The Trade and Industry Appeals Tribunal has confirmed that high standards apply to the inter-departmental Chinese walls within the Competition Authority. The tribunal upheld the Rotterdam District Court's earlier ruling that meddling by the authority's legal department in the investigation of an alleged competition law infringement breached the Chinese walls set up between the legal department (responsible for levying sanctions) and the competition department (responsible for conducting investigations).
The authority's legal department had requested further information from a third party after a hearing on the statement of objections, which was subsequently used as evidence in the decision to impose a fine on the plaintiff. The tribunal deemed that the legal department's information request breached the Chinese walls between investigation and decision making within the authority. By doing so, the authority lost sight of the required objectivity in its decision-making process and thus created the appearance of bias. According to the tribunal, the Rotterdam District Court had been right to annul the authority's fining decision.(1) The authority has stated that the ruling will not impact on its current decision-making process, since "the collection of information as it took place in this particular case is not common practice".
The authority's statutory Chinese walls go one step further than the 'traditional' all-in-one system, according to which the European Commission and many other antitrust regulators seem to be organised. The European Court of Human Rights recently confirmed that such all-in-one systems of investigation and fining comply with the fundamental right to a fair trial, provided that they are safeguarded by sufficiently extensive review of the sanctioning decision by an independent court.
Advocate General Sharpston reached a similar conclusion in the appeals relating to the copper-tube cartel, in which the commission's "triple role of investigator, prosecutor and decision maker in competition law enforcement procedures" was criticised.(2) The European Court of Justice recently confirmed this view.
All-in-one systems, particularly that of the European Commission, thus seem to be safe – for the time being at least.
For further information on this topic please contact Jolling De Pree or Erik H Pijnacker Hordijk at De Brauw Blackstone Westbroek by telephone (+31 70 328 53 28), fax (+31 70 328 53 25) or email ([email protected] or [email protected]).
(1) In an unrelated later judgment, the tribunal clarified that these Chinese walls are not so impregnable to prevent authority board members from deciding on the statement of objections as well as on the levying of fines. See the tribunal ruling of October 4 2011, LJN: BT6521.
(2) The Advocate General stated in this respect: "In that context, unlimited jurisdiction to cancel, reduce or increase the amount, with no restriction as to the type of grounds (of fact or law) on which it can be exercised, must necessarily, in my view, provide the guarantee required by Article 6 ECHR – at least in theory."