THE COMMISSION'S STARTING POINT

28. The Office of Fair Trading (OFT) said that there had not been any pressure from Member States for the current review of the role of the Hearing Officer. There had, however, been some pressure from legal practitioners, partly as a result of the significant increase in the workload and the volume of cases that the Commission was handling under the Merger Control Regulation (Q 31). Mr Pons, for the Commission, acknowledged that the number of important cases was growing, especially in the merger field. Reform of the procedural regime for cartel cases (the Modernisation exercise) should bring more ex officio procedures. Against this background and given the increasing number of cases, Commissioner Monti had decided to appoint two Hearing Officers (with one at Grade A2) and also to consider the possible improvement of the role (Q 136). Dr Temple Lang offered two reasons for the Commissioner's decision. First, it had been intended for a number of years to upgrade the Hearing Officer's position to director (A2) level. That was done for the first time when Dr Temple Lang was appointed. Second, Dr Temple Lang had said that he would not accept the post unless it was strengthened in at least one specific way, ie by the disclosure of the Hearing Officer's final report (this proposal is discussed in paragraphs 34-41 below) (QQ 216, 224).

EXPERIENCE TO DATE

29. The Confederation of British Industry (CBI) had long supported the position of Hearing Officer, viewing the post as a means of securing greater fairness and due process in Commission competition proceedings (p 13). The introduction of the Hearing Officer had led to improvements in the Commission's procedures. As regards the conduct of hearings, practitioners were satisfied that the Hearing Officer had ensured that parties had been able to express their views orally, though they considered that there were still shortcomings in the procedure (Q 73). Mr Aitman, for the Joint Bar/Law Society Working Party, described the Hearing Officer as exercising a "relatively light touch" over the proceedings. Mr Woodgate, for the Competition Law Association, said that the Hearing Officers had not always ensured that the extent to which issues were in controversy or agreed was identified. He also questioned whether, when compared with the methodology of the Court of First Instance, the Hearing Officer undertook sufficient preparatory work in advance of the oral hearing (QQ 75, 110). In the view of the Bar European Group (BEG), the conduct of hearings had been less than satisfactory (Q 77). Practitioners expressed doubts as to the value of oral hearings. It was difficult to reconcile evidence and almost impossible to put questions to the Commission. There was, however, general recognition that oral hearings provided an opportunity to bring points to the attention of representatives of the Member States (QQ 75, 77).

30. As regards the Hearing Officer's other functions, practitioners acknowledged that the Hearing Officer had performed an important role in determining access to the file, though there were still, from time to time, problems as the recent Cement case[25] demonstrated (Q 201). In Mr Green's experience (BEG) resort to the Hearing Officer had never been successful in obtaining wider access to the file than the Commission had otherwise been willing to give (Q 76-7). Dealing with the question of confidentiality of documents, Mr Aitman, for the Joint Bar/Law Society Working Party, reported some success and help in requiring summaries of confidential documents to be created. But there was a perceived difficulty in approaching the Hearing Officer on such issues. There was uncertainty about how much the Hearing Officer could and would help and how independent he was from the Commission (QQ 77, 93).

STRENGTHENING THE HEARING OFFICER'S ROLE

31. The CBI believed that the role of the Hearing Officer was an important one and that it needed to be strengthened (Q 76). Other witnesses agreed. In Mr Green's view (BEG), the Hearing Officer was there to try to soften the conflict that existed because the Commission was the prosecutor and also the decision-maker. "You are meant to have someone who can take a bird's eye view and exercise some constraint over the Commission, pressurise them into producing more documentation and so on. Unless that Hearing Officer really has teeth then the role is largely going to be cosmetic". It was not that the Hearing Officers were "not trying their very best". They should have the power to compel the Commission to produce documents and to produce evidence which could be tested at an oral hearing (QQ 77, 91-2). The CBI believed that the Commission had little to fear from a strengthened, independent Hearing Officer. If the Commission took a correct and lawful decision in a particular case, the Hearing Officer would endorse the action of the Commission. Equally, an effective Hearing Officer with enhanced powers would be in a better position to prevent the Commission making unsound decisions liable to challenge before the CFI or European Court of Justice. Either way, by enhancing the role of the Hearing Officer, the Commission would benefit by sending a clear signal that it was committed to due and fair processes in the public interest (p 15).

32. Merger cases raised particular concerns, not least because where a Phase II investigation was launched there was, in the CBI's view, a perception that resort to the courts was less likely because of the time and pressures involved. The CBI thought that there was a particular case for strengthening the role of the Hearing Officer in such cases. Currently there was very little control over what the Commission did and as the parties did not have time to go to the Court, the Commission's decision was effectively final and not subject to control. A mechanism had to be put in place to provide a check and balance to that. Someone should be able to look at the merits of the Commission's action (Q 76, 116). Dr Temple Lang distinguished mergers from other competition cases. The companies wished to go through with their merger and therefore were under great pressure and in a weak negotiating position if requests were made by the Commission's Merger Task Force case team which the companies regarded as unreasonable but which they felt they had little choice but to accept because of the time involved in any appeal to the Court of First Instance (Q 267).

33. OFT doubted whether the interests of the European citizen in having an effective competition policy would be best served if the Hearing Officer's role became too great. OFT saw the role of the Hearing Officer as largely, or essentially, a procedural one rather than a substantive one. If the Hearing Officer were to develop into a sort of administrative judge with jurisdiction to consider the substance of cases, he would be another force within Brussels. The quality of decisions might, but would not necessarily, be better. However, the procedure might take longer with the result that the Commission would deal with fewer cases. There was a question of balance. Any significant strengthening of the Hearing Officer's role could affect the effectiveness of the competition regime. The parties might have a greater sense of having rights, but the OFT had considerable doubts whether the enforcement machinery would deliver the benefits of competition to the citizens of Europe (QQ 2, 32-7).

DISCLOSURE OF HEARING OFFICER'S REPORT

34. The Hearing Officer's report (made under Article 8 of the 1994 Decision - as described in paragraph 20 above) is typically four or five pages long. It briefly summarises the proceedings and includes the Hearing Officer's opinion on both the procedural and substantive aspects of the case. Witnesses pointed out its importance. As Mr Gilchrist, a former Hearing Officer, explained the oral hearing and the Hearing Officer's report might cause DG Competition to change its position or approach, though one could not say whether the case team would have come to that conclusion independently. He knew of no case where the Commission had proceeded in the face of a report saying that the Commission was misguided or wrong (QQ 247-8). Mr Pons, for the Commission, said that the importance of the Hearing Officer's report should not be underestimated. DG Competition took the report seriously. It triggered a reassessment of the case by the Commission, sometimes producing significant changes in its position. Arguments criticised might be reinforced or dropped. That said, the importance of the report should not be overestimated. The opinion of the Commission's Legal Service (also not disclosed) was also very important. There could in addition be other developments such as negotiations between the parties and the Commission resulting in a different final decision (QQ 135, 172, 180).

35. The CBI said that the Hearing Officer's report should be made available to the parties in order to provide them with a complete record of the proceedings, and to enable them to determine whether the correct procedures had been followed. Disclosure might also be helpful to parties who were doubtful of the value of oral hearings by showing them what difference an oral hearing might make. In addition, publication of a non-confidential version of the report in the Official Journal and on DG Competition's website would make more transparent the Hearing Officer's role in helping to ensure the fairness of the Commission's procedures. The CBI could not see what argument there was for not releasing the report to the parties. But the step of releasing the report, though itself an important one, had to be taken along with giving the Hearing Officer greater independence. The most essential reform was that he should no longer be simply part of DG Competition (p 15, QQ 95-6, 98-9).

36. Practitioners supported the suggestion that the Hearing Officer's report should be made available to the parties and a version of the report later published (QQ 94-5). Mr Aitman, for the Joint Working Party, thought that it would be very helpful in terms of building the confidence of parties in justice being seen to be done. It would also assist in the development of the conduct of hearings: it would produce greater clarity as to what the parties should be doing or were able to do at the hearing (Q 94). The OFT had not seen a Hearing Officer's report - though Mr Gilchrist, a former Hearing Officer, believed that they would be entitled to receive a copy if they asked (Q 230) - but thought that on balance there would be merit in the report being provided to the parties as well as to the Member States (who attend the Advisory Committee) and also in publishing it. They were concerned, however, about the implications any change to procedures might have on the very tight timetables in the Merger Control Regulation (QQ 32, 43). Mr Green (BEG) did not believe that making the report available to the parties in merger cases would substantially delay the procedure. Knowledge of the content of the report, including any criticisms of the Commission, would improve the process (Q 95).

37. Dr Temple Lang believed that the Hearing Officer's final (ie Article 10 - described in paragraph 22 above) report[26] on the draft decision of the Commission ought to be given to the parties. Without it they could not know what it said, whether the report was accepted by the Commission or was ignored or was overruled, or even whether the parties agreed with what the Hearing Officer said. Dr Temple Lang said: "unless the report is given to the parties, the Hearing Officer is a safeguard for the Commission but only incidentally a safeguard for the parties". If the Commission chose not to accept a final report identifying procedural or substantive defects, the rights of the parties received no further protection precisely when needed. The protection that the Hearing Officer was intended to provide was ineffective. If the final report were given to the parties in all cases, DG Commission officials would always try to ensure that the report did not contain any criticisms either of their procedure or of their evidence. Dr Temple Lang believed that this would be enough to give the Hearing Officer very considerable influence over the entire conduct of the case (Q 219). Dr Johannes, a former Hearing Officer, agreed that the report should be disclosed. If the parties, the members of the Advisory Committee (ie the Member States) and the Court of First Instance had the report, it would strengthen the position of the Hearing Officer and the rights of defence (Q 263).

38. For the Commission, Mr Pons said that the idea of showing the Hearing Officer's report to the parties was something which the Commission would have to consider further in the context of the current review. But he saw some problems with the proposal, particularly having regard to the role of the Hearing Officer and his place in the institutional framework. The Hearing Officer was an official of the Commission, not the Court. His role was not to provide some kind of quasi-judicial recourse for the parties against the Commission but to facilitate the proceedings and to ensure that the parties had a fair procedure. The Hearing Officer was not, at least at the present time, an independent figure outside the Commission. He was part of the Commission and his report, like the advice of the Legal Service, was part of the Commission's decision making process. As regards the position in merger cases, Mr Pons doubted whether disclosure of the report would be helpful to the parties in obtaining a positive decision from the Commission. Introducing the possibility of the procedure being stopped or delayed would be inconsistent with the business community's desire for fast and clear procedure (Q 185, 187, 193). Mr Gilchrist, a former Hearing Officer, also doubted whether disclosure would benefit the parties. He accepted, however, that there was need for reform in the way remedies were negotiated in merger cases. The Hearing Officer could be given a new and more active role in such negotiations, which could be introduced as a matter of internal procedure and would not need legislative amendments (QQ 230, 232, 233).

39. There was some speculation as to what effect disclosure and ultimate publication of the report might have on the style and content of Hearing Officers' reports. Mr Green (BEG) thought that if reports were made public they might be longer. Importantly, their quality might be improved if they were to become subject to scrutiny (QQ 94, 97). Mr Pons, for the Commission, said: "I am not sure [the Hearing Officer] would write one page of assessment, maybe he would be much more cautious" (Q 184). Dr Temple Lang doubted whether disclosure would greatly alter the way of writing the report. The final report, in the vast majority of cases, would be a formal report saying that the Hearing Officer had found no defects in the procedure and had no criticisms to make of the substance of the decision. Where criticisms were made, the Hearing Officer would, as he currently did, say what he was criticising and give reasons (Q 222).

40. Finally, as regards the status of reports in appeals to the Court of First Instance, the current position is that the Court does not normally see the Hearing Officer's report. It could ask to see the report. The Commission said that they would make it available if requested but the CFI had been very reticent to look at the report (QQ 183, 193). The OFT believed that if the Hearing Officer's report were to be made available to the parties, there might be advantages in it being available to the Court in every case. What impact it would have would, in OFT's view, depend on the circumstances. Disclosure of the report to the Court might be extremely important where a significant part of the appeal concerned the Commission's procedure and how well the hearing had been conducted (Q 49).

41. Sir Christopher Bellamy QC, a former judge in the Court of First Instance, knew of no case where the Court had demanded or asked to see the report. In general the Court had regarded Hearing Officer reports as purely internal documents, as advisory documents for the use of the Commission, which were not in general regarded as relevant to the proceedings before the Court of First Instance. When an appeal reached the Court the parties were arguing that the Commission had erred on the facts, procedurally or in law. The Court undertook its own investigation and appraisal of those arguments. What the Hearing Officer may or may not have opined at a certain stage in the procedure was irrelevant. It was ultimately for the Court to decide whether the Commission had proved its case or not. It was hard to see to what issues the Hearing Officer's report would go, unless there was some allegation of a procedural failure to follow the Hearing Officer's terms of reference (QQ 198, 200, 203).

INDEPENDENCE

42. The recitals to the 1994 Decision refer to the organisation and conduct of the administrative procedures designed to protect the right to be heard being entrusted to "an independent person experienced in competition matters". In practice Hearing Officers have been appointed from the ranks of DG Competition and a number of them, after serving as Hearing Officer, have gone on to retirement. There was no suggestion on the evidence that Hearing Officers had lacked independence or exhibited partiality. Neither Mr Gilchrist nor Dr Johannes, former Hearing Officers, felt that their independence had been threatened (QQ 252-3).

43. The paramount concern of the CBI was to improve the independence of the Hearing Officer. The post of Hearing Officer should be taken outside of DG Competition and a separate, independent office should be established, reporting directly to the President of the Commission, and not to the Commissioner for Competition. The CBI accepted that anyone appointed should have sufficient experience and expertise. But that did not necessarily mean that the Hearing Officer had to remain within DG Competition or be appointed from its ranks. The CBI suggested that a highly qualified official from a different EU institution - for instance, from the Court of First Instance or European Court of Justice - might be appointed to the post, given the quasi-judicial nature of the role. He should have a guaranteed, non-renewable term of office. Further, retirement should be the preordained course for any Hearing Officer at the end of his term (pp 13-14, QQ 104-5, 109). Neither Dr Johannes or Dr Temple Lang thought that it was essential that the Hearing Officer come from DG Competition or from the Commission (QQ 259, 260). But Mr Gilchrist thought that an intimate knowledge of the workings of the Directorate "and where the skeletons are buried" was needed to do the job "as it stands" (Q 262).

44. Dr Langeheine, for the Commission, said that a Hearing Officer appointed from outside would not be familiar with the internal workings of the Competition Directorate General and working procedures might become more rigid. There was also a risk that it might introduce politics into the process of appointment (Q 151). As regards the Hearing Officer's appointment and conditions of service, Mr Pons explained that the Hearing Officer was a member of the Commission's staff and the normal rules of the Staff Regulation applied. It was the same procedure as for any other A2 grade post (appointed by the full Commission) or another A3 head of unit. In practice appointments were made from inside the Commission civil service. The Commission had the power to appoint at A2 grade from outside the European civil service but such appointments were rare. What was important, in Mr Pons' view, was to appoint someone with experience in competition issues and who would be able to be independent and to resist pressure from DG Competition. That militated against appointing too young an official and was why generally the Commission had chosen people for whom it was the last job before retirement (QQ 135, 140, 143, 147, 161). Dr Johannes gave an example of the Commission resisting the appointment of an able, but young, Dutch lawyer (Q 260).

45. As regards the period of appointment and security of tenure, Dr Langeheine said that the Hearing Officer was in the same position as any other Community civil servant of the same grade. There was no minimum period of appointment or special protection against dismissal, though that was a suggestion that the Commission might consider. But Dr Langeheine said: "In practice, of course, it will be very difficult in any event for the Commission to dismiss the Hearing Officer because he is a highly visible figure and any removal would have to be based on very solid grounds and certainly not related to any decisions he has made or comments he has made in competition proceedings" (QQ 144, 146). Mr Gilchrist pointed to the irony of appointment at grade A2. A2s did not have the same security as A3s, because under the Staff Regulations they could be moved more easily. He thought that there was a case for making the position of Hearing Officer more secure, perhaps providing for his removal from office only by Council or Court of Justice decision (QQ 256-7).

46. Currently the Hearing Officer has his office in the same building as DG Competition. The CBI contended that, to reinforce his independence, the Hearing Officer should be situated in a separate building to that of DG Competition (p 14). Dr Langeheine, for the Commission, reminded the Committee that in its 1993 Report it had recommended that the Hearing Officer remain within the Competition Directorate.[27] There would be practical difficulties if the Hearing Officer were located elsewhere. It would, for example, be difficult for somebody who was based in Luxembourg to decide on questions of access to the file, where there might be 50, 100 or even more files relevant to the case (Q 162-3).

47. Mr Green (BEG) thought that one of the most important safeguards would be statutory independence. The role and the independence of the Hearing Officer should be enshrined in a regulation. That would then overcome the problem that there was the same paymaster. (Q 107). Dr Temple Lang thought that it would be essential that his independence should be strengthened as far as it could be by formal provisions in his statute to ensure that he was not inhibited in saying whatever he thought he ought to say, rightly or wrongly (Q 258). The CBI argued that a Council regulation was needed and that it should deal comprehensively with the rights and responsibilities of the Hearing Officer. Implementation of the Modernisation[28] proposals provided the Commission with a useful opportunity to do this (p 14, Q 124). Mr Gilchrist believed that some greater formalisation of the Hearing Officer's independence would be helpful, particularly as regards the perception outside the Commission. In practice what was important was the personality of the individual appointed (Q 256). Mr Pons, for the Commission, acknowledged that the question of independence was a very important one but he was not so sure that a different statute was the answer. "It is really a question of the person you choose" (Q 135). Sir Christopher Bellamy took a similar view: "At the end of the day I think it would largely depend on the capabilities and energy of the man in question. I would have thought within the terms of the existing terms of reference a competent and energetic Hearing Officer could see that many of these problems were ironed out". Sir Christopher could, however, envisage a more formally stated role for the Hearing Officer, in which he could "decide" on questions like access to the file in such a way that there was no doubt that there was a decision which would be appealable, thus enabling better interlocutory control by the Court of First Instance (Q 211).

RESOURCES

48. The CBI said that it was a common complaint that the Hearing Officer lacked the resources to be able to carry out his functions properly. This must be remedied (p 14). Mr Pons, for the Commission, explained that currently the two Hearing Officers had one assistant and three secretaries. The assistant was in charge of the organisation of oral hearings, which was a very time consuming exercise (QQ 135, 164). Both Mr Gilchrist and Dr Johannes pointed out that the workload of the Hearing Officer fluctuated, in response to the level of activity of DG Competition. The present level of resources was generally adequate (Q 235-6). Practitioners did not believe that the effectiveness of the Hearing Officer to date had been affected by any lack of resources. But Mr Aitman (Joint Working Party) said: "if we are looking for an enlarged role there would have to be an enlarged resource" (Q 111). Mr Gilchrist agreed (Q 237).

POWER TO HALT PROCEEDINGS

49. The CBI proposed that the Hearing Officer should be empowered (in clear-cut cases) to halt proceedings. This would be an effective way of ensuring that Commission decisions are subject to independent scrutiny and review, and would be especially important in merger cases, where there is no effective review of a Commission decision (due to time constraints and commercial pressures). Mr Ogilvie Smals (CBI) said that the Hearing Officer should have power to intervene where the Commission's procedure was inadequate or unfair rather than simply write a report after the event. He should be able to halt the proceedings, requiring the Commission to go back and start again. His decision would not be appealable, but would operate internally within the Commission along the lines of powers of the Commission's Legal Service to check proceedings (p 14, QQ 113-5).

REVIEWABLE ACTS

50. The CBI also suggested that in order to provide proper scrutiny of a Hearing Officer's actions, any decision taken by him should be an act reviewable by the Court of First Instance. Further, the Hearing Officer should be required to give reasons for his decisions, including those relating to the review of documents in the Commission's internal file (pp 14-15). The Joint Bar/Law Society Working Party saw some merit in this suggestion, particularly as regards procedural issues such as the disclosure of documents. It would give the Hearing Officer real teeth and result in much more transparent and meaningful decisions being taken. It could also save time by enabling allegations of procedural unfairness to be dealt with at an early stage. Mr Aitman, for the Joint Working Party, thought it would be helpful if certain decisions could be more readily challenged before the Court. The parties concerned should not have to wait to appeal the final decision for some breach of procedure that could have been addressed at some earlier point (QQ 93, 130-1). Mr Green (BEG) commented that such a change would alter Court of Justice case-law and might require Treaty amendment (Q 132).

51. The OFT said that there were very tight timetables in the Merger Control Regulation, and expressed concern that any ability to appeal during the process might cause significant delay (Q 43). Mr Aitman (Joint Working Party) thought that it would be very attractive to have the Hearing Officer looking at certain aspects of the negotiations between the parties and the Commission in merger cases. The timing in such cases worked in such a way that, faced with a negative decision on a fixed date, the parties became more and more cornered and were compelled to make concessions to the Commission. But he had difficulty in seeing how it would work against the time frame set by the Merger Control Regulation (Q 124). The Competition Law Association also expressed concern about the time factor were the involvement of the Hearing Officer to give rise to appealable decisions in merger cases (Q 126). The CBI accepted that there were difficulties. But one possibility was for the negotiation process to be made more structured and for the Hearing Officer to chair meetings between the parties and the Commission and act as mediator (QQ 125-6). Mr Gilchrist, a former Hearing Officer, also supported the participation of the Hearing Officer in the negotiation of remedies in merger cases (Q 265).

OTHER SUGGESTIONS

52. There were other areas where the Hearing Officer might have a useful role in helping to resolve disagreement between parties and the Commission. The OFT said that one of the issues arising in relation to merger cases, particularly with the increased pressure on the Commission, was the number of occasions in which the Merger Task Force said a notification was not "complete".[29] Some parties believed the Task Force did this in order to enable it to get more time when there was a large volume of work. The Hearing Officer could be asked to advise on whether the notification was complete. Another area was "Article 11 letters" (ie letters from the Commission to parties under Regulation 17 requesting information). The party or parties might consider the timetable unreasonable. The OFT thought that the Hearing Officer could adjudicate and give a decision on whether it was reasonable or not (QQ 32, 69). Mr Gilchrist, a former Hearing Officer, proposed similar changes (Q 236). The initial reaction of Mr Pons, for the Commission, was that both these proposals raised practical difficulties. The Commission sent out between 12,000 and 14,000 Article 11 letters a year. The Hearing Officer could not look at all of these letters, though it might, Mr Pons accepted, be possible to identify specific cases where he should do so. As regards the question of completeness of notifications in merger cases, again it would be a huge task for the Hearing Officer to re-examine merger notifications. The Commission would, however, look more carefully at these suggestions which Mr Pons acknowledged were linked to the important role of the Hearing Officer in ensuring a fair procedure (Q 195).

53. OFT also thought that the terms of reference and the role of the Hearing Officer should be clearer and more transparent in general terms. The 1994 Decision gave a certain amount of information but it would be helpful if it was clearer what he actually did and did not do (Q 69). The CBI proposed that to assist transparency and enhance his position generally the Hearing Officer should produce an annual report concerning the conduct of his role, to be tabled at the European Parliament for review and debate (p 14).

54. Dr Temple Lang acknowledged that a number of suggestions made for giving the Hearing Officer further responsibilities might well be useful. But they would not deal with the question of the effectiveness of the Hearing Officer. Dr Temple Lang said: "I would not like, if I may say so, the Committee to be distracted by the idea that it would be an adequate solution to give the Hearing Officer more to do". What was, in his view, crucial was that the parties should receive a copy of the Hearing Officer's final report at the same time as they received the Commission's decision in the case (QQ 221, 267). Dr Johannes believed that it would strengthen the role further if the Hearing Officer had the right to have his final report circulated to all members of the Commission along with the draft decision[30] (Q 227).

ARTICLE 6 ECHR

55. The perceived difficulty with the Commission's procedures, both under Articles 81 and 82 and the Merger Control Regulation, arises because the Commission is at the same time both the prosecutor and the decision-maker. BEG thought that in such a situation it was not possible for the Commission to be an independent court or tribunal for the purposes of Article 6 ECHR (Q 122). Dr Langeheine, for the Commission, said that the Community's competition procedures were not in contravention of the Convention. It was fully compatible with Article 6 for a decision to be taken by an administrative body if there was full review of the decision by an independent court. That was effected by the Court of First Instance, which had jurisdiction over both the facts of the case and points of law. It could fully review the amount of any fine imposed by the Commission. Dr Langeheine recalled that one of the reasons why the Court of First Instance was created was to enable a thorough review of competition decisions by the Commission to be undertaken (Q 186).

56. The DTI also believed that the Community's procedures were compatible with the Convention. Where fines were imposed the Court had "unlimited jurisdiction" (pleine juridiction). There had been some debate as to the meaning of unlimited jurisdiction but the Court of First Instance had not been shy to undertake its own review of the facts which were before the Commission (Q 57). Sir Christopher Bellamy referred to the judgment of the Court of First Instance in Case T-156/94 Aristrain (an ECSC case).[31] That case held that, because of the nature of the review by the Court when exercising unlimited jurisdiction, the Community's system was Article 6 ECHR compliant (Q 208). The question remained as to whether the jurisdiction of the Court of First Instance under Article 230 EC, ie in cases not involving fines, was sufficiently close to a retrial to meet the requirements of Article 6 ECHR. The DTI believed that the Community's procedures were still compatible with the Convention. The grounds for appeal set out in Article 230 were sufficiently wide to allow for review of the facts of the case as well as the procedure (Q 57). Dr Temple Lang said most people would say that in practice the Court of First Instance essentially retried everything that it considered should be retried. But there was a formal question whether the limits on the Court's jurisdiction (the four grounds specified in Article 230) meant that, although in practice it amounted to a retrial, it was not sufficient to comply with Article 6. In Dr Temple Lang's view, nothing that could be done with the Hearing Officer would solve any problem that might exist in relation to Article 6 ECHR, though it would undoubtedly make the overall system better (Q 264).

26   Dr Temple Lang envisaged that at least a formal final report should be written in all cases, and that it would be the final report and not the interim (Article 8) report which should be given to the parties in all cases. The interim report, on occasions at least, became overtaken by changes in the thinking of the Commission (Q 229). Back

27   1st Report 1993-94, at para 111: "the Hearing Officers should remain within DGIV, since they should be easily accessible for informal consultation by rapporteurs". Back

28   The subject of our 1993 Report, referred to at footnote 8 above. Back

29   The Merger Control Regulation (Regulation 4064/89, as amended) provides that Phase I (the one month period in which merger proposals are examined and at the end of which the Commission must take a decision to clear or to proceed to the more detailed Phase II) begins "on the day following that of the receipt of a notification or, if the information to be supplied with the notification is incomplete, on the day following that of the receipt of the complete notification" (Article 10 (1)).  Back

30   Currently this decision rests with the Competition Commissioner (Article 10 of the 1994 Decision, described at paragraph 22 above). Back

31   Case T-156/94 Siderurica Aristrain Madrid, SL v. Commission [1999] ECR II-645. Judgment of 11 March 1999. Back