Toward an EU Competition Court: “Article-6-Proofing” Antitrust Proceedings before the Commission?

Abstract

This article will assess the proposal made by the Confederation of British Industry (CBI) for the establishment of an “EU Competition court”, responsible primarily for the fast and effective review of merger decisions, and its implications for the judicial architecture and the wider institutional structure of the EU. It will argue that, rather than for merger control, the introduction of more exacting degree of judicial scrutiny, entrusted with a specialised court, may be necessary to secure the compliance of the EU antitrust enforcement proceedings with the notion of “administrative due process” enshrined in the European Convention on Human Rights. However, the article will demonstrate that the creation of this judicial body, endowed with the necessary powers to ensure consistency with the Convention requirements, despite being an appropriate solution, might constitute too wide a departure from the judicial and overall institutional structure of the EU and could thus require a Treaty amendment, which could lack political support. It will suggest that instead of altering the judicial structure of the EU the whole system for the enforcement of the competition rules should be rethought to reconcile the need for speedy and final judicial scrutiny with the observance of “fairness” principles.