Ulrich Soltsz, Mar 16, 2010
By putting great emphasis on the oral hearing, the new Best Practices package seems to suggest that, in the Commission’s view, the hearing should be one of the cornerstones of due process in a cartel investigation. According to section 3.1.5 of the Best Practices in antitrust proceedings, the purpose of the hearing is to “allow the parties to develop orally their arguments which have already been submitted in writing and to supplement, where appropriate, the written evidence, or to inform the Commission of other matters that may be relevant.” The fact that the hearing is not public should, in the Commission’s view, guarantee that all attendees can express themselves freely and without constraint.
Unfortunately, the reality does not yet match these bold statements. Under the current practice, oral hearings seem to be viewed by the Commission more as a mere formality (and possibly also as a burden) rather than an opportunity to elucidate the legal and factual background of a case. This is deplorable. Given the fact that fines imposed by the Commission are arguably of a criminal or quasi-criminal nature, the process leading to their imposition should contain the same safeguards as those provided for in a criminal proceeding.
