ARTICLES: EUROPEAN UNION - PROCEDURAL RULES - REGULATION 1/2003 - REVIEW - DUE PROCESS

The review of Regulation 1/2003: Any lessons to be learnt from the NCAs’ procedural rules?

Several contributions lodged within the framework of the public consultation on a possible review of Regulation 1/2003 have claimed, sometimes vigorously, that the European Commission should seek to reform Regulation 1/2003 in a manner that does not only focus on strengthening the powers of the NCAs but also tries to secure an improvement of the compatibility of the EU procedural rules with the principle of due process. This article aims to present some concrete proposals to improve Regulation 1/2003 current level of protection of due process. The proposals stem from a review of some of what is perceived by the authors as "the best" - or at least better - practices implemented in this regard at national level by some NCAs and in particular by the Italian Competition Authority. The authors believe that a similar exercise could be usefully performed by looking with attention at the systems existing in each Member State. It is considered that the interesting outcome deriving from such review relates to the identification of solutions to the current, suboptimal situation at EU level which have been applied in practice and which are, as a result, easily transposable at EU level with only limited amendments to Regulation 1/2003. Indeed, the objectively higher degree of protection that the principle of due process clearly enjoys in certain Member States does not seem to be to the detriment of effective enforcement. It is therefore suggested that the review of Regulation 1/2003 should be based on a two ways approach, the national systems importing some of the best practices existing at the EU level and the European Commission drawing inspiration, on the basis of a comparative approach, from the provisions that embody at national level a high level of protection of due process.

I. Introduction 1. On July 2014 the European Commission adopted a Communication for the 10th anniversary of Regulation 1/2003 (the “Communication”). [1] It might have been expected that this would have focused on different aspects of Regulation 1/2003, including any potential improvement of the rules relating to due process, particularly since many of the appeals filed against the European Commission’s decisions adopted under Regulation 1/2003 have focused on this specific issue (even if not always successfully). 2. Examples include: the recent case concerning the legality of information requests sent by the European Commission to cement producers in Europe, where the eventual judgment was unfavourable to the European Commission, [2] the lengthy litigation regarding dawn raids carried

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Denis Fosselard, Giulia Carnazza, The review of Regulation 1/2003: Any lessons to be learnt from the NCAs’ procedural rules?, February 2017, Concurrences N° 1-2017, Art. N° 83456, www.concurrences.com

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