The issuance by the European Commission of a new set of best practices in antitrust proceedings, as well as its attempt to reinforce the role of the hearing officer, have sparked up the debate about the European antitrust procedure.

Even though criticism of EU antitrust procedure has always been present in EU competition law discussions, it is a subject that remains key from a due process standpoint because of the commission’s need to use extensive investigative powers in antitrust cases paired with the heavy sanctions imposed on infringers.

Unlike U.S. practice, EU competition law enforcement occurs in an administrative, not criminal, system. In this system, the Commission combines the roles of prosecutor, judge, and jury. Under current procedures, companies accused of violating EU competition law cannot cross-examine witnesses, even when they might have been involved in incriminating them, nor can they have the matter heard by a third party (other than the commission’s case team)....