ABSTRACT
The development of the rights of the defence in Community competition law enforcement has taken up a significant proportion of the Court’s caseload. An important starting point would be to note the decision of the European Human Rights Commission (EHRC) in Stenuit.69 In that case, the EHRC considered that competition law proceedings, which may lead to the imposition of a fine, are of such a nature that Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is applicable to them. The Community is not a signatory to the European Convention; however, it is clear from the Treaty and Court jurisprudence that the principle in Art 6, providing for a fair and public hearing within a reasonable time by an independent and impartial tribunal, is to be respected. In the Community context, administrative decisions by the Commission are not contrary to this general right because of the existence of a full and independent review, involving due process, before an independent tribunal, the CFI or European Court.70 Nonetheless, the Court has continually insisted that the Commission is obliged to give a fair hearing in terms of its procedure and administration. In response to this, the Commission has taken several steps, including the introduction of the Hearing Officer,71 to clarify and enhance the Commission’s hearings procedure with a view to improving the rights of the defence. Even the role of the Hearing Officer has been criticised as hearing officers may become entrenched in proceedings where the proceedings have been running for a lengthy period of time. The House of Lords report, Strengthening the Role of the Hearing Officer in EC Competition Cases, has noted that there is scope to enhance the Hearing Officer’s role and the rights of the defence, by, for example, providing for the disclosure of the Hearing Officer’s report.72 While some useful steps have been taken, it is clear that further developments will still be necessary. The new procedural Regulation will form the basis for future debate.73
