Suchergebnisse

"This book examines the legislative patchwork surrounding access to the European Commission's cartel case files. Recent legislative changes have increased the value of the files and have also highlighted the inherent tension between a number of competing interests affecting their accessibility. The Commission is undoubtedly caught between a rock and a hard place charged with the task to ensure due process, transparency and effectiveness while at the same time promoting both public and private enforcement of the EU competition rules. The author considers how to best ensure a proper balance between the legitimate, but often diverging interests of parties, third parties and national competition authorities in these cases. The book provides a unique and comprehensive presentation of the EU legislation and case law surrounding access to the Commission's cartel case files. The author examines the question of accessibility from three different perspectives; that of the parties under investigation, cartel victims, and national competition authorities. The author also considers the EU leniency system and whether any legislative changes could make the attractiveness of the system less dependent on the possibilities of cartel victims to access the evidence contained in the Commission's case files."

Enforcement of the EU competition rules -- Fundamental rights in the EU -- Criminal sanctions -- Introduction to Part II -- The right to enter -- Dawn raids in sector inquiries -- Once inside : measures taken during the inspection -- The privilege against self-incrimination -- Legal professional privilege.

This doctoral dissertation examines the European Commission's dawn raid practices in competition cases from a fundamental rights perspective. In recent years the Commission has adopted a new and more aggressive enforcement policy, which reflects the widespread understanding that cartels and abuse of market power are harmful to the economy and should be punished. Given both the considerable gains to be made through anti-competitive practices and the cartel's nature of secrecy, effective application of the competition rules requires that competition authorities are vested with far-reaching investigatory powers. At the same time, EU fundamental rights protection has been strengthened through the Lisbon Treaty, and the Commission now has to ensure effective application of the EU competition rules while navigating through an array of fundamental rights, such as the right of the defence and the right to privacy. The doctoral dissertation explores whether it is possible to strike a balance between the interests of ensuring effective dawn raids and adequate fundamental rights protection, or whether the Commission has been handed an impossible task. As the EU Charter of Fundamental Rights requires EU fundamental rights protection to meet or exceed the standard set by the ECHR, the research is based on case-law from both the EU Courts and the European Court of Human Rights. The research demonstrates that the European Court of Human Rights has adopted a flexible approach towards inspections at business premises; it does not require an ex ante review of inspection decisions and accepts rather intrusive investigatory measures, provided that and as long as the procedural safeguards surrounding such measures are considered adequate. This way, the court manages to strike a balance between efficiency concerns and the rights of undertakings. As for the EU system, the EU Courts are not providing judicial review to the extent required by the ECHR. While inspection decisions may be challenged, the possibilities to challenge measures taken on their basis, or have those measures suspended, are limited. This discrepancy between EU and ECHR law – which is of seemingly limited nature – may affect the legitimacy of the entire dawn raid procedure as the granting of far-reaching investigatory powers must be counterbalanced by effective judicial control to ensure that measures adopted by the Commission are neither disproportionate nor arbitrary. Absent an effective judicial control of measures taken on the basis of inspection decisions, the procedural safeguards surrounding dawn raids cannot be considered adequate, and it is possible that the powers of the Commission may need to be restricted accordingly. The research also demonstrates that some of the limitations in the legal professional privilege – such as the exclusion of correspondence with non-EU lawyers or legal advice that lacks connection with the subject-matter of the investigation – do not serve the interests of a proper administration of justice and may therefore be questioned.

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