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Due Process and Fair Trial in EU Competition Law
The Impact of Article 6 of the European Convention on Human Rights
Series: - Nijhoff Studies in European Union Law, Volume: 18
Author:
In
Due Process and Fair Trial in EU Competition Law, Cristina Teleki addresses the complex relationship between Articles 101 and 102 of the Treaty on the Functioning of the European Union and Article 6 of the European Convention on Human Rights.
The book is built around the idea that big business can threaten democracy. Due process and fair trial should be central to the process of addressing bigness through competition law, by safeguarding independent decision-making and judicial review and by preventing competition authorities from growing into administrative behemoths threatening democracy from inside. To show this, the book combines a comprehensive review of the case-law of the European Court of Human Rights with insight from economics, psychology and systems theory.
The book is built around the idea that big business can threaten democracy. Due process and fair trial should be central to the process of addressing bigness through competition law, by safeguarding independent decision-making and judicial review and by preventing competition authorities from growing into administrative behemoths threatening democracy from inside. To show this, the book combines a comprehensive review of the case-law of the European Court of Human Rights with insight from economics, psychology and systems theory.
Cristina Teleki, Ph.D. (2020) is a lawyer who worked at the European Court of Human Rights, the European Commission and the International Committee of the Red Cross. Her research focuses on fundamental rights and EU law.
List of Tables and Figures
Acknowledgements
Introduction
1 Scope
2 Methodology
PART 1
Foundations
1 Central Issues of Research
1.1 EU Competition Law – A Paradox within EU Law
1.2 The ECtHR – System Design as a Predictor of Success
1.3 ECtHR as a Self-Regulating Tribunal
2 Supporting Issues
2.1 Systems Theory and Social Sciences
2.2 The New Public Management Movement
2.3 Peoples, Consumers and Citizens
2.4 Accession of the EU to the echr
2.5 The Charter of Fundamental Rights of the EU
3 A Foot in the Past: Existing Literature
3.1 Legal Philosophy
3.2 A Renewed Debate on Human Rights
3.3 A Renewed Imagining of the Trial
3.4 Competition Policy
3.5 Competition Policy and Fundamental Rights
PART 2
The Dynamic Evolution of the Right to a Fair Trial
Introduction to Part 2
4 The Right to a Fair Trial
4.1 Formulation and Importance of Article 6(1) echr
4.2 Influence of the Case-law of the ECtHR on Domestic Legislation
4.3 External Influences on the Case-law of the ECtHR
5 Applicability of Article 6(1) ECHR
5.1 Maintaining Pockets of State Sovereignty
5.2 Applicability of Article 6(1) ECHR to “Civil Rights and Obligations”
5.3 Applicability of Article 6(1) ECHR to “Criminal Charges”
6 The Right to a Fair Trial – A Tool for Self-Regulation
6.1 The Process Towards Justiciability
6.2 The Role Played by the Academic Community
6.3 The Zeitgeist
6.4 Cooperation with the ECtHR – Four Possible Models
PART 3
Fair Trial and the Independence of the Commission as the Competition Enforcement Agency of the EU
Introduction to Part 3
7 The Debate on Independence at the Crossroads of the Administrative State, Delegation and IRA s
7.1 The Rise of the Administrative State, Delegation and IRA s
7.2 The UNCTAD
7.3 oecd Roundtable on Changes in Institutional Design of Competition Authorities
7.4 International Competition Network
7.5 Independence of European Regulators
7.6 The European Competition Network
7.7 Empowering NCA s – Directive 1/2019
7.8 The Difficult Case for the Independence of the European Commission
8 The Case-law of the ECtHR on the Right to an Independent and Impartial Tribunal
8.1 Established by Law
8.2 Independence
8.3 Impartiality
8.4 The Relevance of the ECtHR’s Case-Law on Independence and Impartiality
9 The Structure of the European Commission as Enforcer of Competition Law
9.1 The European Commission as a Political Institution
9.2 The European Commission as an Autonomous Bureaucracy
10 The Procedure for Enforcement of Article 101 and 102 tfeu
10.1 The Investigation Phase
10.2 Prohibition Procedure
10.3 Commitments Procedure
10.4 Procedure for Rejection of Complaints
10.5 Settlement Procedures
11 The Commission’s Powers of Investigation
11.1 Sanctions
11.2 Leniency
11.3 Sector Inquiries
11.4 Requests for Information
11.5 The Power to Take Statements
11.6 Powers of Inspection
12 Limits on the Commission’s Powers of Investigation
12.1 General Principles of Limitation
12.2 The Rights of the Defence
13 A Risk-Based Framework for Safeguarding the European Commission’s Independence
13.1 Identifying the Risks to Independence in EU Competition Law Proceedings
13.2 Mitigating the Identified Risks
PART 4
Fair Trial and Judicial Review of EU Competition Law
Introduction to Part 4
14 Case-law of the ECtHR on the Right to an Effective Judicial Review
14.1 Judicial Review in Administrative Law Disputes
14.2 Judicial Review in Disputes Involving “Criminal Charges”
14.3 Judicial Review in Banking Law Disputes
14.4 Non-Pecuniary Damage for Breach of the Right to Judicial Review
15 Relevance of the ECtHR’s Case-law on the Right to Judicial Review – A Story of Three Models
15.1 Exercise of Administrative Discretion within Polycentric Issues
15.2 Exercise of Administrative Discretion for Monocentric Issues
15.3 Exercise of Administrative Discretion as Policing Power
16 Case-law of EU Courts on the Right to an Effective Judicial Review
16.1 Right to Effective Judicial Protection
16.2 Right to Judicial Review in Competition Law cases – A Matter of Constitutional Design
16.3 Limited Review of Legality – Design by Self-Interpretation
16.4 Unlimited Review of Fines
16.5 Margin of Appreciation of the EU Commission and Unlimited Review of Fines
16.6 The Right to a Fair Legal Process in EU Law
17 Is Judicial Review A Cure for Bigness?
17.1 Adjudication and Economic Evidence
17.2 Adjudication and the Administrative Man
17.3 Adjudication, Bias and Monoculture
17.4 Adjudication and Problems of Organized Complexity
Step into the Future: Bigness and Judicial Power
Works Cited
Index
Acknowledgements
Introduction
1 Scope
2 Methodology
PART 1
Foundations
1 Central Issues of Research
1.1 EU Competition Law – A Paradox within EU Law
1.2 The ECtHR – System Design as a Predictor of Success
1.3 ECtHR as a Self-Regulating Tribunal
2 Supporting Issues
2.1 Systems Theory and Social Sciences
2.2 The New Public Management Movement
2.3 Peoples, Consumers and Citizens
2.4 Accession of the EU to the echr
2.5 The Charter of Fundamental Rights of the EU
3 A Foot in the Past: Existing Literature
3.1 Legal Philosophy
3.2 A Renewed Debate on Human Rights
3.3 A Renewed Imagining of the Trial
3.4 Competition Policy
3.5 Competition Policy and Fundamental Rights
PART 2
The Dynamic Evolution of the Right to a Fair Trial
Introduction to Part 2
4 The Right to a Fair Trial
4.1 Formulation and Importance of Article 6(1) echr
4.2 Influence of the Case-law of the ECtHR on Domestic Legislation
4.3 External Influences on the Case-law of the ECtHR
5 Applicability of Article 6(1) ECHR
5.1 Maintaining Pockets of State Sovereignty
5.2 Applicability of Article 6(1) ECHR to “Civil Rights and Obligations”
5.3 Applicability of Article 6(1) ECHR to “Criminal Charges”
6 The Right to a Fair Trial – A Tool for Self-Regulation
6.1 The Process Towards Justiciability
6.2 The Role Played by the Academic Community
6.3 The Zeitgeist
6.4 Cooperation with the ECtHR – Four Possible Models
PART 3
Fair Trial and the Independence of the Commission as the Competition Enforcement Agency of the EU
Introduction to Part 3
7 The Debate on Independence at the Crossroads of the Administrative State, Delegation and IRA s
7.1 The Rise of the Administrative State, Delegation and IRA s
7.2 The UNCTAD
7.3 oecd Roundtable on Changes in Institutional Design of Competition Authorities
7.4 International Competition Network
7.5 Independence of European Regulators
7.6 The European Competition Network
7.7 Empowering NCA s – Directive 1/2019
7.8 The Difficult Case for the Independence of the European Commission
8 The Case-law of the ECtHR on the Right to an Independent and Impartial Tribunal
8.1 Established by Law
8.2 Independence
8.3 Impartiality
8.4 The Relevance of the ECtHR’s Case-Law on Independence and Impartiality
9 The Structure of the European Commission as Enforcer of Competition Law
9.1 The European Commission as a Political Institution
9.2 The European Commission as an Autonomous Bureaucracy
10 The Procedure for Enforcement of Article 101 and 102 tfeu
10.1 The Investigation Phase
10.2 Prohibition Procedure
10.3 Commitments Procedure
10.4 Procedure for Rejection of Complaints
10.5 Settlement Procedures
11 The Commission’s Powers of Investigation
11.1 Sanctions
11.2 Leniency
11.3 Sector Inquiries
11.4 Requests for Information
11.5 The Power to Take Statements
11.6 Powers of Inspection
12 Limits on the Commission’s Powers of Investigation
12.1 General Principles of Limitation
12.2 The Rights of the Defence
13 A Risk-Based Framework for Safeguarding the European Commission’s Independence
13.1 Identifying the Risks to Independence in EU Competition Law Proceedings
13.2 Mitigating the Identified Risks
PART 4
Fair Trial and Judicial Review of EU Competition Law
Introduction to Part 4
14 Case-law of the ECtHR on the Right to an Effective Judicial Review
14.1 Judicial Review in Administrative Law Disputes
14.2 Judicial Review in Disputes Involving “Criminal Charges”
14.3 Judicial Review in Banking Law Disputes
14.4 Non-Pecuniary Damage for Breach of the Right to Judicial Review
15 Relevance of the ECtHR’s Case-law on the Right to Judicial Review – A Story of Three Models
15.1 Exercise of Administrative Discretion within Polycentric Issues
15.2 Exercise of Administrative Discretion for Monocentric Issues
15.3 Exercise of Administrative Discretion as Policing Power
16 Case-law of EU Courts on the Right to an Effective Judicial Review
16.1 Right to Effective Judicial Protection
16.2 Right to Judicial Review in Competition Law cases – A Matter of Constitutional Design
16.3 Limited Review of Legality – Design by Self-Interpretation
16.4 Unlimited Review of Fines
16.5 Margin of Appreciation of the EU Commission and Unlimited Review of Fines
16.6 The Right to a Fair Legal Process in EU Law
17 Is Judicial Review A Cure for Bigness?
17.1 Adjudication and Economic Evidence
17.2 Adjudication and the Administrative Man
17.3 Adjudication, Bias and Monoculture
17.4 Adjudication and Problems of Organized Complexity
Step into the Future: Bigness and Judicial Power
Works Cited
Index
Lawyers and researchers interested generally in fundamental rights, EU competition law and the interplay between the two or particularly in due process, independent decision-making or judicial review.