Stephen Kinsella, Mar 16, 2010
There are many criticisms of the oral hearing process. Indeed, there is a general growing tide of criticism of the manner in which competition law offenses in the European Union are investigated and prosecuted. It was partly in response to such concerns that on January 6, 2010 the European Commission published 3 papers setting out best practices in antitrust proceedings, best practices on submission of economic evidence, and a hearing officers’ guidance paper. The Commission publication of that guidance included an invitation to submit comments by March 3, and it is understood that the response has been high. However, it was questionable from the outset whether such comments would necessarily lead to any changes. Indeed the process of preparing the package of guidelines took place with some secrecy and there was, regrettably, little appetite to take notice of any external views. Nevertheless those views are being expressed and it is debatable how much longer they can continue to be ignored.
I have been interested for some time in improving the oral hearing process and, indeed, had suggested to the CPI Antitrust Chronicle that we run this issue before we learned of the new best practice proposals. I contributed to a number of responses on the hearing officer paper, and in doing so ended up with a laundry list, not so much of criticisms but of suggestions for changes that could usefully be made to the conduct of the oral hearings. I have listed some of them below. However I would like to initially focus on one improvement that I have long believed would deal, at a stroke, with many of the deficiencies of the hearing process. My suggestion would be that it should be possible, even if not imposed on every occasion, for the oral hearing to be public.
