By the Select Committee appointed to consider European Union documents and other matters relating to the European Union.

ORDERED TO REPORT

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,[1] 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.[2] 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).[3] 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".[4] 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[5] 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".[6] 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[7] 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 Rules[8] ("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 that:

(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.

THE INQUIRY

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.

2   Historically often identified by the Latin tag audi alteram partem. Back

3   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…" Back

4   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

5   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

6   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

7   Dr Temple Lang subsequently resigned from the Commission in July 2000 (QQ 219, 224). Back

8   1st Report 1993-94 HL Paper 7-I. Back