Independence and impartiality

 

Author Definition

 

Definition

Independence and impartiality are related aspects of the wider principle of justice, but are subtly different in their scope and, in the competition law context, their application. For judges (and courts) the United Nations Basic Principles on the Independence of the Judiciary provide:

1. The independence of the judiciary shall be guaranteed by the State and enshrined in the constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

Competition authorities are not independent in the same sense as courts but enjoy varying degrees of operational independence. The principle of impartiality can apply to authorities when taking decisions.

 

Commentary

The principle of judicial independence is acknowledged by most countries in the world, and certainly by those with a recognisable system of competition law. In the UK, the principle was recognised in the Act of Settlement 1701, which confirmed that judges no longer held office at the sovereign’s pleasure. In the European Union, the independence of the General Court and the Court of Justice are guaranteed by the Treaties (Articles 19 of the Treaty on the European Union and 251-254 of the Treaty on the Functioning of the European Union - TFEU) and their independence is a fundamental principle of EU law. In the United States of America, the principle of judicial independence is enshrined in the Constitution (Article III section 1).

Behind the principle, however, lie some important issues. Independence means being free from the interests of the state, that is the executive and the legislature, and from the parties in any dispute.

Freedom from state interest is illustrated in the United Kingdom by a 1770 case in which Lord Mansfield gave judgment against the background of a baying mob outside the court. He said:

“Reasons of policy are urged, from danger to the kingdom, by commotions and general confusion…The constitution does not allow reasons of State to influence our judgments: God forbid it should!”

In considering whether judges (and hence courts) are independent, relevant factors include the manner of the judge’s appointment, the duration of their term of office, guarantees against outside pressures and the appearance of independence. Within a judicial system there are further nuances, for example how to prevent junior judges from deferring to more senior colleagues in the hope of career advancement. These matters are dealt with by different regimes in different ways. All contribute in greater or lesser measure to the extent of actual judicial independence, ie the freedom of a judge to decide the case at hand freely and fairly.

Impartiality is closely linked to independence. Again, it is fundamental that a judge must decide a case on the evidence available, free from influence, bias or prejudice, whether actual or apparent. Judges generally swear an oath on accepting office. In the UK this is to administer justice “without fear or favour, affection or ill-will”.

There are subjective criteria (arising from the prejudice or bias of a particular judge) and objective criteria (whether the composition of the court offers sufficient guarantee of impartiality) for assessing impartiality. These approaches can merge in a given case.

An example of this was the Pinochet case, in the UK, where the House of Lords set aside a decision it had given on the grounds that one of the judges involved had a connection with a campaigning organisation such that apparently compromised his independence. It follows that judges must disclose any personal interest in and, if necessary, recuse themselves from, any case in which their impartiality might be in doubt.

In relation to competition authorities, different issues arise. The so called “independent agency model” under which many competition authorities have been established as separate “arm’s length” bodies, often with decision-making power, involves a degree of operational independence. There should be a secure legal basis for the authority’s remit (although not normally with the same constitutional status as the courts) and the same issues of appointment, term, remuneration, discipline, behaviour and removal from office apply. Each system deals with these matters in its own way.

In the EU, the enforcement of competition policy is entrusted to the Commission by the Treaties (Article 245 TFEU). The Commission is free, during its term of office, to use its decision-making power to enforce the law as it wishes, answerable to the European Parliament and the EU Courts, but not to the member states. In the USA, the Department of Justice, part of the executive, enforces antitrust law primarily through the courts. The terms of its independence are set by its statutory powers but its activities may be influenced, through the system of appointments, by the policies of the current administration. Similarly, the Federal Trade Commission, established by Act of Congress, has substantial freedom of action within its jurisdiction, but its activities may be influenced by the policy of the administration. In the UK, the Competition and Markets Authority (CMA) is established by statute with substantial operational freedom, accountable for its actions to parliament (and to the courts). The government controls its membership, terms of remuneration and budget. The government’s policy preferences are expressed through an (annual) communication to the CMA.

The principle of impartiality can also apply to authorities. Where an authority has a decision-making function, it must act fairly and impartially, at risk of appeal. Thus, in 2009, the UK Competition Commission’s decision in BAA Airports was quashed by the Competition Appeal Tribunal (CAT) on the grounds that one member of the deciding panel had connections that gave an appearance of bias. This finding was reversed on appeal but the principle that authority decisions should be free from actual or apparent bias was reaffirmed.

The case of Menarini, in the European Court of Human Rights (ECHR), illustrates how these principles apply differently to authorities and to courts. Article 6 (1) of the European Convention on Human Rights provides:-

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing…by an independent and impartial tribunal established by law.”

The ECHR examined whether the Italian competition authority’s processes met these requirements and found that they did not; but the majority decided that judicial review by the administrative courts was sufficient to satisfy Article 6. One judge (Pinto de Alberquerque J.) disagreed that the administrative courts’ review was sufficient. The majority approach has since been endorsed and followed by the Court of Justice of the EU and Article 47 of the Charter of Fundamental Rights reflects the wording of Article 6(1) of the European Convention.

This broadly reflects the position in the UK. A competition authority must seek to act fairly, but, because of its investigative and enforcement role, cannot necessarily give an impartial decision; it is for the courts to remedy any deficiency, normally by an appeal on the merits to the CAT.

 

Case references

R. v Wilkes 7 February 1770 (1770) 4 Burrow 2527, 98 E.R. 327

R. v Bartle and the Commissioner of Police for the Metropolis and ors ex parte Pinochet/ R. v Evans and anor and the Commissioner of Police for the Metropolis and ors ex parte Pinochet, House of Lords, decision of 25th November 1998, set aside by decision of 17th December 1998; final decision 24th March 1999.

BAA Limited v Competition Commission [2009] CAT 35; on appeal Competition Commission v BAA Limited 2010 [EWCA] Civ 1097.

A. Menarini Diagnostics S.R.L. v Italy (ECHR case no 43509/08), decision of 27th September 2011, (final text 27th December 2011).

Case C-386/10P Chalkor EU:C:2011:815 (decision of 8th December 2011).

Case C-501/11P Schindler EU:C:2013:522 (decision of 18th July 2013).

Author

  • UK Competition Appeal Tribunal (London)

Quotation

Peter Freeman, Independence and Impartiality, Global Dictionary of Competition Law, Concurrences, Art. N° 89141

Visites 196

Publisher Concurrences

Date 1 January 1900

Number of pages 500

 

Institution Definition

(...) The college of the Competition Authority comprises 17 members. In addition to the President and the four Vice-Presidents, who serve on a full-time basis, the College has 12 non-permanent members. The Chairman is appointed by decree of the President of the Republic on the advice of the National Assembly and Senate committees responsible for competition matters. The Vice-Presidents and non-permanent members are appointed by decree of the President of the Republic. The term of office of all members of the college is five years. They may not be dismissed, except in the cases strictly defined in Articles L. 461-1 and L. 461-2 of the French Commercial Code. This irrevocability of the terms of office of the members of the Autorité de la concurrence allows them to act independently and free from any possible pressure. In the event that the Authority has to deal with a dispute concerning a company in which a non-permanent member of the college is also an employee or director, the latter would be required to withdraw from the institution throughout the period during which the case is being examined, and would not be able to take part in the deliberations. This case has already occurred once and this withdrawal guaranteed the independence and impartiality of the decision rendered. Separation of functions between investigation and decision. Moreover, it is not the same body that investigates and decides. A functional separation between the investigative services, which conduct investigations and investigate contentious cases, and the college, which issues decisions and opinions, guarantees the impartiality of decision-making. Finally, it is sufficient to consult the decisions and opinions issued by the Competition Authority, in particular the sanctions it has been able to impose on companies in all sectors of activity, to see that the Authority has never hesitated to sanction obstacles to competition, acting independently and impartially, whatever influence it may have had on the managers of the companies concerned, whether public or private, national or global. © Competition Authority

 
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