a tripartite report - Unctad

PREFACE
be set at a percentage of the global turnover of
Republic of Tanzania, introducing a 0–10 per cent
interval.
What is in any case very important for antitrust
issuing of the appeal judgment before paying the
im
orders) concludes that a decision is prima facie
wrong, he may suspend the obligation to pay the
(information on the 3 countries).
Fines should not become a source of funds for the
Authority like in Zambia where the Authority is al-
paid, even though the law was never made operational.
This was very wise on the part of the Author-
fore
should be abolished, as the individual Report
on Zambia suggests, since the Authority would lack
neutrality in deciding on cases. Also appeal judges,
knowing that if they block a case the Authority
would lose an important part of its funding, may
be tempted not to be too rigorous in their review. If
proper funding of the Authority is not guaranteed
by some other source, there is a risk that the Authority
would be forced in the years to come to take
advantage of the option to retain a percentage of
4. Judicial review
All decisions by competition authorities are appealable
in front of a judge and of course this is
so also in the three countries under review. This
means that the problem of the Authority being an
enforcer and an adjudicator at the same time is
less relevant as it may appear, since a judge is in
any case involved once the Authorities’ decisions
are appealed.
whether the decision by the competition authority
is enforceable even if appealed. The second
is how extensive is the review of the judge (the
standard over which the judge decides). The third
is whether the judge is an expert about antitrust
enforcement and how able is he to appreciate the
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quality of the Authority’s decisions. The fourth is
the timing of judicial review.
In the European Union decision of competition
authorities are fully enforceable even if appealed,
unless they are suspended by the judge for serious
shortcomings in the Authority’s reasoning.
This enforceability of the Authorities decisions
even if appealed, is meant to speed up the process
of judicial review by providing an incentive to
act to the judge. This immediate enforceability of
the Authority’s decisions makes the judge aware
that in order to block a decision there is a need
for a ruling.
The distinction between full (where judicial review
leads to a full revision of the case) and administrative
jurisdiction (where judicial review controls
the logic of the Authority’s decision and whether
the Authority’s decision was taken according to the
powers provided by the law) is much smaller than
one may think. The only real difference is that with
full jurisdiction the appealing judge is able to consider
different facts than those considered by the
Authority at the time of the decision. In fact, even
an administrative judge would be able to assess
all substantive aspects of a case, from the relevant
market, to the restrictiveness of the practice, to the
evaluation of the future course of events as originating
from the prohibited practice. The expertise
of the judge is very important, since antitrust rules
are written in very general terms and what they
actually prohibit needs to be interpreted. It does
not originate by a simple reading of the legal provisions.
For example, the move to an effect based
approach in antitrust, which took place in the European
Union in the last decade, was not evident
by the way the substantive legal provisions are
written. As a result, besides providing judges with
that antitrust cases are always heard by the same
court or by the same section of a larger court, so
that judges could understand the philosophy behind
the approach adopted by the Authority and
be coherent in the future, once they approve it.
-
necessary to make sure that the full decision making
(which includes the timing of the appeal) be
quite short, otherwise decisions would really affect
current developments.
COMPARATIVE ASSESMENT