Originally from:
International Antitrust Law & Policy: Fordham Competition Law 2010 - Hardcover
International Antitrust Law & Policy: Fordham Competition Law 2010 - PDF
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Chapter 10
CARTELS IN THE EU: PROCEDURAL
FAIRNESS FOR DEFENDANTS AND
CLAIMANTS
David Anderson & Rachel Cuff*
I. INTRODUCTION
As the level of fines imposed by the European Commission
(“Commission”) for cartel behavior continues to increase, so does the
concern regarding the fairness and stability of the procedures used by the
Commission to achieve such penalties. The EU system was developed as
an administrative one, without criminal or individual sanctions, but the
system has shifted over time. The fines imposed by the Commission have
risen to levels that are substantively akin to criminal penalties, and the
introduction of criminal sanctions at EU Member State level, and in other
major jurisdictions including the U.S. and Canada, has had a significant
impact on the position of companies investigated in the EU. There has
been a creeping criminalization of antitrust infringement in the EU,1 but its
system is designed with administrative sanctions in mind and as a result
lacks the rigorous procedural safeguards necessary to ensure due process
in such a regime.
Significant efforts have been made by DG Competition of the
Commission over recent years to render its processes more transparent
and subject to more internal scrutiny, including the recent publication of
best practice guidelines for antitrust proceedings (“Best Practices”) and
guidance on procedures of the Hearing Officers in antitrust
proceedings,2 as well as an explanatory note regarding its inspection
David Anderson & Rachel Cuff, Partner and Principal Knowledge Development Lawyer respectively, Berwin
Leighton Paisner LLP, Brussels