European Competition Day, Athens European Competition Day, Athens April 2014 April 2014 Judicial review and the Judicial review and the interplay between interplay between procedural guarantees and procedural guarantees and the effectiveness of the effectiveness of enforcement enforcement Marc van der Woude Marc van der Woude
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European Competition Day, Athens European Competition Day, Athens April 2014April 2014
Judicial review and the interplay Judicial review and the interplay betweenbetween
procedural guarantees and procedural guarantees and the effectiveness ofthe effectiveness of
enforcementenforcement
Marc van der WoudeMarc van der Woude
IntroductionIntroduction
Why would procedural guarantees make Why would procedural guarantees make enforcement less efficient?enforcement less efficient?
Why would judicial review interfere with Why would judicial review interfere with effectiveness? effectiveness?
Should judicial review be efficient? Should judicial review be efficient?
IntroductionIntroduction
Specific context of fundamental rightsSpecific context of fundamental rights
Comments on some recent cases on Comments on some recent cases on pprocedural guarantees in investigation rocedural guarantees in investigation phasephase
Balance between private and public Balance between private and public enforcementenforcement
Procedural Guarantees in Procedural Guarantees in Investigation PhaseInvestigation Phase
New : four interrelated phases Investigation Administrative hearing Decisional phase Review
Investigation leniency and cooperation Dawn raids and Information requests
Procedural Guarantees: Dawn RaidsProcedural Guarantees: Dawn Raids
Deutsche Bahn, T-289/11, 6 September 2013 No need for prior judicial warrant, if complete judicial review on
procedural safeguards Safeguards (reasoning, legal assistance, only professional
documents, LPP, no obligation to confess, principles of sound administration, right to oppose, right to record, national safeguards, action for annulment and for damages)
Limited to subject matter and problem of random search: ex post control and evidence
Commission decides on necessity and choice between inspections or information requests, within limits of proportionality principle
Procedural Guarantees: Procedural Guarantees: Information Information RequestsRequests
Cement cases, 14 March 2014
Balance between efficiency and rights of defence: no access to file in preliminary investigation phase, but ex post judicial review
Commission decides on necessity, but again ex post control
in light of proportionality principle (including necessity and workload)