European Community Competition Procedure

By Luis Ortiz Blanco | Go to book overview

2

The Organization of Proceedings

A. General Characteristics of Procedure

1. The Nature of the Commission and its Proceedings1

The Commission is an administrative authority which plays several different roles at the same time. Its fanctions are legislative, administrative, and, consequently, political. The Commission not only enforces competition law but also creates it, and, by so creating and applying it, develops competition policy.

The European Court has stated, with regard to the Commission's administrative function, that, in applying Community competition law, it is not to be regarded as a 'tribunal' within the meaning of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950.2 This Article provides that every person is entitled to have his case fairly tried by an independent and impartial tribunal.3 The Commission is, on the contrary, an administrative body responsible for ensuring compliance with certain rules in the public interest of the Community. Like any administrative authority, the Commission undertakes preliminary inquiries, hears submissions of the parties and then adopts the decision, imposing fines if necessary.4 As the Court has held in competition cases, '[s]uch an investigation . . . does not constitute adversary proceedings between the companies concerned; it is a procedure commenced by the Commission, upon its own initiative or upon application [complaint], in fulfilment of its duty to ensure that the rules on competition are observed.'5

____________________
1
For a detailed description of the Commission's administrative procedure, see Joshua, J. M., "The right to be heard in EEC competition procedures", Fordham International Law Journal, Vol. 15, No. 1, 1991-1992, pp. 16-91.
2
European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 Nov. 1950, 213 U.N.T.S. 221, U.K.T.S. 71 ( 1953).
3
Joined Cases 209-215 and 218/78 Van Landewyck v. Commission (FEDETAB)[ 1980] ECR 3125, [ 1981] 3 CMLR 134, CCH ¼ 8687 at para. 81; and in Joined Cases 100-103/80, Musique Diffusion Française v. Commission (Pioneer) [ 1983] ECR 1825, [ 1983] 3 CMLR 221, CCH ¼ 880 at para. 7. More recently, see Case T 11/89 Shell v. Commission[ 1992] ECR II-757 at para. 39.
4
Fines under Art. 15 of Reg. 17 are not, as is made clear by Art. 15(4), of a criminal law nature but are administrative. In practice undertakings may, however, perceive little difference between Commission fines and criminal law fines.
5
See Joined Cases 142 and 156/84 BAT and Reynolds v. Commission[ 1987] ECR 4487, [ 1988] 4 CMLR 24, CCH ¼ 14-405 at para. 19 (parenthesis added). On the basis of this feature of the procedure, the Court classified the different procedural situations of undertakings involved in the proceedings as either subjects of complaints, on the one hand, or as complainants, on the other. Regarding the participation of complainants in procedures, see Chapter 7.II.C.3.

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