the examination will concentrate on highlighting areas of similarity and difference as well as issues of concern for the compliance of the right to a hearing in competition proceedings before the Commission with the European Convention standards. The chapter will conclude that, although the right to be heard appears to be sufficiently established in the context of the EC competition enforcement, there are still significant problems concerning its effectiveness especially in the framework for merger control, given its tight deadlines, as well as more generally with respect to the completeness of the statement of objections and the involvement of the Hearing Officer in the context of Articles 81–82 EC Treaty cases. 1. THE RIGHT TO BE HEARD IN EC COMPETITION PROCEEDINGS: FROM THE ‘GENERAL PRINCIPLES OF LAW’ TO THE IMPLEMENTING REGULATIONS 1.1. ‘Audi Alteram Partem’: the Foundations of the Right to a Hearing in EC Law The standards of ‘administrative fairness’ in force in EC law are in significant...
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