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Conceptualising Procedural Fairness in EU Competition Law

Conceptualising Procedural Fairness in EU Competition Law

Author: Haukur Logi Karlsson
Publisher: Hart Publishing
ISBN: 9781509935413

Published In: September 2020
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Paperback Edition ISBN: 9781509944583

List Price: HKD 1,300.00

HKD 1,261.00 Save HKD 39.00 (3%)

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Contents

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What constitutes a fair procedure when it comes to EU competition law?

This innovative book seeks to understand the philosophical considerations at the core of conflicting procedural fairness arguments in EU competition law practice. The author argues for a conceptualisation of procedural fairness as a distributional issue that can be solved by a practical fairness theory and a comprehensive methodology. To illustrate the usefulness of the conceptualisation, three procedural fairness problems from recent EU competition law practice are analysed:

the KME-Chalkor cases
the Groupe Gascogne case
the regulatory question about using collective redress mechanism for private enforcement of EU competition law

This unique approach provides a robust philosophical and methodological foundation for arguing about a wide range of procedural fairness dilemmas. The book is a must-read for academics and practitioners seeking an imaginative perspective on the philosophical foundations of arguments about procedural fairness in EU competition law and beyond.

1. The Problem of Procedural Fairness

I. Procedural Fairness in EU Competition Law

A. The KME/Chalkor Argument

B. The Elements of KME/Chalkor Dilemma

C. The KME/Chalkor Dilemma in Context

II. Towards a Conceptualisation of Procedural Fairness

2. The Essence of a Procedure

I. Differentiating Procedural Law and Substantive Law

II. Procedures as a Social Institution

III. The Institutional Elements of an Adjudicative Procedure

A. Instrumental Structure

i. Constitutive Rules

ii. Culture

iii. Sanctions

B. Normative Function

i. The Deontological View

ii. The Consequential View

iii. The Functional Essence of a Procedure

IV. Towards a Conceptualisation of a Fair Adjudicative Procedure

3. The Structure and Function of EU Competition Procedures

I. The Normative Purpose of EU Competition Law

II. Stakeholders and Stakes in Competition Proceedings

A. The Main Stakeholders

B. The Main Stakes

III. The Structure of the EU's Competition Law Procedure

IV. Instrumental Structure and Normative Function

A. The Constitutive Rules of EU Competition Law Procedure

B. The Institutional Culture of DG Competition

C. The Procedure before the CJEU

D. Institutional Sanctions

V. Arguments about Procedural Fairness in EU Competition Law

4. Ethics for Procedural Architects

I. Ethics and Legal Theory

II. Ethics beyond Legal Theory

A. The Social Contract Narrative

B. Hobbesian Ethics and Game Theory

C. Contractarian Ethics and Democratic Institutions

III. Ethics as the Dark Matter of the Law

5. The Model of Fair Rules

I. The Role of the Rule Architect

II. Rulemaking as a Decision Problem

III. The Elements of the Model of Fair Rules

A. The Policy Objective of a Rule

B. Unifi cation of Moral and Efficiency Claims

C. Interpersonal Comparison of Stakeholder Claims

D. Registration of Preferences into Pay-off Matrices

E. Identifying Fair and Efficient Rules

IV. The Utility of a Model for Identifying Fair Rules

6. Analysis of Three Fairness Dilemmas

I. The KME/Chalkor Cases

A. Analysis of the Cases

B. Subsequent Developments

C. The Court's Approach to the Fairness Issue

II. The Groupe Gascogne Cases

A. Analysis of the Cases

B. The Court's Approach to the Fairness Issue

III. Collective Redress for Private Enforcement of Competition Law

A. Analysis of the Legislative Dilemma

B. The Commission's Approach to the Fairness Issue

IV. Symptoms of an Underdeveloped Theory of Procedural Fairness

7. An Argument for a Data-based Democracy

I. Conceptualisation of Procedural Fairness in EU Competition Law

II. Solving Fairness Issues in EU Competition Procedure

A. Applying the Model of Fair Rules

i. Step 1: Identifying the Primary Policy Objective

ii. Step 2: Preference Function

iii. Step 3: Preference Index

iv. Step 4: Preference Matrices

v. Step 5: Identifying Fairness

B. Assessing the Utility of the Model

III. Technocracy and the Making of Laws

IV. Data-based Democracy for Regulating EU Competition Procedure

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