Table of Contents I PROCEDURAL CONVERGENCE IN ANTITRUST

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1 Table of Contents Foreword By Massimo Merola, Nicolas Petit and José Rivas Keynote speech By Philip Lowe I PROCEDURAL CONVERGENCE IN ANTITRUST ENFORCEMENT a perspective from the inside Panel session on procedural convergence By Philip Marsden Power to set enforcement priorities By Laurence Idot I. Is the diagnosis right? A. Reality of divergences? B. What is the impact of these divergences on the functioning of the network? II. Are the contemplated remedies suitable? A. Generalisation of a prioritisation system? B. Implementation of a prioritisation system? bruylant 5

2 II PROCEDURAL CONVERGENCE IN ANTITRUST ENFORCEMENT in need of increased coherence and effectiveness? Part I: Towards a higher standard of procedural rights? ISSUES RELATING TO INVESTIGATIONS (legal privilege, dawn raids, requests for information ).. 51 By Denis Waelbroeck I. The legal Professional Privilege ( LPP ) A. Scope of application Definition of lawyer (i) In-house lawyers (ii) Non-EU (EEA) lawyers Notion of client Documents to which LPP applies B. Disclosure of documents between competition authorities C. Disclosure of documents before national courts II. Inspections A. The need for a search warrant B. The prohibition of fishing expeditions III. Requests for information IV. Conclusion Part II: Power to issue positive decisions ; Power to adopt commitment decisions and to impose fines for non-compliance with commitments; Power to adopt remedies, structural or behavioural By Mario Siragusa and A lessandro Bardanzellu I. Introduction II. Power to Issue Positive Decisions A. Art. 10 of Regulation 1/ B. Art. 5 of Regulation 1/ C. Consequences and Future Perspectives III. Power to Adopt Commitment Decisions and to Impose Fines for Non-Compliance with Commitments A. Commitment Decisions B. Fines for Non-Compliance with Commitments bruylant

3 IV. Power to Adopt Remedies, Structural or Behavioural V. Final Remarks Part III: Interim Measures pursuant to Article 8 of Regulation 1/ By Dr. Bernd Meyring I. Introduction II. Requirements III. Procedure Limitation of Protected Interests IV. Candidate cases for interim measures V. Conclusion Part IV: An economic perspective on independent competition enforcement By A lexis Walckiers, Benoît Crutzen and Nicolas Sahuguet I. Introduction II. Whom should authorities gain independence from? III. Arguments in favour of independent competition authorities A. Human right to an impartial tribunal B. Institutions and growth theory C. Institutional design: long term commitment D. Political economy: delegating technical tasks to non-elected bureaucrats IV. Separating the investigation and adjudicative functions V. Conclusion III Modernisation 2.0 outstanding issues Part V: Advocacy powers and the competition screening of national legislation By Salvatore Rebecchini I. Introduction II. Advocacy in ECN during the first ten years of Reg. 1/ bruylant 7

4 III. ECN as a network of advocates? IV. Advocacy toolbox of the Italian NCA V. A more systematic approach to the monitoring of Authority s recommendations VI. Conclusions Part VI: THE FUTURE OF JUDICIAL REVIEW AT BOTH NATIONAL AND EU LEVELS By Santiago Soldevila Fragoso I. The future of the General Court A. The General Court has a problem B. Two options, one solution C. The creation of a specialized jurisdiction: Analysis Justification for its creation Direct and positive impact for the General Court The creation of a new specialized jurisdiction permits a more efficient and rational way in which to deal with IPR cases Impact for the Institution D. The increase of the number of judges: Analysis of the proposal made by the Court of Justice The integration of 7 judges into the GC, coming from the CST, is controversial for the following reasons The appointment of 21 new extra judges creates problems The inconsistency of the proposed system The internal organization of the GC, specially the plenary meeting, becomes extremely complicated E. Why does the Court of Justice reject the creation of the specialized jurisdiction? F. The Court of Justice judgment of 19 September 2013, Strack, C-579/12 and its influence G. Is the Review Procedure a kind of writ of certiorari and a potential solution for this problem? H. The General Court as a hidden specialized jurisdiction for competition law cases? II. Judicial review at national level: some current problems A. Higher protection of fundamental rights at Spanish level B. The real absence of hearings at the Spanish level bruylant

5 Part VII: Cooperation with national courts, post Directive on Antitrust Damages The future of judicial review on both national and EU level Cooperation between National Competition Authorities and National Courts and scope of judicial review on evidence-related issues By Gabriella Muscolo I. Evidence related issues in the enforcement of antitrust rules II. Cooperation between public and private enforcers on the evidential grounds: from Article 15 of Regulation 1/2003 to Articles 5ff of the enforcement directive III. The scope of judicial review on evaluation of evidence IV Concluding Remarks Ten Years of Regulation 1/2003 : effectiveness, diversity, convergence and beyond By Damien Gerard bruylant 9