Yearbook of European Law - Vol. 14

By Francis Geoffrey Jacobs | Go to book overview

Should the Decision-Making Power in EC Antitrust Procedures be left to an Independent Judge? -- The Impact of the European Convention of Human Rights on EC Antitrust Procedures

DENIS WAELBROECK AND DENIS FOSSELARD


I. Introduction

In the preparation of the Intergovernmental Conference of 1996, numerous proposals have already been made concerning the institutional structure of the European Community. In this context, it seems important to give some thought in particular to the institutional structure applicable in EC antitrust procedures. Hereafter, we wish to revert in particular to the already much-debated question as to whether the decision-making power in EC antitrust procedures should be left to an administrative body (be it the Commission or any sort of independent 'cartel office' as proposed by the German Government), or whether in this area, the powers of investigation and of decision should not be separated, the latter being left to an independent judge. This question has in our opinion become particularly topical in view of a possible accession of the European Community to the European Convention of Human Rights (hereafter referred to as ECHR).1

However, the issue arises even if the Community were not to acceed to the ECHR. Indeed, it is well-known that already according to the present case-law of the European Court of Justice, the institutions of the Community must respect 'fundamental human rights' which form part of the general principles of Community law.2 It is also well-known that,

____________________
1
See the request for an opinion from the Court of Justice by the Council on this issue on 25th April 1994, OJ 1994 C 174/B. See more specifically also E. Cohen Jonathan, "L'adhésion de la Communauté européenne à la Convention européenne des droits de l'Homme", 17 JTDE49-53 ( 1995); see also Denis Waelbroeck , "Fundamental Rights in the European Union -- Possible development in the years to come", in The Developing Role of the European Court of Justice (European Policy Forum, to be published).
2
See Case 29/69 Stauder v City of Ulm [ 1969] ECR419.
© Denis Waelbroeck and Denis Fosselard, 1995, Avocat and Lecturer at the Université libre de Bruxelles, and Avocat, respectively. The authors would like to thank Mr Antonio Bultrini from the Council of Europe, for his help and suggestions.

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