Die gerichtliche Kontrolle behördlicher Tatsachenermittlung im europäischen Wettbewerbsrecht zwischen Untersuchungsmaxime und Effektivitätsgebot

One of the basic pillars of German administrative procedural law is the inquisitorial principle (Untersuchungsgrundsatz), which obliges administrative courts to determine the relevant facts of a case ex officio. The inquisitorial principle determines even the procedure in general courts of law in competition law cases when a court has to decide whether a challenged administrative measure of the competent competition authority is in conformity with the law. Disregarding this, nowadays most administrative measures of the Federal Cartel Office (Bundeskartellamt) are based on European competition law (Article 101-102 TFEU), which is indirectly enforced by national authorities in the decentralised system of competition law enforcement established under Regulation 1/2003/EC. In contrast to the German administrative procedural law, the procedure in the European courts (European Court of Justice and, in first instance, General Court) is more or less based on the (adversarial) principle that evidence of the facts of the case has to be provided by the competing parties. This leads to fundamentally different modes of administrative procedure (not least the duration of a trial), in particular, in economically complex fields of law like competition cases. This essay analyses what the inquisitorial principle is really about and how the different courts involved in the enforcement of competition law deal with the problem of investigating the facts. Finally, the essay argues that the inquisitorial principle should be modified under the influence of European administrative law to make the procedural law more effective, from which the enforcement of competition law and likewise the legal protection of the claimants challenging administrative acts could benefit.