(This article is a summary of an article that is to be published in World Competition, Kluwer Law International.)
HUMAN RIGHTS: TRADITIONALLY DISMISSED BY THE EUROPEAN COURTS
So far, both players of the two-tier judicial system of the EU—namely the Court of First Instance ("CFI") and the European Court of Justice ("ECJ")—have craftily avoided addressing human rights issues in competition law cases. Even though they repeatedly recognised human rights as "general principles of EU law," they consistently relied upon ad hoc procedural or formal flaws in order to avoid any in-depth assessment of human rights defences.
Lack of success in using human rights defences in competition cases within the EU judicial system is arguably a symptom of the inability to sue the EU itself for human rights breaches before the ECHR. Even though each of its Members are parties to it and even though adherence to the Strasbourg Convention is, interestingly enough, a condition to member-ship of the EU, the EU has not itself acceded to the Strasbourg Convention. This lack of EU commitment implies that the EU institutions are not directly liable before the ECHR in Strasbourg. As a result, an individual is not entitled to complain to the ECHR1 about the conduct of EU institutions and the ECJ is not bound by ECHR case-law. This also means that an individual is not entitled to complain about the conduct of an EU Member State when this Member State acts in the fulfilment of its EU obligations.2
A SHIFTING POLICY FOLLOWING ADOPTION OF EUROPE'S CONSTITUTION?
In the future, this practice is unlikely to be sustainable given the recent incorporation of the Charter of Fundamental Rights of the European Union ("Charter")3 into the Draft Treaty establishing a Constitution for Europe ("draft EU Constitution")4 and the likely accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 ("Strasbourg Convention").5
The incorporation of the Charter gives it a constitutional status and renders it legally binding. This is likely to gradually alter the standard practice of the CFI and the ECJ away from classifying the Charter’s right as mere "general principles of EU law." Even though it is still uncertain how far some of the Charter provisions create directly effective rights or how far its principles require implementing legislation, human rights defences will likely develop from hollow and far-off ethical standards into rounded, down-to-earth legal arguments to be relied upon before a Court. It will be for the CFI and the ECJ to exactly delimit their effect through their jurisprudence. However, it would be contrary to the political will of the EU Member States if the Courts were to confine the Charter to its current position of "general principles of EU law." Progress, to a lesser or greater extent, is likely.
The draft EU Convention contains a constitutional authorisation for the EU to accede to the Strasbourg Convention.6 This shift in political will among the Member States towards EU accession implies that, in practice, EU is probably on a matter of time. EU accession will provide analogous protection to EU citizens in Strasbourg vis-à-vis the conduct of EU institutions and the conduct of EU Member States in the fulfilment of their EU obligations that they currently enjoy vis-à-vis the con-duct of EU Member States in the fulfilment of domestic affairs. In addition, the probable outcome of EU accession would be that the ECJ would not be bound by the ECHR as a superior court but as a specialised court.7
For the EU Constitution to come into force, all Member States will have to ratify it. This will prompt referendums in many of the Member States (e.g. Ireland and Denmark, many of the New Member States that will join in 2004 and perhaps France, Portugal and Spain). Even though it is possible and cannot be dismissed that one or more Member States will refuse to ratify the EU Constitution, this author believes that any such concerns would be limited to legal formalities and that the political will to press on with some kind of constitution will be inevitable, even with a restricted group.
EFFECTS UPON COMPETITION LAW
The increased powers of investigation of the European Commission under the new competition law regime (Council Regulation (EC) No 1/20038)—applicable as of 1 May 2004—will probably have the effect of producing a large number of human rights defences tackling the European Commission’s powers with respect to dawn raids, procedural safeguards and in-house privilege. The increased criminal nature of national competition law regimes will equally foster human rights-based actions against national competition authorities. At present, Austrian, French, German, Greek, Irish, Italian and UK competition law expressly provide imprisonment as a possible sanction for competition law violations.
Most of the human rights defences that will be relied upon in competition cases will be based upon rights that are part of both the Charter and the Strasbourg Convention. These Charter’s rights are deemed to have the same scope and meaning as laid down in the Strasbourg Convention, unless EU law provides for more extensive protection.9 As a result, they are subject to the principle of proportionality. This implies that the EU institutions are only allowed to limit these rights if a limitation is necessary and genuinely meets objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others.10 As a second source of interpretation, the Charter’s rights need to be explained in the light of the constitutional traditions common to the EU Member States.
There is no dispute that the Strasbourg Convention extends certain rights and freedoms to companies and other corporate entities. This is, by analogy, also the case for the Charter’s rights. The right to a fair trial, for example, applies to companies.11 So does the right to respect for private and family life, home and correspondence.12
Given that human rights will, in the first instance, be most commonly invoked before national courts, the likely increase in human rights defences will probably bring about a new set of case-law in which national judges will learn to deal with human rights claims without undermining the efficiency of European competition law.
WHICH HUMAN RIGHTS ARE CAPABLE OF CONSTITUTING A DEFENCE IN COMPETITION LAW CASES?
Even though this is not exhaustive, the rights that are most commonly invoked in competition law matters are the right to a fair trial and the right to an effective remedy, the freedom from retroactive criminal offences and punishment, the principle of double jeopardy and the right to respect for private and family life, home and correspondence.
The right to a fair trial and the right to an effective remedy (Articles II-47 and II-48 of the Charter and Articles 6 and 13 of the Strasbourg Convention)
Examples of situations in which a claim could be constructed upon this defence include:
- When the timing of the proceeding exceeds a "reason-able time";
- When a European Commission’s decision finds that a company has abused its dominant position by launching so-called "vexatious" legal proceedings (given that access to a court is a fundamental right, the European Commission could only find this to be an abuse in exceptional circumstances);
- When the European Commission’s decision is not sufficiently motivated and lacks probative value;
- When the European Commission, prior to formally imposing a fine on the undertaking accused, informs the press of the proposed finding which has been submitted to the Advisory Committee and the College of Commissioners for deliberation; or
- When the European Commission refuses access to the file to the undertaking accused.
In ECHR case-law, Article 6 is applied in a more or less strict fashion depending on whether the offence is of a criminal or non-criminal nature. However, this criminal/non-criminal division does not necessarily correspond with the classification under national law. Furthermore, the fact that Council Regulation (EC) No 1/2003 states that the decisions by which the European Commission imposes fines "shall not be of a criminal nature"13 by no means binds the ECHR. Even though the competition concern involved in Société Stenuit v. France14 was a matter of French administrative law, the ECHR considered that the criminal nature of the case was "revealed unambiguously" for the purposes of the Strasbourg Convention by the possibility of severe and deterrent maximum fines in the event of a breach of the legislation concerned.15 In this case, France was found to have violated Article 6 of the Strasbourg Convention. Even though an appeal before the Conseil d’Etat was available under the French competition law regime, the ECHR considered that the Conseil d’Etat’s refusal to rule upon the compliance of French competition law procedure with Article 6 of the Strasbourg Convention negated a full judicial review and constituted therefore, ironically enough, a breach of this very article.
The extensive sui generis interpretation of a "fair trial" by the ECHR, with "objective justice" and "equality of arms" doctrines, the residual right to a "fair hearing" and the consideration of "facts as a whole" has modified longstanding national practices in some countries and is therefore capable of affecting the procedure of European competition law. It will be interesting to observe how, once the Charter becomes constitutional, the ECJ will decide upon allegations under Article 6 of the Strasbourg Convention as those made by the applicants in the PVC cartel.16 How would the ECJ, for example, respond to future similar claims that the European Commission’s investigation infringed the applicants’ freedom from self-incrimination? Also, when con-fronted with similar claims alleging insufficient access to the European Commission’s file during the administrative procedure, would the ECJ still hold that the lack of access to the file had not affected the applicants’ ability to conduct their defence and dismiss the claim? At the level of an appeal, it remains to be seen whether the ECHR will consider that individuals have sufficient access to the European Courts and whether it will find that the proceedings before these courts guarantee a right to trial "within a reasonable time."
The freedom from retroactive criminal offences and punishment (Article II-49 of the Charter and Article 7 of the Strasbourg Convention)
In practice, this defence might, for example, be used when the European Commission reasons by analogy in order to impose a fine on an undertaking accused of participating in a cartel with respect to a previous period of time. It needs to be stressed that the extensive interpretation of "criminal" cases is likely to enable lawyers to rely upon this right, even when competition law regimes do not penalise infringements with criminal sanctions.17
The high frequency with which this right has been invoked before the CFI and the ECJ in competition law cases to date is notable. It is notable, not the least, because the ECHR has admitted very few Article 7 cases for consideration on their merits and because a breach of Article 7 has very rarely been found.
The principle of "ne bis in idem" or double jeopardy, restricting the possibility of a defendant being prosecuted or punished several times for the same offence (Article II-50 of the Charter and Article 4 of Protocol No. 7 to the Strasbourg Convention)18
Applicants will likely mainly rely upon this principle when the European Commission starts a second prosecution after a national competition authority has completed a first prosecution or when several national competition authorities initiate prosecutions for the same offence.
The applicant’s ability to rely upon this principle before the European Courts is likely to induce effective co-ordination between the European Commission and the national com-petition authorities under the new competition law regime and to bring about a gradual harmonisation of the national fining policies.
The right to respect for private and family life, home and correspondence (Articles II-7 and II-8 of the Charter and Article 8 of the Strasbourg Convention)
In practice, this defence is most commonly relied upon when the European Commission carries out dawn raids at the premises of an undertaking accused. It is likely to be relied upon even more now that the European Commission has the power to also dawn raid an employee’s home according to Article 21 of Council Regulation (EC) No 1/2003. Even though the ECHR has been willing to extend the right to respect for a home to business premises,19 it should not be overlooked that the Strasbourg Convention does not recognise Article 8 as an absolute right. Interferences are allowed as long as they are in accordance with the law, pursue a legitimate aim and are "necessary in a democratic society."20
Such interferences are easier to justify where business premises are involved than where a case concerns wholly domestic premises. Moreover, because of their very nature, Article 8 rights often clash with other Strasbourg Convention rights. For example, when a lawyer is involved, encroachment on professional secrecy may affect the proper administration of justice and hence the rights guaranteed under Article 6 of the Strasbourg Convention.21 To deal with this type of situation, the ECHR has developed a "margin of appreciation" doctrine which enables it to balance conflicting fundamental rights.
Still, one wonders whether the ECJ, when confronted with claims based upon the inviolability of business premises such as in the recent PVC cartel,22 will continue to limit its analysis to the nature and scope of the European Commission’s powers of investigation conferred by Regulation No 1/2003, which allows recourse to "proportionate" coercive measures with the assistance of Member State officials where an undertaking opposes an investigation. When facing allegations that the case-law of the ECHR goes further and does not, in principle, allow interferences with a "home" by the authorities against the will of a suspect and by way of coercion, will the ECJ not feel compelled to revisit its jurisprudence?
It is likely that the recent developments brought about by the incorporation of the Charter in the draft EU Constitution and the likely accession of the EU to the Strasbourg Convention will progressively pave a way to competition law defences on the basis of human rights. This is even more so given the increased powers of investigations that the European Commission will enjoy under the newly modernised competition law regime as of May 2004.
In relation to timing, it may be that no noticeable developments occur in this area until the draft EU Constitution is ratified by the EU Member States. A further step forward might then occur upon the EU acceding to the Strasbourg Convention.
It is hoped that this trend will also improve the quality of human rights claims brought before the European Courts. A succinct survey of these claims so far demonstrates that the ease with which the CFI and the ECJ have been able to dismiss human rights claims to date may partly be due to the lack of analytical strength of these claims. Given that they were not considered as the "core arguments," lawyers tended not to spend sufficient time and effort as to their cautious elaboration. Increased prospects of success will probably alter this practice.
1 An application against the EC was declared inadmissible for this reason in CFDT v European Communities No 8030/77, 13 DR 231 (1978). An application against the European Patent Office was also declared inadmissible on this basis in Heinz v. Contracting States also Parties to the European Patent Convention No 21090/92, 76A DR 125 (1994).
2 M&Co v. FRG, No 13258/87, 64 DR 138 (1990). The ECHR held that applicants were not allowed to launch a procedure against Germany on the basis of Article 6 of the Strasbourg Convention (right to a fair trial) for action required of Germany by EU law to enforce a fine imposed by the European Commission. The ECHR indicated that Germany had transferred its powers to the EU and that this was not incompatible with its membership of the Strasbourg Convention given that fundamental rights received an equivalent protection under EU law.
3 OJ C 364/1 , also available at
4 The Draft Treaty establishing a Constitution for Europe was adopted by consensus by the Convention on the Future of Europe on 13 June and 10 July 2003. The full text of the Draft is available at
5 The Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 with Protocol Nos. 1, 4, 6, 7, 12 and 13 is available at
6 Part I, Article 7 of the draft EU Constitution (Fundamental rights) §2: "The Union shall seek accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Constitution."
7 Final Report of the Working Group II "Incorporation of the Charter/Accession to the ECHR" CONV 354/02 of 22 October 2002, p. 12.
8 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty.
9 Part II, Article 52 (Scope and interpretation of rights and principles) of the draft EU Convention.
10 See footnote 9.
11 Dombo Beheer v The Netherlands 18 EHRR (1993) 213.
12 Sociétés Colas Est et Autres v France No 37971/97 of 16 April 2002.
13 Article 23(5) of Council Regulation (EC) No 1/2003.
14 Case Société Stenuit v France of 24 February 1992, No 11598/85, A232-A (1992). Stenuit withdrew its application in 1991 and the case was subsequently struck off the list.
15 The ECHR made similar statements in Cases Öztürk v. Germany of 21 February 1984, Lütz v. Germany of 25 August 1987 and Bendenoun v. France of 24 February 1994.
16 Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 Limburgse Vinyl Maatschappij (LVM) v Commission and Others of 15 October 2002.
17 See footnotes 14 and 15.
18 All EU Member States have ratified Protocol No. 7 except Belgium, Germany, the Netherlands, Portugal, Spain and the United Kingdom.
19 Chappell v UK, A 152-A (1989) and Niemietz v Germany, A 251-B (1992).
20 Article 8(2) of the Strasbourg Convention.
21 Niemietz v Germany, see footnote 19.
22 See footnote 16.
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