The protection of fundamental rights in EU antitrust proceedings has been the object of criticism from companies for too long. In fact, the EU Court of Justice, since the well-known judgments in Hoffmann-La Roche and National Panasonic cases, had to deal with claims concerning the lawfulness of antitrust proceedings carried out by the European Commission. Most criticisms were based on the alleged breach of companies’ rights of defence, ranging from the right to a fair trial to the more specific right to privacy. The analysis carried out in the present paper concerns some considerations with regard to the right to a fair trial in EU antitrust proceedings in the light of some recent developments before the ECtHR and the Court of Justice of the EU, together with the forthcoming accession of the European Union to the ECHR. The mentioned accession, in fact, will have the effect of entitling the ECtHR to express itself on possible applications against alleged Convention’s infringements by the EU institutions in the exercise of their competences in the field of antitrust law. The paper highlights the substantial parallel moves of the two jurisdictions, specifically with respect to the right to an effective judicial protection ensured by the competent review courts. In fact, if, on one side, the ECtHR, in the Menarini case, considered that the decision of the AGCM, being subject to a control of full jurisdiction by a judicial authority, did not infringe Art. 6, par. 1, ECHR; on the other side, the EU Court of Justice, in KME Germany case, concluded that the review of legality provided for in Art. 263, TFEU, supplemented by the unlimited jurisdiction in respect of the amount of the fine, provided for in Art. 31, Regulation 1/2003, was not contrary to the requirements of the principle of effective judicial protection in Art. 47 of the Charter. In the light of the analysis carried out in the present paper, and in consideration of the similarities between the Italian and the EU antitrust enforcement systems, it can be affirmed that in the future the ECtHR, when facing an appeal against a Commission’s antitrust decision, might not depart from its findings in the Menarini case, at least as far as the right to an effective judicial protection is concerned.

The Right to a Fair Trial in EU Antitrust Proceedings: The Strasbourg Court Tests Itself Ahead of the EU Accession to the European Convention on Human Rights

MESSINA, MICHELE
2014

Abstract

The protection of fundamental rights in EU antitrust proceedings has been the object of criticism from companies for too long. In fact, the EU Court of Justice, since the well-known judgments in Hoffmann-La Roche and National Panasonic cases, had to deal with claims concerning the lawfulness of antitrust proceedings carried out by the European Commission. Most criticisms were based on the alleged breach of companies’ rights of defence, ranging from the right to a fair trial to the more specific right to privacy. The analysis carried out in the present paper concerns some considerations with regard to the right to a fair trial in EU antitrust proceedings in the light of some recent developments before the ECtHR and the Court of Justice of the EU, together with the forthcoming accession of the European Union to the ECHR. The mentioned accession, in fact, will have the effect of entitling the ECtHR to express itself on possible applications against alleged Convention’s infringements by the EU institutions in the exercise of their competences in the field of antitrust law. The paper highlights the substantial parallel moves of the two jurisdictions, specifically with respect to the right to an effective judicial protection ensured by the competent review courts. In fact, if, on one side, the ECtHR, in the Menarini case, considered that the decision of the AGCM, being subject to a control of full jurisdiction by a judicial authority, did not infringe Art. 6, par. 1, ECHR; on the other side, the EU Court of Justice, in KME Germany case, concluded that the review of legality provided for in Art. 263, TFEU, supplemented by the unlimited jurisdiction in respect of the amount of the fine, provided for in Art. 31, Regulation 1/2003, was not contrary to the requirements of the principle of effective judicial protection in Art. 47 of the Charter. In the light of the analysis carried out in the present paper, and in consideration of the similarities between the Italian and the EU antitrust enforcement systems, it can be affirmed that in the future the ECtHR, when facing an appeal against a Commission’s antitrust decision, might not depart from its findings in the Menarini case, at least as far as the right to an effective judicial protection is concerned.
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11570/2802368
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