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Title: The institutional effects of due process in EU and national competition law enforcement: tailoring legitimacy?
Authors: Van Cleynenbreugel, Pieter #
Issue Date: 22-Mar-2012
Host Document: In Search of Effectiveness- Current Trends and Challenges in Competition Law Enforcement
Conference: In Search of Effectiveness- Current Trends and Challenges in Competition Law Enforcement edition:6 location:University College Dublin School of Law date:22 March 2012
Abstract: ‘Due process’ has grown into a hallmark of EU competition law enforcement. Fundamental procedural rights like the right to be heard or the right to judicial review now provide a generally accepted basis for improving the legitimacy and effectiveness of competition law enforcement. Emphasis on procedural guarantees also triggers important – but largely overlooked – institutional consequences. In responding to due process challenges, supranational and national enforcement agencies have been and still are invited to adapt to newfound procedural realities. These adaptations result in the gradual convergence of formerly diverging institutional arrangements into a single EU ‘due process’ institutional model.
This paper frames the converging institutional role of due process in EU competition law enforcement and assesses the ways in which it affects our understanding of legitimate competition enforcement. A first part analyses two recent institutional evolutions that resulted in institutional transformations at either the national or the supranational level. On the one hand, the Court of Justice mandated transformations in national competition law enforcement systems for the sake of effective judicial review in its 2010 Vebic judgment. On the other, the Commission adapted its Hearing Officer’s terms of reference with a view to enhance due process at the EU level and to remain on a par with particular national evolutions. In both instances, concrete institutional modifications resulted from the interplay between due process, EU competition procedure and national enforcement structures. A second part integrates both examples into a conceptual EU ‘due process’ convergence framework, which provides markers for future developments in institutional transformation. The identified convergence framework in turn calls for a reassessment of the indicators of legitimate competition law enforcement. A third part of this paper therefore outlines a proposal for new indicators and discusses their potentially transformative effects on the proxies of legitimate competition enforcement.
Publication status: accepted
KU Leuven publication type: IC
Appears in Collections:Centre for a Common Law of Europe (-)
# (joint) last author

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