Standards of Entrepreneur Rights in Competition Proceedings – a Matter of Administrative or Criminal Law?
Abstract
The question of standards of entrepreneur rights in competition proceedings has
been for many years considered as one the most controversial issues. Its importance
has been increasing considering that the application of antitrust regulations is often
concomitant with a wide-ranging interference with the freedom of economic activity.
This interference manifests itself in cases concerning both restrictive practices and
the control of concentrations. Valuable source of inspiration for a debate on the
need to take into account numerous standards of rights in competition proceedings was the dispute over the nature of competition proceedings and fines (the
controversy around ‘a criminal law nature’ of competition cases). The jurisprudence
of Strasbourg judiciaries explicitly stresses that in the assessment of a case nature
due consideration should rather not be given to formal classifications set forth
in legal provisions but to the real nature of the case. The ECJ did not share the
assumptions adopted by the European Court of Human Rights on the legitimacy of
a wide interpretation of the “criminal charge” notion within the meaning of Article
6(1) ECHR. In the present EU jurisprudence on competition law, there have been
more and more judgments which deal with standards of rights stemming from
the ECHR. In the context of an ever growing severity of penalties, the guarantee
function of law has been gaining in importance, and hence the standards to be
respected in competition proceedings are of a bigger weight.
Major changes were brought by the entry into force, on 1 December 2009, of the
Treaty of Lisbon. The implementation of the concept aiming at an even stronger
reinforcement of the position of fundamental rights was sealed by granting the EU
Charter of Fundamental Rights of 2000 the binding force by including this Charter
into the EU primary law and by defining the basis for the EU accession to the
ECHR (Article 6 TEU). The introduction of new rules of judicial cooperation in
criminal matters may contribute in future to a better dynamic of the criminalization
of the most serious violations of competition law in the EU Member States (Article
83 and following of the TFEU).
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