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, i.e., 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.