The Hearing Officer plays a fundamental role in the application of EU competition rules. As a member of the staff of the Commission, his mission is clearly defined in Article 1(2) of his terms of reference: “The Hearing Officer shall ensure the effective exercise of procedural rights throughout competition proceedings before the Commission.”
When the Hearing Officer was introduced in 1982, his role was limited to chairing hearings in antitrust cases and reporting to the Competition Commissioner. However, over the years, thanks to the reforms of 1994, 2001 and, in particular, Decision 2011/695/EU of 2011, its powers have been considerably extended. Today, he is a key actor in the protection of procedural fairness and the right to be heard in procedural proceedings.
Will Wouters and Dorothe Dalheimer are currently the two Hearing Officers sitting on the Commission. They begin their work at the latest when a statement of objections is adopted, and their independence is essential to ensure that the procedural rights of all parties are protected.
But are they powerful enough, or should they have wider powers?
According to Will Wouters, the powers and duties of the Hearing Officer fall into four main categories[1] :
Firstly, the Hearing Officer plays a role in direct proceedings by organising and conducting hearings and deciding on the participation of third parties. Second, the Hearing Officer performs an independent review function, allowing parties to raise concerns about possible violations of their procedural rights. Thirdly, the Hearing Officer has decision-making powers, particularly on procedural issues such as time limits, access to the file, and the treatment of confidential information. In addition, they are empowered to make recommendations and submit reports to the Competition Commissioner. Finally, the Hearing Officer “may provide advice to the Competition Commissioner on any matter arising out of any antitrust or merger proceeding, including thus not only procedural but also substantive matters”.
The powers of the Hearing Officer have therefore been strengthened to ensure that he is a figure of trust! But is this enough? Is it time for an improvement on their function?
It can be said that the usefulness of the Hearing Officer has been recognized in practice. Indeed, the powers of these guardians of procedural guarantees have been extended four times since the position was created, each time at the request of businesses and the legal community. Moreover, the Hearing Officer’s decisions are rarely overturned by the EU courts, suggesting a high degree of legal reliability and institutional trust.
However, not everyone agrees on the extent of the Hearing Officer’s role. In the United States, several authors have proposed that the Hearing Officer should have a more substantive function in line with the American administrative law judge. In 2018, Terry Calvani and Jenny Leahy suggested that the Hearing Officer should assess the main points of law and fact, not just the procedural aspects, and include these findings in a final public report[2].
We need to take a step back from these proposals because the US system is very different from that of the EU. Indeed, the EU competition framework already includes several levels of substantive review, by the Commissioner’s office, the Legal Service, and the Chief Economist’s team. Adding a similar task to the Hearing Officer’s function would be irrelevant and risk blurring institutional roles. In fact, substantive scrutiny is often more thorough and diverse in the EU than in any other system.
Furthermore, the assumption that the EU lacks substantive scrutiny simply because the Hearing Officer does not exercise it is incorrect. The tendency of the United States to regard its system as the universal reference does not reflect the complex and well-balanced institutional structure of the EU.
Still, there is always room to improve, and the Hearing Officer’s function could be refined in some areas. Unlike in 2011, there is little interest today in overhauling the role of the Hearing Officer and the discussion focuses more on modest and targeted improvements.
For instance, the role of the Hearing Officer could be strengthened in the field of requests for information. For now, the Hearing Officer’s only have decisional power when it relates to deadlines in the response to requests for information by decision in antitrust cases. However, certain procedural disputes, such as those that arose in the Facebook Ireland v Commission cases in 2020 (T-451/20 R and T-452/20 R), could have been resolved more effectively by the Hearing Officer if he had been granted more extensive decision-making powers. In these cases, the Hearing Officer would reach the same conclusion as the Tribunal, but with less cost and delay. This is an improvement worth considering!
[1] Wils Wouter, “The Role of the Hearing Officer in Competition Proceedings Before the European Commission”, World Competition: Law and Economics Review, Vol. 35, No. 3, (2012): 431-456, https://ssrn.com/abstract=2050478
[2] Terry Calvani, Jenny Leahy, “A larger role for the hearing officer: a modest proposal”, Journal of Antitrust Enforcement, Volume 6, Issue 2 (2018): 214, https://doi.org/10.1093/jaenfo/jnx021
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