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Smits, Catherine; Waelbroeck, Denis --- "When the Judge Prosecutes, Power Prevails Over Law" [2011] ELECD 800; in Govaere, Inge; Quick, Reinhard; Bronckers, Marco (eds), "Trade and Competition Law in the EU and Beyond" (Edward Elgar Publishing, 2011)

Book Title: Trade and Competition Law in the EU and Beyond

Editor(s): Govaere, Inge; Quick, Reinhard; Bronckers, Marco

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857935663

Section: Chapter 28

Section Title: When the Judge Prosecutes, Power Prevails Over Law

Author(s): Smits, Catherine; Waelbroeck, Denis

Number of pages: 9

Extract:

28. When the judge prosecutes, power
prevails over law*
Catherine Smits and Denis Waelbroeck**

As is well-known, the right to a fair trial as enshrined in the European
Convention for the Protection of Human Rights and Fundamental Free-
doms (ECHR) implies that charges shall be determined by an independent
and impartial tribunal at first instance, following a hearing of the parties
that is public and held before the persons actually adjudicating the case. In
the absence of this, at the very least, in the few cases where the European
Court of Human Rights (ECtHR) accepts that sanctions be imposed by
administrative authorities (generally minor offences), a court should exer-
cise full jurisdictional review over the decision taken by the authority.
The case has already repeatedly been made that EU competition law
proceedings under Articles 101 and 102 TFEU do not satisfy these require-
ments.1 This is so in particular as investigational, prosecutorial, decisional,
and policy-making powers are centralized in the hands of the European
Commission. Moreover EU Courts exercise only `marginal' or `light touch'
judicial review over Commission decisions in this area. Despite the Com-
mission's reluctance to engage in any form of significant reform as regards
its current procedures,2 it is our contention that fundamental reform of EU


*
`Ubi iudicat qui accusat, vis, non lex, valet', Publilius Syrus, Sentenciae, first
century BC.
**
The authors are indebted to Donald Slater for his invaluable comments on
the text.
1
GCLC, Report of Working Group III, `Enforcement ...