Thursday, April 24, 2008
The Protection of the Right to Private Life, Home and Correspondence v the Efficient Enforcement of Competition Law: Is a New EC Competition Court the Way Forward?
Posted by D. Daniel Sokol
Michele Messina, University of London - Department of Mathematics, University of Rome- La Sapienza, University of Messina - Institute of Legal Sciences offers an intriguing proposal to change the institutional design of EC competition law in her article The Protection of the Right to Private Life, Home and Correspondence v the Efficient Enforcement of Competition Law: Is a New EC Competition Court the Way Forward?
ABSTRACT: The scope of the present paper is to analyse one possible alternative reason for the desirability, if at all, of an EU Judicial Panel on Competition Law matters, concerning in particular a higher degree of compliance with the European Convention on Human Rights (ECHR) and the jurisprudence of the European Court of Human Rights (ECtHR), while possibly guaranteeing a more efficient EC competition law enforcement system against "hard-core" infringements, such as cartels. Particular attention is focussed on whether the power of inspection, ex Article 20(4) of Regulation 1/2003, is compatible with Article 8 ECHR. The broad power of investigation of the Commission may not allegedly meet the third criterion provided in Article 8(2) ECHR, according to which the interference has to be "necessary in a democratic society". Considering that this criterion has been interpreted by the ECtHR as referring to the existence of adequate and effective safeguards against the abuse of this power, it might not be enough for the Commission to rely on an ex post judicial review of a decision ex Article 20(4) Reg. 1/2003 by the Community Courts, as it is not pre-emptive and has not suspensory effects. Undoubtedly, in an era where the leading idea is constituted by the decentralisation of the application of EC Competition Policy by National Competition Authorities and national courts, the peculiarity of this paper is that its main purpose is to assess whether a centralised system of ex ante control from a Community Court of the Commission‘s decisions regarding the carry out of inspections in business and private premises may be somehow advisable. Far from criticising the present investigative powers of the Commission, whose respect for fundamental rights seems to fairly comply with the ECHR requirements, it cannot be denied that such reform might render the Commission‘s investigations more in line with the Convention and, in particular, with Article 8(2) thereof. Furthermore, and somehow most importantly, it might also be desirable in order to deal more effectively with hard-core cartels, in particular multi-party cartels, which might need simultaneous inspections in different places, thus requiring as many judicial warrants as the jurisdictions involved. To conclude, it is suggested that such an ex ante centralised system of control, somehow beneficial to the enforcement of EC competition law, should be implemented by the CFI, with some internal organisational reforms, rather than by a new EC judicial panel on competition law matters.