Volume 8 - Issue 3
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Competition Law Review - Volume 8 Issue 3
Editorial - Both Sides Now
This paper addresses one of the intricacies of international competition law enforcement, namely the diversification of legal instruments used for bilateral cooperation. To name only a few: why are memorandums of understanding, dedicated competition cooperation agreements, competition law provisions in free trade agreements, and policy dialogues used in parallel to attain bilateral cooperation on competition law enforcement? What is the added legal value of each instrument? Is their added value to be found in political considerations? The argument put forward in this paper is that a parallel can be drawn between the internal and external functions of competition law. As competition law is not a goal as such within the EU, but in general serves the optimal functioning of the Single Market, the function of international cooperation on competition law matters is not solely to be found in competition considerations, but serves other goals as well. Therefore, the fact that a number of different objectives are pursued may explain the use of several distinct instruments for cooperation on competition law issues.
In the article I argue that there is a need for the greater convergence of European procedural standards applicable in competition proceedings before the European Commission and competition proceedings before the National Competition Authorities. In order to prove this I use three main arguments. To begin with, I show that the differences in procedural standards applicable in the case of these two proceedings exist and influence the level of protection of entities participating in these proceedings. In this respect, I conduct the analysis of the EU and Polish competition procedure and I conclude that Polish competition procedure offers a lower level of protection of procedural rights. Additionally, I observe that in the EU free circulation of evidence among the members of European Competition Network takes place despite the differences in procedures that are used when collecting this evidence. I analyse also critically the rules governing allocation of cases in the ECN. Next, I show that the applicability of Article 6 of the ECHR to both the proceedings before the European Commission and the proceedings before the NCAs require the recognition and observance of the similar procedural standards. I argue the introduction of such standards is indispensable as the competition proceedings concern criminal accusations in the sense of Article 6 of ECHR. Finally, I observe the recognition and observance of similar procedural standards in competition proceedings is the consequence of binding character of the EU Charter of Fundamental Rights. In the conclusions I discuss how a convergence of procedural standards may be achieved.
This contribution outlines and evaluates the emergence of judicially mandated ‘institutional assimilation’ in EU competition law. It argues that the European Court of Justice’s 2010 Vebic judgment reflects a new assimilation approach to national institutional autonomy in the realm of decentralised EU competition law enforcement. According to that approach, the Court considers itself directly competent to determine the institutional outlook of national competition authorities called upon to apply EU competition law. Whilst an institutional assimilation approach enhances the uniform application image of EU competition law across the Member States, it also incorporates important new legitimacy concerns that warrant resolution.
The theme of this paper is the analysis of the current situation regarding private enforcement of competition law in Serbia, with special emphasis on obstacles that should be overcome if it is to actually become noticeable in practice. The current legal framework in Serbia is not specially geared to promote private enforcement, and some improvements in this regard happened only recently with the inclusion of the provisions regarding follow-on actions in the newest competition law statute. Generally speaking, however, there are currently no provisions, either in statutes or other instruments, which would specifically deal with various aspects of private enforcement, such as the role of consumer associations or damage quantification. The lack of doctrinal works is not helpful in this regard either. This paper thus attempts to sketch the contours of the system for damages actions, including stand-alone actions, within the current rules of competition law, the law of civil procedure, and the general law of obligations. It also offers recommendations for reform and improvement.
• ©2003-2011 Angus MacCulloch & Andrew Matthews •