Thursday, April 22, 2021
At the Mercy of the Gatekeeper: The Theory and Practice of Undertakings’ Fundamental Rights in the EU Cartel Settlement Procedure
This paper analyses remaining questions regarding the protection of undertakings’ fundamental rights by reference to the broader institutional context.
Noteworthy for the theoretical protection of fundamental rights is considering a bargaining approach to settlements and by taking into account that the Commission’s fines carry a communicative function.
In practice, the settlement procedure still suffers from institutional faults; prosecutorial bias and curial deference both in scrutiny of substantive elements of the offence and fining.
Particularly, hybrid cartels have shown a constant fundamental rights challenge; the impact of cases such as HSBC in practice and their overall use should be questioned.