Abstract
During the last decade, the evolution of the competition law enforcement has reinvigorated the debate concerning the compatibility of the EU enforcement regime with fundamental rights. In particular, two factors have increased the relevance of the protection of fundamental rights in the context of competition law enforcement: the entry into force of the Lisbon Treaty (incorporating the EU Charter of Fundamental Rights) and the progressive criminalization of competition law enforcement. One of the tensions between competition law enforcement and the protection of fundamental rights concerns the right to a fair trial included in Article 6 of the European Convention of Human Rights (ECHR), as well as in Article 47(2) EU Charter. Due to the technical nature of competition law analysis, the EU and national courts have traditionally granted a certain margin of discretion to the competition authorities. In the aftermath of the Menarini judgment of the European Court of Human Rights (ECtHR), the question is whether such margin of discretion still complies with the requirement of full judicial review introduced in Menarini. This chapter reviews the ongoing debate on compatibility of EU competition law enforcement with the fundamental rights enshrined in the EU Charter (Sect.1), discusses the requirement of full judicial review introduced by the ECtHR in Menarini (Sect. 2), and analyzes the compatibility of the requirement of full judicial review with the standard applied by the Court of Justice of European Union (CJEU) in antitrust cases (Sect. 3). While in its recent jurisprudence the CJEU confirms the compatibility of its standard of judicial review with Article 47 of the EU Charter, it remains unclear whether the ECtHR would achieve the same conclusion in relation to Article 6 ECHR. The issue of compatibility of judicial review with the requirements of fair trial remains open at the national level where the courts often continue to limit their review to the procedural aspects of the competition authority’s decisions.
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Notes
- 1.
A good example of the market integration objectives of EU competition rules is provided in the landmark judgment of the Court of Justice of the European Union (CJEU) in the case Consten-Grundig: “…an agreement between a producer and a distributor which tend to restore the national divisions in trade between Member States might be such as to frustrate the most fundamental objections of the Community. The Treaty, whose preamble and content aim at abolishing the barriers between States, and which in several provisions gives evidence of a stern attitude with regard to their reappearance, could not allow undertakings to reconstruct such barriers”. Joined Cases 56 and 58–64, Établissements Consten S.à.R.L. and Grundig-Verkaufs-GmbH v Commission (1966) ECR 00429, para. 340.
- 2.
Council Regulation No 17 (EEC): First Regulation implementing Articles 85 and 86 of the Treaty. OJ 013, 21.02.1962.
- 3.
Consolidated version of the Treaty of the Functioning of the European Union, OJ C-115/99, 9.5.2008. Entered into force on 1.12.2009.
- 4.
Regulation 17/62, Arts 2–8.
- 5.
Statistics concerning the number and amount of fines imposed by the European Commission due to competition law infringements is available at http://ec.europa.eu/competition/cartels/statistics/statistics.pdf. Accessed 10 March 2013.
- 6.
One of the first commentators on the lack of compatibility of the EU competition law enforcement regime with fundament rights was Graupner at the beginning of the 1970s.
Graupner (1973), p. 291.
- 7.
Consolidated version of the Treaty on European Union, OJ C-83/15, 30.3.2010.
- 8.
Charter of Fundamental Rights of the European Union. OJ C-83/391, 30.3.2010. The Charter was adopted in Nice on 7.12.2000 without binding effects. However, since the entry into force of Art. 6 TEU, the Charter has become binding for the EU institutions and the EU MS when they “implement” EU law—Art. 51(1).
- 9.
Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4.11.1950. http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/ 0/Convention_ENG.pdf. Accessed 10 March 2013.
- 10.
Under Art. 52(3) of the EU Charter, “…this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms…”.
- 11.
- 12.
Leniency is a policy that aims at detecting secret cartels by offering to the companies involved in a cartel partial or full immunity from the fine if they actively cooperate with DG Competition by providing evidence to prove the existence of the cartel. The leniency policy was first introduced by the US antitrust authorities at the beginning of the 1990s, and nowadays most of the NCAs in the world have introduced a leniency policy. Commission Notice on Immunity from Fines and Reduction of Fines in Cartel Cases, OJ C-298/17, 8.12.2006.
- 13.
Art. 101 TFEU sanctions both anticompetitive agreements, which have the object as well the effect of restricting the degree of competition in the market. An example of object restriction is a cartel, established by the participating companies with the intent to restrict competition. On the other hand, vertical agreements (i.e., licensing or distribution agreements) usually do not aim at restricting competition per se, but they have an anticompetitive effect. While object restrictions are de facto per se illegal, effect restrictions may be justified under Art. 101(3) TFEU.
- 14.
See above DG Competition, statistics on fines imposed on cartels.
- 15.
The deterrence effect of cartel fines is emphasized in the EU Commission Notice on the method to calculate fines. The Notice states that “the Commission will pay particular attention to the need to ensure that fines have a sufficiently deterrent effect; to that end, it may increase the fine to be imposed on undertakings which have a particularly large turnover beyond the sales of goods or services to which the infringement relates”. European Commission, Guidelines on the Method of Setting Fines Imposed pursuant to Article 23(2)(a) of Regulation No 1/2003. OJ C-210/2, 1.9.2006, para. 30.
- 16.
In Engel, the ECtHR ruled that the categorization of a sanction for the scope of the ECHR is autonomous from its categorization under national law (i.e., classified as administrative or criminal law). According to the ECtHR case law, three criteria have to be analyzed in order to determine whether a sanction has a criminal character: (1) the categorization of the crime under domestic law, (2) the nature of the crime, (3) the nature and gravity of the sanction. The three criteria are alternative, and not cumulative. ECtHR, Engel and others v. Netherlands. Judgment issued on 8.6.1976. Application no. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72, para. 82.
- 17.
Council Regulation (EC) n. 1/2003 of 16 December 2002, on the Implementation of the Rules on Competition Laid down in Articles 81 and 82 of the Treaty. OJ L-1/1, 4.1.2003.
- 18.
Forrester (2009), p. 817.
- 19.
In Delimitis, the CJEU recognized the direct effect of Articles 101(1) and 102 TFEU, which thus could be enforced by the national authorities of the EU MS. On the other hand, the CJEU ruled that the EU Commission preserved the exclusive right to grant exemptions to notified agreements under Article 101(3) TFEU.
Case C-234/89, Stergios Delimitis v Henninger Bräu AG (1991) ECR I-00935.
- 20.
Art. 35 Regulation 1/2003.
- 21.
Art. 5 Regulation 1/2003 only lists the NCAs powers in enforcing Art. 101 and 102 TFEU. In particular, the NCAs can adopt decisions requiring an infringement to be brought to the end, order interim measures, accepting commitments and imposing fines. On the other hand, these powers are applied by the NCAs in accordance with the national procedural law.
- 22.
Fingleton et al. (1997).
- 23.
Efremova (2012), p. 23.
- 24.
Vedder (2004), p. 5.
- 25.
A good example that shows the tendency of the NCAs to follow the example of DG Competition in focusing their enforcement activities on the cartels detection is the adoption of a Model Leniency Program by the European Competition Network (ECN). The ECN is an informal network of cooperation among the NCAs of the EU MS that is chaired by DG Competition. In 2006, the ECN adopted a model of leniency policy that has been later implemented by most of the NCAs at the domestic level. According to Jaspers and Gauer, the adoption of the leniency model shows that the fight against cartels has become a top priority both for DG Competition and for the NCAs of the EU MS. Gauer and Jaspers (2007), p. 35.
- 26.
An extensive analysis of the ECtHR case law in relation to Art. 6 ECHR is provided by Vitkauskas and others (2009), Article 6. http://www.interights.org/files/107/INTERIGHTS%20Article%206%20Manual.pdf. Accessed 10 March 2013.
- 27.
See, for instance, Slater et al. (2008), http://www.coleurope.eu/sites/default/files/research-paper/gclc_wp_04-08.pdf. Accessed 10 March 2013.
- 28.
DG Competition introduced Hearing Officers since the early 1980s. Their function is to chair the meeting between the investigating team of DG Competition and the representatives of the companies following the Statement of Objections to the parties. The Hearing Officers directly respond to the Competition Commissioner, and thus they are not part of the team investigating the case within DG Competition. The main function of the Hearing Officers is to ensure that the investigating team complies with right of access to the file and procedural guarantees throughout the investigations. For an overview of the functions of the Hearing Officers, see http://ec.europa.eu/competition/hearing_officers/index_en.html. Accessed 10 March 2013. Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the Function and Terms of Reference of the Hearing Officer in certain Competition Proceedings. OJ L-275/29, 20.10.2011.
- 29.
Bronckers and Vallery (2011), p. 535.
- 30.
ECtHR, Jussila v. Finland, Judgment of 21.5.2003. Application n. 73053/01.
- 31.
Wils (2011), p. 189.
- 32.
ECtHR, Jussila v. Finland, para. 43.
- 33.
Castillo de la Torre (2009).
- 34.
Castillo de la Torre (2009), p. 2.
- 35.
Jussila concerned national proceedings relating to a tax matter. Jussila received an administrative pecuniary sanction due to a tax evasion case and challenged the compatibility of such administrative enforcement system with Art. 6 ECHR. Due to the similarities between the tax and the competition law enforcement systems, Wils extended the ECtHR conclusions in Jussila to the case of competition law enforcement.
- 36.
ECtHR, Menarini Diagnostics S.R.L. v. Italy. Judgment issued on 27.9.2011. Application n. 43509/08. The authors relied on the translation of the English translation of the Italian language judgment elaborated by Jessica Tristano, available at www.duitbase.it. Accessed 10 March 2013.
- 37.
Autorita Garante per la Concorrenza ed il Mercato, http://www.agcm.it/. Accessed 10 March 2013.
- 38.
Law n. 287 approved on 13.10.1990, “Norme per la Tutela e la Concorrenza del Mercato”. Arts 2,3,4 of the Italian Law 287/1990 mirror Arts 101, 102 TFEU. Under Art. 1(1) of the Law 287/1990, the Italian NCA enforce this legislation when Arts 101 and 102 TFEU are not applicable (i.e., when the anticompetitive practice does not affect the intra-Community trade). The text of the Law 287/1990 is available at http://www.agcm.it/normativa/concorrenza/4531-legge-10-ottobre-1990-n-287-norme-per-la-tutela-della-concorrenza-e-del-mercato.html. Accessed 10 March 2013.
- 39.
Tribunale Amministrativo Regionale per il Lazio, http://www.giustizia-amministrativa.it/italia/lazio.htm. Accessed 10 March 2013.
- 40.
ECtHR Menarini, paras 10–21. Under Article 33 of the Law 287/1990, TAR Lazio and the Council of State have exclusive competence to review appeals against the administrative decisions of the Italian NCA.
- 41.
ECtHR Menarini, paras 33–37.
- 42.
ECtHR Menarini, paras 50–56.
- 43.
ECtHR Menarini, paras 41–42.
- 44.
ECtHR Menarini, para. 59.
- 45.
ECtHR Menarini, para. 58.
- 46.
ECtHR Menarini, para. 60.
- 47.
ECtHR Menarini, paras 64–66.
- 48.
ECtHR Menarini, para. 67.
- 49.
Wils (2011).
- 50.
In the Menarini judgment, in fact, the ECtHR dedicated only few paragraphs (i.e., 64–66) to discuss this important issue. Among the commentators, Bronckers and Vallery have expressed dissatisfaction with the manner whereby the ECtHR checked the compliance with the principle of full judicial review by TAR and the Council of State in Menarini.
Bronckers and Vallery (2012), p. 44.
- 51.
This type of standard of review has been reiterated in TAR and Council of State case law. See, for instance, the judgment of the Council of State n. 9575, Soc. T.I. v. Autorità Garante Concorrenza e Mercato, issued on 29.12.2010. The judgments of the Council of State are available at http://www.giustizia-amministrativa.it/webcds/frmRicercaSentenza.asp. Accessed 10 March 2013.
- 52.
Dissenting opinion of Judge Pinto de Albuquerque attached to ECtHR judgment, Menarini Diagnostics S.R.L. v. Italy. Judgment issued on 27.9.2011. Application n. 43509/08.
- 53.
Dissenting opinion of Judge Pinto de Albuquerque in Menarini, paras 7–8.
- 54.
Dissenting opinion of Judge Pinto de Albuquerque in Menarini, para. 10.
- 55.
Council Regulation (EC) n. 1/2003 of 16 December 2002, on the Implementation of the Rules on Competition Laid down in Articles 81 and 82 of the Treaty. OJ L-1/1, 4.1.2003, Art. 31.
- 56.
Case C-3/06P Groupe Danone v Commission [2007] ECR I-1331, para. 62.
- 57.
Opinion of AG Tizzano in Cases C-12/03 P and C-13/03 P Commission v Tetra Laval, para. 86.
- 58.
Case COMP/M.2283 Schneider/Legrand [2001].
- 59.
Id., paras 193–220.
- 60.
See Press Release No 84/02 “The Court of First Instance Annuls the Commission’s Decision Prohibiting the Concentration Between Schneider and Legrand and Ordering them to Separate Accordingly”, 22 October 2002, available at http://curia.europa.eu/en/actu/communiques/cp02/aff/cp0284en.htm. Accessed 10 March 2013.
- 61.
Case T-351/03 Schneider Electric SA v Commission [2007] ECR II-2237, para. 227.
- 62.
Case T-342/99 Airtours v Commission [2002] ECR II-2585, para. 129.
- 63.
Id., para. 130.
- 64.
Case 41/69 Chemiefarma v Commission [1970] ECR 661, paras 180–188.
- 65.
Id., para. 188.
- 66.
Case T-43/92 Dunlop Slazenger International Ltd v Commission [1994] ECR II-441, paras 178–179.
- 67.
Case 100/80 SA Musique Diffusion française and others v Commission [1983] ECR 1825, paras 123–124.
- 68.
Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P, and C-219/00 P, Aalborg Portland and Others v Commission, para. 279.
- 69.
Faull and Nikpay (2007), p. 588.
- 70.
Id., p. 590.
- 71.
See, for example, Joined Cases T-346/02 and T-347/02 Cableuropa SA v Commission 2003 ECR II-04251, para. 119, and Case T-158/00 ARD v Commission 2003 ECR II-03825, para. 194.
- 72.
Case T-464/04 Impala v Commission (Impala I) [2006] ECR II-2289, para. 475.
- 73.
Case T-116/04 Wieland-Werke v Commission [2009] ECR II-1087, para. 32.
- 74.
Bebr (1981), p. 139. The author adds that “it is idle to emphasize in this connection that an appropriate reasoning of a judgment supporting an evaluation of economic facts may be a proper guarantee for a judicial review, exercised properly and within the necessary limits”.
- 75.
Case 43/85 ANCIDES v Commission [1987] ECR 3131.
- 76.
Case T-156/98, RJB Mining plc v Commission [2001] ECR II-337, para. 87.
- 77.
Case C-12/03P Commission v Tetra Laval [2005] ECR I-0987, paras 37–40: “CFI…required [Commission] to satisfy a standard of proof and to provide a quality of evidence in support of its line of argument which are incompatible with the wide discretion [emphasis added] which it enjoys in assessing economic maters”.
- 78.
As suggested by Christoforou in Reeves et al (2006), p. 172.
- 79.
Case 210/01 General Electric v Commission [2005] ECR II-5575, para. 63.
- 80.
Legal (2006), p. 109. According to Judge Legal, the discretion with regard to economic matters “must be in the choice of the approach best suited to the analysis of a given situation or phenomenon. It can be a choice of economic methodology, no theory being inadmissible as long as it provides useful tools to come to a convincing result”. Legal (2006), p. 115.
- 81.
Case T-102/96 Gencor v Commission [1997] ECR II-0879, paras 164–165; Joined Cases C-68/94 and C-30/95 France v Commission [1998] ECR I-1375, paras 223–224; Case T-342/99 Airtours v Commission [2002] ECR II-02585, para. 64; Case T-342/00 Petrolessence v Commission [2003] ECR II-01161, para. 101.
- 82.
Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003. Official Journal C 210, 1.09.2006, pp. 2–5.
- 83.
See Svetlicinii (2010), p. 318.
- 84.
Forrester (2011), p. 194.
- 85.
Case T-240/07 Heineken v Commission, paras 308–309.
- 86.
Joined Cases T-236/01, T-239/01, T-244/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon v Commission [2004] ECR II-1181, para. 371.
- 87.
Case T-191/06 FMC Foret v Commission, para. 333.
- 88.
See Joined Cases C-125/07 P, C-133/07 P, C-135/07 P and C-137/07 P Erste Group Bank et alv Commission [2009] ECR I-8681, para. 187. See also Case C-291/98 P Sarrió v Commission [2000] ECR I-9991, paras 96 and 97, and 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 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, para. 617.
- 89.
Barbier de La Serre and Winckler (2012), p. 369.
- 90.
Case C-386/10P Chalkor v Commission, judgment of 8 December 2011.
- 91.
Case C-272/09P KME Germany and others v Commission, judgment of 8 December 2011.
- 92.
Commission Decision C(2004)2826 of 3 September 2004, Case COMP/E-1/38.069—Copper plumbing tubes.
- 93.
Case T-127/04 KME Germany and others v Commission [2009] ECR II-01167.
- 94.
Opinion of AG Sharpston in Case C-272/09P KME Germany and others v Commission, paras 40–41.
- 95.
Case C-12/03P Commission v Tetra Laval [2005] ECR I-0987.
- 96.
Case C-272/09P KME Germany and others v Commission, judgment of 8 December 2011, para. 94.
- 97.
Id., para. 102.
- 98.
Id., para. 106.
- 99.
See Sibony (2012), pp. 1989–1995.
- 100.
KME judgment, para. 109.
- 101.
Menarini judgment, para. 59.
- 102.
Nikolic (2012), p. 587.
- 103.
Sibony (2012), p. 2000.
- 104.
Svetlicinii and Botta (2012), p. 489.
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Botta, M., Svetlicinii, A. (2014). The Standard of Judicial Review in EU Competition Law Enforcement and Its Compatibility with the Right to a Fair Trial Under the EU Charter of Fundamental Rights. In: Kerikmäe, T. (eds) Protecting Human Rights in the EU. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-38902-3_7
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