The fundamentals of EC competition law Overview, institutions and procedure Karen Williams

1. The fundamentals of EC competition law Overview, institutions and procedure Karen Williams Hearing Officer for competition proceedings European Commission ABA Antitrust Section Spring Meeting 2005

2. The EU: expansion in scale and scope ■ Originally 6 Member States now grown to 25, with 450 million European citizens ■ Only designated competences, but for those competences has primacy over national law ■ Main focus initially on internal market objectives. Now much broader eg environment, research, plus monetary union and elements of political union

3. Fair competition – a basic objective from the start ■ Competition rules included in the Treaty (basic constitutional instrument) from the outset to provide level playing field within the internal market ■ Competition policy was also used as a tool to achieve the internal market goal ■ Main focus now : consumer welfare

4. Basic Treaty rules ■Prohibition of anticompetitive agreements (Article 81) ■ Prohibition of abusive behaviour (Article 82) ■ Regulation of state aids ■ Merger control not explicitly covered or regulated at EU level until secondary legislation (Merger Regulation) adopted in 1989 ■ Antitrust rules were sufficiently clear to be directly applicable by national courts. However, Commission played the central role

5. European Commission ■Executive of EU • Guardian of the Treaty - through recourse to the European courts - through direct enforcement (own decisions) • Shapes and manages a number of common policies • Initiates EU legislation ■ Coexists with • Legislative power : Council + Parliament • Judicial power : Court of First Instance (CFI) and European Court of Justice (ECJ)

6. Commission as competition regulator ■ Since 1960s Commission has had main authority to enforce 81 and 82 in individual cases – power of investigation, decision and fines (Reg. 17/62) ■ Since 1990 has also specific decision-making powers in merger control ■ Commission has also directed policy at EU level: • Regulating certain behaviours or sectors of the economy through “group” exemptions • Issuing guidelines (notices) • Main interlocutor in international cooperation

7. Modernisation of antitrust ■ In 1999 Commission launched major policy debate on reshaping regulation of antitrust within EU. ■ Aims of modernisation: • Giving Member States powers and obligation to apply Articles 81 and 82 where interstate trade is affected leading to more and better directed enforcement at Commission and national level • Enforcement to be based on investigation and complaints, rather than “voluntary” notifications with immunity from fines ■ New legislation adopted May 2004 (Reg 1/2003)

8. New legal framework for antitrust ■ Three enforcers of Articles 81 and 82 • Commission : • National Competition Authorities (NCAs) • Private persons through National Courts ■ Substantive rules are the same but national procedures remain • NCA’s however must guarantee same fundamental protection. Some “soft” harmonization in progress ■ National laws still applicable but very conditioned by EC law

9. Commission’s procedure ■ Decisions on cases proposed by Commissioner for Competition Policy, adopted by College of 25 Commissioners ■ Administrative procedure ■ Commission (DG Competition) investigates and decides ■ Right to be heard (due process) : a fundamental right ■ Procedure heavily rule-based with specific provisions for rights to be heard ■ Checks and balances : other Commission services (especially Legal Service), NCA’s and Hearing Officers

10. Role of Hearing Officer ■ Specific function of the Hearing Officer : guarantee due process by Commission ■ Independent of DG COMP and reports directly to the Commissioner for Competition policy ■ Organises and conducts oral hearings ■ Decides certain areas of dispute, eg access to documents on the Commission’s file, confidentiality ■ Can make observations to the Commissioner on any aspect of the case at any stage ■ Provides final report on due process to the College before decision adopted (report published)

11. Judicial review ■ Final and most significant guarantee of due process and substantive legality ■ Court of First Instance - reviews facts and law. Broad scope for review - unlimited review of fines ■ Ultimate appeal to European Court of Justice (ECJ) on issues of law