Antitrust Fines, Due Process and the ECHR

Over at the highly recommended ECHR Blog, there's an excellent post on EU antitrust fines and ECHR fair trial rights.

The author of the post, Felix Ronkes Agerbeek, is an eminent lawyer, who works in the Commission's presitigious legal service, and who marshals his arguments very carefully.

He makes a telling point: The case law of the European Court of Human Rights on Article 6 of the ECHR is unclear and imprecise when it comes to transposing it to the Commission's antitrust procedure. He draws the following general conclusion:

"One thing is clear, though. The simple fact that Article 6[ECHR] applies does not prevent the adoption of sanctions by an administrative body. On the contrary, according to the case-law it is perfectly acceptable that certain sanctions are imposed by way of an administrative decision."

There's no doubt that he's right about that. But the procedure used by the Commission's DG Competition may need a few modifications all the same. For example, the European Court of Human Right's judgment in Dubus SA v. France may require a reorganization of that department in order to separate the investigative and adjudicative roles currently exercised by the same people. We'll see what the General Court makes of that judgment in the case pending before it in Case T-56/09 Saint Gobain Glass France and Others v. Commission.

For our post on the Dubus case see here.

And as a commentator pointed out on the ECHR Blog, the General Court's caselaw on ne bis in idem may need revisiting in the light of the European Court of Human Right's recent judgment in Sergey Zolotukhin v. Russia. As it happens, the Court of Justice itself has the opportunity to do just that and to align the EU case law with that of the European Court of Human Rights in the pending case C-17/10 Toshiba Coroporation and others v. v Úřad pro ochranu hospodářské soutěže. Again, we'll have to wait and see what happens.

We're very grateful to Mr. Ronkes Agerbeek for having started an interesting and worthwhile debate in blogosphere with such a thoughtful and interesting post.

Comments

[Vialegis.blogspot.com]

Toshiba Corporation and others will indeed be a landmark ruling. Not only because of the question of "ne bis in idem", but also regarding relations of the Commission and national competition authorities when it comes to application of domestic anti-trust rules. It is interesting that the referring court in this case did not want to follow a ruling of the Czech Supreme Administrative Court (given as a cassation decision) and therefore referred for a preliminary ruling. It is a nice example of how to "circumvent" binding effects of supreme courts' decisions in Europe.