Damien Gerard, Dec 09, 2010
In a series of speeches delivered over the past few weeks, EU Competition Commissioner Almunia and DG COMP Director General Italianer engaged various audiences on the sensitive topic of due process and competition enforcement. The objective was presumably to weigh in the current intense debate over the compatibility of the EU antitrust enforcement system with the requirements of Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) on the right to a fair trial, in the context of the impending accession of the Union to the ECHR, as provided for by the Treaty of Lisbon, and of a growing consensus over the (quasi-)criminal nature of EU antitrust proceedings. The message was clear: “major structural changes to [the] competition enforcement and institutional structures are not an option” even though the Commission is “open to local changes that would improve [the] system.” So much for those advocating a radical departure, “within five years,” from the current organization centralizing investigator, prosecutorial, decisional, and policy-making functions in the hands of the Commission.
Among the reasons justifying their overall satisfaction with the current enforcement system, the chief EU antitrust enforcers referred systematically to the review of the Commission decisions by the European courts, which “represent[…] the ultimate guarantor for due process” and is “very close and very careful.” “I certainly bel