Conceptualising Procedural Fairness in EU Competition Law

Haukur Logi Karlsson is Postdoctoral Fellow at the Law Department of Reykjavik University.

• 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