European Competition Day, Athens April 2014

1. European Competition Day, AthensEuropean Competition Day, Athens
April 2014April 2014
Judicial review and the interplayJudicial review and the interplay
betweenbetween
procedural guarantees andprocedural guarantees and
the effectiveness ofthe effectiveness of
enforcementenforcement
Marc van der WoudeMarc van der Woude

2. IntroductionIntroduction
Why would procedural guarantees makeWhy would procedural guarantees make
enforcement less efficient?enforcement less efficient?
Why would judicial review interfere withWhy would judicial review interfere with
effectiveness?effectiveness?
Should judicial review be efficient?Should judicial review be efficient?

3. IntroductionIntroduction
Specific context of fundamental rightsSpecific context of fundamental rights
Comments on some recent cases onComments on some recent cases on
pprocedural guarantees in investigationrocedural guarantees in investigation
phasephase
Effective judicial reviewEffective judicial review

Unlimited jurisdictionUnlimited jurisdiction

Reasonable delayReasonable delay
Balance between private and publicBalance between private and public
enforcementenforcement

4. Procedural Guarantees inProcedural Guarantees in
Investigation PhaseInvestigation Phase
New : four interrelated phases

Investigation

Administrative hearing

Decisional phase

Review
Investigation

leniency and cooperation

Dawn raids and Information requests

5. Procedural Guarantees: Dawn RaidsProcedural Guarantees: Dawn Raids
Deutsche Bahn, T-289/11, 6 September 2013

No need for prior judicial warrant, if complete judicial review on
procedural safeguards

Safeguards (reasoning, legal assistance, only professional
documents, LPP, no obligation to confess, principles of sound
administration, right to oppose, right to record, national
safeguards, action for annulment and for damages)

Limited to subject matter and problem of random search: ex post
control and evidence

Commission decides on necessity and choice between
inspections or information requests, within limits of
proportionality principle

6. Procedural Guarantees:Procedural Guarantees: InformationInformation
RequestsRequests
Cement cases, 14 March 2014
Balance between efficiency and rights of
defence: no access to file in preliminary
investigation phase, but ex post judicial review
Commission decides on necessity, but again ex
post control

in light of proportionality principle (including
necessity and workload)

no obligation to confess

7. Effective Judicial Review:Effective Judicial Review:
Unlimited JurisdictionUnlimited Jurisdiction
The Menarini constraint on systems of
administrative enforcement: unlimited jurisdiction
Power for review court to have its opinion on fine,
even in the absence of illegality (CEPSA)
No ex officio control, but possibility to substitute
reasons (Marine Hose)
Possibility to put forward new evidence during
Court proceedings(Galp)
Not always favourable to applicant

8. Effective Judicial Review:Effective Judicial Review:
Unlimited JurisdictionUnlimited Jurisdiction
Conceptual and practical difficultiesConceptual and practical difficulties
PolicyPolicy  decisiondecision
Which criteria?Which criteria?
Role to play by applicants (Role to play by applicants (LG DisplayLG Display))
Limited review by ECJLimited review by ECJ

9. Effective Judicial Review:Effective Judicial Review:
Reasonable DelayReasonable Delay
Groupe Gascogne, C-58/12 P, 26
November 2013
Separate proceedings before other
chamber (exit Baustahlgewebe)
Period of inactivity of 3 years and 10
months
What kind of damage?

10. Effective Judicial Review:Effective Judicial Review:
Reasonable DelayReasonable Delay
Some findingsSome findings
Increase in number of pending cases inIncrease in number of pending cases in
20132013
Length of proceedings 46.4 months inLength of proceedings 46.4 months in
competition cases in 2013competition cases in 2013
Less competition casesLess competition cases
Need for reform by all stakeholdersNeed for reform by all stakeholders

11. Balance between Private andBalance between Private and
Public EnforcementPublic Enforcement
ENBW, C-365/12 P, 27 February 2014
End of access request on basis of Reg.
1049/2001
Regulation 1/2003 special regime

12. Concluding RemarksConcluding Remarks
Presentation focussed on two out of four
interrelated phases
In-depth ex post review allows for efficient
ex ante investigations
Importance of effective and efficient
judicial review for enforcement system as
a whole