Convergentie in het mededingingsrecht. De invloed van het EG-recht op materiële toepassing, toegang, bewijs en toetsing bij de Nederlandse mededingingsbestuursrechter, bezien in het licht van effectieve rechtsbescherming

Abstract

Convergence in Competition Law. The influence of EC law on substantive application, access, evidence and review by the Dutch administrative competition court, viewed in the light of effective judicial protection The theme of this dissertation is convergence in competition law. It focuses on the influence of European administrative law on Dutch competition law procedures before the administrative competition courts. The underlying thesis is that substantive statutory convergence in the Dutch Competition Law Act will give rise to procedural convergence, as a result of the general idea that procedural law is shaped by and ancillary to substantive law. There are many ways in which such influence may take form: from spontaneous parallelism, top-down influence by the EC principle of effectiveness, to spill-over effects into national procedural law. Should this general thesis prove correct for Dutch administrative competition court procedures, this dissertation would substantiate the idea of a developing administrative ius commune. However, this general expectation is not necessarily affirmed by the results of this research. To map procedural convergence, the research was narrowed down to three central themes: access to court, evidentiary law and review by the competition courts. Judgments concerning the application of the cartel prohibition, merger control and competition complaints have been analysed with regard to these three themes. In summary, the research shows that substantive statutory convergence does not necessarily lead to procedural convergence with regard to these three themes. The research then adds a further layer in which these results are evaluated in light of the requirements of effective judicial protection. These requirements have been defined by analysing the EC principle of effectiveness and proposing a national principle of effective judicial protection. In summary, this evaluation brings to light that the requirements are not always met. For example, access to court must be sufficient in light of the underlying substantive law. Also effective judicial protection requires that there must be a clear and effective system of judicial protection. Such access is not always given. The allocation of the burden of proof must not make it impossible for the competition authority to enforce competition law effectively, but must also, specifically in proceedings concerning a criminal charge, not be shifted to the undertaking accused. Neither must it be so onerous that access to a substantive hearing before the competition authority becomes impossible for complainants. The standard of proof should, at the very least, be clear. However, many evidentiary rules have not yet been dealt with in judgments by the national courts and clarity is lacking in several respects. Furthermore, judicial review must be sufficiently intensive, again in light of substantive law. It can be questioned however, whether this requirement is always met, doubts particularly concern review of economic evidence and the rights of defence. Lastly, the judges themselves must be active and involved, and should concentrate on the central issue of the dispute. For this the courts need to have (recourse to) sufficient expertise. Again, it can be questioned whether this is the case across the board. Generally therefore, the requirements of effective judicial protection are not satisfied in every case. Concrete recommendations have been put forward to ameliorate this situation.