Friday, March 9, 2012
Posted by D. Daniel Sokol
Marco Bronckers, Leiden University - Leiden Law School and Anne Vallery describe No Longer Presumed Guilty: The Impact of Fundamental Rights on Certain Dogmas of EU Competition Law.
ABSTRACT: That the penalties imposed under EU competition law amount to criminal sanctions within the meaning of Article 6 of the European Convention on Human Rights has been settled for some time. Yet whether the entry into force in December 2009 of the Charter on Fundamental Rights (as part of the Lisbon Treaty), and the EU’s intended accession to the European Convention on Human Rights, should bring about changes in the operation of EU competition law is a question frequently debated now. Most of that debate has focused on the institutional make-up of competition law enforcement in the EU, notably on whether the European Commission ought to adapt its multiple roles of being simultaneously investigator, prosecutor, adjudicator and policy maker; its practices relating to dawn raids, etc. This article takes a different tack and calls attention to the potential impact of fundamental rights on certain procedural or even substantive concepts in EU competition law. For many years now, the Commission has used presumptions to ease its administrative burden in bringing competition law cases. These presumptions have weighed heavily on defendant companies. This article submits that such administrative presumptions need to be curtailed in order to avoid conflicts with the fundamental presumption of innocence and the attendant rights of the defense. We will illustrate this thesis by reference to the presumptions inherent in the parental liability for anti-competitive conduct of subsidiaries, and in the infringement attributed to the exchange of future price information between competitors.