By the Select Committee appointed to consider European
Union documents and other matters relating to the European Union.
STRENGTHENING THE ROLE OF THE HEARING
OFFICER IN EC COMPETITION CASES
1. The right to be heard, which is a key constituent
of the right to a fair trial, is an established principle of Community
law. There is, as the European Court of Justice has said,
a "general rule that a person whose interests are perceptibly
affected by a decision taken by a public authority must be given
the opportunity to make his point of view known". The right
to be heard, which in many cases is exercised in writing and does
not necessarily require an oral procedure, is well established
in our domestic law.
It is also part of the right to a "fair and public hearing"
provided by Article 6 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms (ECHR).
The principle has most recently been restated in Article 41 of
the EU Charter of Fundamental Rights, as part of the right of
every person "to have his or her affairs handled impartially,
fairly and within a reasonable time".
Safeguarding that right during the EC Commission's procedures
in the enforcement of the Community's competition laws is a special
responsibility of the Hearing Officer. This report examines his
role and how it might be strengthened.
2. An effective competition policy is one of the
cornerstones of the Single Market, bringing benefits to consumers
across Europe. Enforcement of the Community's competition rules
is undertaken primarily by the EC Commission on whom extensive
powers of investigation, decision and fining have been conferred.
Subject to review by the Community Courts, the Commission acts
as investigator, prosecutor and judge. In exercise of their rights
of defence, firms alleged to have infringed EC competition laws
have a right to be heard. They are entitled to know the case against
them and to reply to it. They can inspect the Commission's file.
In 1982, in response to criticisms of the quality of decision-making
by the Commission and its disregard for the rights of defence,
the Commission created the post of Hearing Officer. His initial
responsibility concerned the organisation, chairing and conduct
of the oral hearing. Over the years his powers and responsibilities
have increased to include supervision of the disclosure of documents
and access to the file. His terms of reference provide that "In
performing his duties the Hearing Officer shall see to it that
the rights of the defence are respected, while taking account
of the need for effective application of the competition rules
in accordance with the regulations in force and the principles
laid down by the Court of First Instance and the Court of Justice".
Nevertheless the Hearing Officer remains, controversially, a Commission
employee and member of the Directorate General for Competition.
3. Announcing on 24 May 2000 the appointment of Dr
John Temple Lang
as Hearing Officer, Commissioner Mario Monti said:
"I decided to increase
the importance and weight of the office of Hearing Officer by
proposing a high official with longstanding experience in the
field of competition law and policy. This reflects my conviction
that in view of the important functions of DG Competition and
the sometimes far-reaching effects of Commission decisions in
the field of competition, particular attention has to be paid
to the respect of procedural rights of parties. I have therefore
also given instructions to explore possibilities for strengthening
the role of the Hearing Officer in competition proceedings".
4. In response to Mr Monti's announcement, the Committee
decided to review the recommendations relating to the Hearing
Officer made in its 1993 Report, Enforcement of Community Competition
("the 1993 Report"), in the light of developments and
to consider how the role of the Hearing Officer might be strengthened.
In paragraph 111 of its 1993 Report the Committee recommended
(i) the Hearing Officers
should remain within DG IV, since they should be easily accessible
for informal consultation by rapporteurs;
(ii) the number of Hearing Officers should be
increased in line with their wider responsibilities and they should
have adequate support staff;
(iii) at least one Hearing Officer should be
appointed at A2 grade, and all Hearing Officers should be irremovable
except for serious professional misconduct;
(iv) in addition to their present functions in
regard to the oral hearing, and the conduct of the preliminary
hearing where this is requested, they should have interlocutory
powers to resolve procedural disputes between parties to a case,
including the case handlers within DG IV, on access to the file,
time limits and full disclosure of the case against a defendant;
(v) the Hearing Officer's Report should be sent
to the parties.
Those recommendations have in large part been adopted
and applied by the Commission. But the last recommendation (disclosure
of the Hearing Officer's report) has not been accepted. The nature
and content of the Hearing Officer's report remains something
of a mystery. Its secrecy, as the evidence both in 1993 and in
the current inquiry revealed, continues to be a matter of some
concern and controversy.
5. The inquiry was carried out by Sub-Committee E
(Law and Institutions) under the chairmanship of Lord Hope of
Craighead. The membership of the Sub-Committee is listed in Appendix
1. The witnesses are listed in Appendix 2. The evidence, written
and oral, is printed with the Report. We would like to thank all
those who assisted in the inquiry, especially those who travelled
from Brussels, Mr Pons and Dr Langeheine of the Directorate General
for Competition, and Mr Gilchrist, Dr Johannes and Dr Temple Lang,
former Hearing Officers. Appendix 3 reproduces the mandate of
the Hearing Officer.
1 Case 17/74, Transocean Marine Paint Association
v. Commission:  E.C.R. 1063,  2 C.M.L.R. 459. Back
Historically often identified by the Latin tag audi alteram
Article 6 (1) provides: "In the determination of his civil
rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law
Article 41(2) provides that the right to good administration includes
"the right of every person to be heard, before any individual
measure which would affect him or her adversely is taken". Back
Throughout this report we use the terms "he" and "his",
rather than "he or she" and "his or hers",
for the sake of brevity. It is also historically correct because
the Commission has yet to appoint a woman Hearing Officer. Back
Decision of 12 December 1994 on the terms of reference of hearing
officers in competition procedures before the Commission. Article
2 (2), emphasis added. Back
Dr Temple Lang subsequently resigned from the Commission in July
2000 (QQ 219, 224). Back
1st Report 1993-94 HL Paper 7-I. Back