Article

A Prosecutorial Model could lead to a more Efficient Enforcement of Article 101 TFEU in Cartel Cases

Andrea Usai

PhD Candidate in EU Law, University of Bologna-Université de Strasbourg; LLM in EU Competition Law, King’s College London

 

Introduction

This article seeks to contribute to the ongoing debate on whether a separation of powers between the prosecutorial and the adjudicative functions, which are now both held by the European Commission (“EC”), could entail a more efficient enforcement of Article 101 of the Treaty on the Functioning of the European Union (“TFEU”) in cartel cases. In the first part it will be explained how the procedure works and then why the current concerns regarding fairness could jeopardize efficiency. Indeed, although the scope of this paper is not of going deeply into the alleged lack of fairness in the Enforcement System, it is important to understand that the debate on fairness could affect efficiency.

However, should it be discovered that there could be fairness concerns, would it be acceptable to have a fair system which is not efficient? In other words, are we sure that a prosecutorial model can foster efficiency? Is there any risk that a reform will make the system worse off? The literature is mostly concerned about fairness. In this paper it is argued that a prosecutorial model can be more efficient than an administrative one. Indeed, efficiency means fewer costs and more benefits. Deterrence can be fostered together with the credibility of the whole system. The possibility of having wrong decisions can be drastically reduced and the risks of bias in the decision-making process completely avoided.

Therefore it analyses, in the light of what the game-theory calls the cut-off strategy, whether the current structure of the system can be considered as efficient enough. After taking into account the risks of too long proceedings and bias in the decision-making process that seem to be typical of the administrative model, it will be shown how the judicial review can be fostered if the EC acts as a prosecutor before a specialized Competition chamber within the General Court (“GC”).

1. How the procedure works

According to the procedure laid down in Reg. 1/2003, the EC’s procedure usually starts with the Statement of Objections (“SO”), which contains all the elements of facts and law against the alleged anticompetitive agreement. Indeed, the SO is drafted by the members of Directorate General Competition (“DGCOMP”) and it is reviewed by the Legal Service, by an economist, the Director and the Director General and the Cabinet of the Commissioner for Competition. Afterwards, the undertakings, which are addressees of the SO, can make written replies and have a right to ask for an oral hearing.[i] Usually, the officials who drafted the SO take part in the hearing together with some of the other officials already involved.[ii] After the hearing takes place, the same officials who wrote the SO will write the decision.[iii] At this stage of the proceedings, as regards cartel cases, there is normally no peer review examining the case. The decision is commented on by the Advisory Committee, which brings together competition experts from the Member States. In the end, the Competition Commissioner proposes it to the other Commissioners. In fact, formally speaking, the final decision is taken by the Commissioners and takes the form of a Commission’s decision. To put it differently, it seems clear that the same officials both write the SO and draft the final decision.

As it has already been stressed, the scope of this paper is not to go deeply into the concerns regarding fairness, which have been raised by scholars and practitioners. There is still a big debate between those who argue that the system is fair and those who firmly believe that it is not fair at all. Indeed, it is claimed that although fairness is very important, the enforcement of competition law, especially in cartel cases, should focus primarily on efficiency[iv] in order to protect consumers and to guarantee the proper functioning of the Internal Market.

2. Efficiency

It can be certainly argued that an eventual structural reform, in order to be deemed to foster efficiency, should first of all not entail any loss of effectiveness when enforcing Art. 101 TFEU. Even more, an eventual reform should entail further benefits and diminish the current costs that can be eliminated. In other words, the big radical structural reform that this paper suggests should guarantee effectiveness and foster efficiency. Indeed, if it could be proved that an adversarial model could be more efficient in cartel enforcement proceedings, the debate regarding fairness could be read from a different point of view. As long as the separation of the three functions[v] now held by the EC can provide for an efficient system saving time and money and providing for better outcomes, there would be no reason to speak about fairness and due process in Competition Law proceedings.

To begin with, it should be pointed out what efficiency means. Efficiency is usually maximised when it is possible to have fewer costs. What does ‘fewer costs’ mean? It means to save time and money and to provide for tools that reduce the risks of bias, the risks of inaccurate decisions and the risk of having too many cartels which are not detected or not punished properly. Moreover, ‘fewer costs’ also means diminishing the risk of having a non-credible system. Then, efficiency must necessarily mean more benefits. To be more explicit, it means faster proceedings, less costly procedures, more objectively taken decisions, more accurate decisions and maximisation of the number of cartels which are detected and punished. Efficiency means also fostering deterrence and the credibility of the system. Moreover, the understandable concerns about efficiency should also take into account the most efficient way to get a more efficient system. In other words, the structural reform that could be done in the fastest and easiest way should be preferred. In the EU, this would be reformation without going through the Treaty amendment procedures. In this case, it is argued that it would be possible to use Art. 103 (1) TFEU.[vi]

Furthermore, one way to foster efficiency is to act strategically.[vii] Sometimes it could be in a player’s interest to reduce his own freedom of future action and to create a non-return situation, an emergency situation. For instance, this strategy was taken by Cortés who burned his own ships after his arrival in Mexico. He deliberately eliminated the option of going back to Spain. Without ships to sail back home, Cortés made it clear to his crew that they could either fight and destroy their enemies or perish. No matter that his soldiers were enormously outnumbered. This strategy, which at the beginning scared his army and risked mutiny, was the best solution. In fact, Cortés put himself and his crew in an urgent and one-way situation. They could not fail. Failure would have certainly meant death. Indeed, they did not fail. They fought and they won. This is to demonstrate that, in order to work out what is best, it is often a good strategy to cut off all the different options that you have but one.

Game Theory can be very helpful in our analysis. In order to foster efficiency in antitrust proceedings regarding cartels cases enforcement, there are good arguments in favour of a separation of the investigative, prosecutorial and adjudicative functions, at the present held by the EC. It seems to be arguable that if the EC cuts off its adjudicative option, leaving it to the Courts, the whole system can be made better off. This is the background of our legal and economic analysis. However, as it does not seem to be the case of giving things for granted, this paper will look at the length of the proceedings and at how the judicial review works from an efficiency point of view.

2.1. Length of the proceedings[viii]

The first cluster of criticisms deals with the length of the proceedings. In fact, as it has already been pointed out, one of the alleged advantages of the current system is that an administrative model can lead to efficiency because it provides for faster proceedings. Moreover, according to the statistics and to the problems that are usually dealt with in the national legal systems, one of the main issues regarding the administration of justice is the delays that cases encounter when they get stuck in the Courts. As it seems to be clear from the statistics regarding the Courts, the delays of the cases are mainly at the level of the GC. In fact, the average[ix] of the length of the proceedings was 40 months at the level of the GC and 35 months at the level of the European Court of Justice (“ECJ”) between 2000 and 2005. Then, between 2006 and 2010 the average goes up significantly to 54 months at the level of the GC and down to 25.5 at the level of the ECJ.

These data show two main issues: the first one is, as it has already been pointed out, that the delays concentrate at the GC level. Therefore, an eventual reform should take into consideration a solution which would be able to reduce these delays. Secondly, they show that a huge percentage of cases go on appeal before the Courts. The ease with which appeals can be brought and the fact that neither the GC nor the ECJ can substitute the EC’s decision with their own decision, as it is possible in the UK, can jeopardise efficiency.

This paper argues that also the length of the proceedings before the Commission is relevant. The average of the length of the proceedings is between one and two years from the issuing of the SO and the adoption of the final decision. In this case too, a prosecutorial model could make the system better off as there would be no issuing of the SO, no oral hearing before the Hearing Officer, no internal debate with checks and balances and no draft and final decision. There would be no supplementary SOs and remittals from the Court to the Commission. In a prosecutorial model there would be the EC acting as a prosecutor concerned about preparing its strong case to be brought before the Court. Indeed, it would be possible to save time and it would be likely that the number of cases going on appeal will be reduced, either because the cases that the EC will bring will be much stronger or because there will be more settlements as it happens now in the US.

2.2. Judicial review

One of the key issues of the current system is what happens if the reviewing court finds fault with the decision. At the present, the EU system provides for Courts that can only annul the decision but they cannot themselves take a new one substituting their decision for the EC’s. Indeed, the EU model works very differently if compared to the UK model, where the Competition Appeal Tribunal can substitute its decision for the Office of Fair Trading one. In fact, this paper argues that the GC does not exercise extensive review and that therefore it does not have full jurisdiction. The EU courts are allowed only to review the manifest errors.[x] Indeed, the GC exercises self-restraint when it comes to “complex and factual economic assessments”. Moreover, It does not use properly its unlimited jurisdiction on fines[xi]. This paper argues that the GC and the ECJ do have unlimited jurisdiction as regards fines and penalties but they lack it when it comes to facts. This problem is brilliantly emphasised in a recent case[xii] where even though the Commission had found a single and continuous agreement in the Belgian removals sector, the GC found that the applicant had participated in only part of the practices. Therefore, the GC, not being able to substitute its decision for the EC’s, had to annul the decision entirely. The likely result will be that the EC will have to readopt a new SO and a new decision and a second round of judicial review.

Another key issue is whether the Courts defer to the EC’s decisions. It is important to go deeply into this point, because it seems to be that not only do the Courts have no full judicial review which contributes to render the system inefficient, but they defer to the EC’s decisions. This paper suggests that the alleged deference of the Courts should be resolved by reforming the structure of the enforcement system. It seems to be arguable that a prosecutorial model would be much more efficient from the Courts’ perspective, as they would be given the possibility of taking the final decision. To put it differently, this paper suggests that even though it might be argued that the Courts could do their job better, the answer to this criticism stays in the reform itself. A better job could be done only if a chamber with full review is established within the GC and the EC acts as a prosecutor before it.

Moreover, it might be argued, as many practitioners do, that the risk of having a prosecutorial model is that judges are not well trained in Competition Law (such as in Ireland), instead of a strong tradition of judges deciding antitrust cases, as in the US. In other words, the risk would be that judges are not as prepared as the EC’s officials are. However, this would not be the case. First of all, because there are already EU judges who are experts in Competition Law. Secondly, it would always be possible to use Article 255 TFEU in order to make sure that there will be judges well trained in Competition Law.

The idea of establishing a specialised chamber of Competition Law cases within the GC and using Art. 255 TFEU can function well in the current system too. Indeed, Art. 255 TFEU is already being used. However, it is argued that an administrative system with a specialised chamber and with Art. 255 TFEU fully applied would not be optimal, from an efficiency perspective, for the abovementioned reasons. A prosecutorial model could entail more efficiency. It could reduce the length of the proceedings, both at the Courts’ and at the EC’s level, apply the “cut-off” strategy, and reduce the risks of bias in the decision making process. Moreover, once a prosecutorial model is established, a specialised chamber within the GC would avoid the risk of having bad outcomes.

Conclusions

It seems to be clear that, for the abovementioned reasons, a prosecutorial model would entail a much more efficient enforcement in cartel cases. Firstly, because of the fact that the length of the proceedings could be drastically reduced at the Courts’ level and at the Commission’s level. Secondly, the system could be made better off with providing for a specialised chamber within the GC and giving this chamber the possibility of having unlimited jurisdiction on facts too. In this way, the new Competition Chamber would be able of taking the final decision. Moreover, it should be pointed out that a prosecutorial model should not diminish the deterrent effect of the fines and of the new settlements procedures.[xiii]


[i] The Hearing allows the addressees of the SO to present their defense arguments not just on procedure but also on substance. However, the final report of the Hearing Officer is on procedure only.

[ii] See J. Temple Lang, “Three possibilities for reform of the procedure of the European Commission in Competition cases under Reg. 1/2003, in Carl Baudenbacher (Ed.) “Current Developments in European and International Competition Law” (ICLF 2010) presented at the 17th St. Gallen International Competition forum Helbing Lichtenhahn, Basel 2011, Vol. 12

[iii] Ibid.

[iv] In this case, as it is possible to understand from the debate about fairness and due process, those who argue that the system is not fair, argue in favour of a prosecutorial model in order to comply with the European Convention of Human Rights criteria. This paper points out that, regardless of fairness and due process, a prosecutorial model can be much more efficient from different perspectives.

[v] As it has already been pointed out, the scope of this article is not to go deep into the issue of fairness, it could be argued that the fact in itself that the debate continues is jeopardising efficiency as it increases the already high likelihood of going on appeal and it contributes to diminish deterrence and the credibility of the system. See Alec Burnside, “Mario Monti should not be judge and jury”, Financial Times, 21 October 2002, p 17; and “Enforcement of Competition Law in Europe is unjust and must change”, The Economist, 18 February 2010.

[vi] Article 103 (1) reads as follows: “The appropriate regulations or directives to give effect to the principles set out in Articles 101and 102 shall be laid down by the Council, on a proposal from the Commission and after consulting the European Parliament”.

[vii] See A. Dixit and B. Nalebuff. “Thinking strategically. The Competitive Edge in Business, Politics and Everyday Life”. (New York: W.W. Norton & Company, 1991)

[viii] According to the recent developments of the European Courts’ case law, it could be argued that the length of the proceedings both before the Courts and the Commission is problematic also as regards fairness.

[ix] See D. Gerard, “Judicial Review of Cartel Decisions”, in Mario Siragusa and Cesare Rizza, eds., EU Competition Law, Vol III. Cartel Law: Restrictive Agreements and Parctices between competitors, Claeyes and Casteels, 2007, Chapter 5

[xi] Ibid.

[xii] Case T 210/2008, Coppens v Commission, par 36

[xiii] For a detailed analysis of the issues, see W. Wils, “The Use of Settlements in Public Antitrust Enforcement: Objectives and Principles” (2008) 31 (3) World Competition; See also W. Wils, “Optimal Antitrust Fines: Theory and Practice” (2006) 29(2) World Competition; See also  W. Wils, “Leniency in Antitrust Enforcement: Theory and Practice” (2007) 30 (1) World Competition