European Competition Day, Athens European Competition Day, Athens April 2014April 2014

Judicial review and the interplay Judicial review and the interplay betweenbetween

procedural guarantees and procedural guarantees and the effectiveness ofthe effectiveness of

enforcementenforcement

Marc van der WoudeMarc van der Woude

IntroductionIntroduction

Why would procedural guarantees make Why would procedural guarantees make enforcement less efficient?enforcement less efficient?

Why would judicial review interfere with Why would judicial review interfere with effectiveness? effectiveness?

Should judicial review be efficient? Should judicial review be efficient?

IntroductionIntroduction

Specific context of fundamental rightsSpecific context of fundamental rights

Comments on some recent cases on Comments on some recent cases on pprocedural guarantees in investigation rocedural guarantees in investigation phasephase

Effective judicial review Effective judicial review Unlimited jurisdiction Unlimited jurisdiction Reasonable delayReasonable delay

Balance between private and public Balance between private and public enforcementenforcement

Procedural Guarantees in Procedural Guarantees in Investigation PhaseInvestigation Phase

New : four interrelated phases Investigation Administrative hearing Decisional phase Review

Investigation leniency and cooperation Dawn raids and Information requests

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

Procedural Guarantees: Procedural Guarantees: Information Information 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

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

Effective Judicial Review: Effective Judicial Review: Unlimited JurisdictionUnlimited Jurisdiction

Conceptual and practical difficultiesConceptual and practical difficulties

Policy Policy decision decision

Which criteria?Which criteria?

Role to play by applicants (Role to play by applicants (LG DisplayLG Display))

Limited review by ECJLimited review by ECJ

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?

Effective Judicial Review: Effective Judicial Review: Reasonable DelayReasonable Delay

Some findings Some findings

Increase in number of pending cases in Increase in number of pending cases in 20132013

Length of proceedings 46.4 months in Length 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

Balance between Private and Balance 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

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