Questions of Legitimacy in the Europeanization of Competition Law Procedures of the EU Member States

Abstract

As less formal institutions such as the European Competition Network or the International Competition Network are becoming generators of soft law that may harden into national, EU or international law, the importance of legitimacy in agenda-setting and in the development of best practices, rules, and standards increases. This paper discusses the legitimacy of the harmonization process which takes place in the European Competition Network(ECN) on the basis of Regulation 1/2003, with regard to the administrative procedures of the Member States the NCAs apply when they enforce EU competition rules. This harmonization process is seemingly the result of voluntary harmonization among the Member States but in fact it is being steered and dominated by the EU Commission. This paper will examine the role of the Commission in initiating harmonization of national administrative procedures and institutional settings of the Member States by analyzing the Report on the functioning of Regulation 1/2003 and the Commission Staff Working Paper accompanying the Report on the functioning of Regulation 1/2003 , as well as through the recent work of the European Competition Network’s Working Group on cooperation issues and due process. The paper will look at the centripetal and centrifugal effects Regulation 1/2003 had on the substantive and procedural rules as well as the institutions of the Member States’ competition law. The paper critically assesses the methods of voluntary convergence that is taking place among the Member States and the way the Commission extends harmonization of the administrative procedural rules as well as certain substantive rules in the EU Member States.