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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 cases;- the regulatory question about using a 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 RulesI. 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 CasesA. Analysis of the Cases B. Subsequent DevelopmentsC. 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