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Enforcement of EU Competition Law and Respect for Human Rights

Enforcement of EU Competition Law and Respect for Human Rights

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An essay for the 2011 Undergraduate Awards (Lecturer Nomination) Competition by Trevor Glavey. It is nominated by Lecturer Laurent Pech of NUI Galway in the category of Law
An essay for the 2011 Undergraduate Awards (Lecturer Nomination) Competition by Trevor Glavey. It is nominated by Lecturer Laurent Pech of NUI Galway in the category of Law

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Published by: Undergraduate Awards on Sep 01, 2012
Copyright:Attribution Non-commercial


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School of LawEU Competition LawCourse Code: LW 426
Essay Title:
Enforcement of EU Competition Lawand Respect for Human Rights
Student ID No: 08659290Year & Course: Final Year B. Corp. Law.
Word Count (inclusive of footnotes but exclusive of bibliography): 2602
1. Introduction
With the entry into force of the Lisbon Treaty the European institutions have become bound by theCharter of the Fundamental Rights of the European Union (the Charter, CFREU)
, which has thesame legal status as the Treaties.
The Charter draws it inspiration from the European Conventionfor the Protection of Human Rights and Fundamental Freedoms (the Convention, ECHR).
 Consequently Article 52(3) CFREU clearly states that in so far as the Charter contains rights thatcorrespond to rights guaranteed by the Convention the “meaning and scope of those rights shall bethe same as those laid down in the Convention”.
Giving this provision’s natural interpretation, itwould seem that in the context of EU competition law enforcement the Commission is obliged torespect the human rights of undertakings not only as set out under the Charter but as interpreted bythe European Court of Human Rights (ECtHR). For present purposes the corresponding rights thathave a direct bearing on EU competition law enforcement are Articles 47 and 48 CFREU whichcorrespond with Article 6 ECHR on the right to a fair trial including the rights of the defence,Article 7 CFREU and Article 8 ECHR on respect for private life.The question that arises therefore is whether the human rights of undertakings have been protected by the European Court of Justice (ECJ) to the requisite level in the course of Commissioninvestigations under Articles 101 and 102 TFEU? This paper proposes an analysis of the case lawof both the ECJ and the ECtHR to determine whether or not undertakings’ rights of defence and, in particular, their ability to claim legal professional privilege (LPP) is accorded the same scope andmeaning by both Courts. The analysis will start by setting out the case law of both the ECJ andECtHR and then discusses some academic commentary surrounding the issue. The author contendsthat based on the case law of the ECtHR there is an argument to be made before the EuropeanCourts for a more generous formulation of LPP in EU competition proceedings but that in light of 
Article 6(1) of the Treaty on European Union (TEU).
Article 6(3) TEU.
Article 52(3) CFREU.
recent decisions by the ECJ such an argument is unlikely to be successful. However, the author asserts that upon the accession of the EU to the Convention in accordance with Article 6(2) TEUthe EU institutions will be required by the ECtHR to recognise the rights of defence of undertakingsas including the right to claim LPP for documents prepared by in-house lawyers for the purposes of their employers rights of defence in EU competition proceedings. The author accounts for this byidentifying a subtle but significant divergence in the interpretative approaches adopted by bothCourts.
2. Legal Professional Privilege and the European Court of Justice
 Legal professional privilege was not a right that was explicitly available in the early days of EUcompetition law. This was due to the Council’s rejection of the proposals put forward in theDeringer Report
to expressly incorporate the right into Reg. 17/62. This decision did not gouncontested
and in
 National Panasonic
the ECJ announced its intention to observe the principlesset forth in the Convention when interpreting the Commission’s powers under Reg. 17/62. Thisfollowed the decision in
 Nold KG v. Commission
where the ECJ held that the rights enshrined inthe Convention formed the general principles of European law.
LPP was established in Community law as a “judicial creation”
 AM & S v. Commission.
Thecase concerned a Commission investigation into the anti-competitive practices of the applicant.During the course of the investigation the Commission required the production of certaindocuments. The applicant produced some of the documents but claimed that the remainder were protected by LPP as they were prepared by in-house lawyers and contained information relevant tothe undertaking’s rights of defence. The question for the Court was whether, and if so to whatextent, such a right existed in Community law? The Court held that communications between a
 Deringer Report 
(Doc. 104/1960 – 1961).
Written Question No. 63/78, O.J. C 188/30 (1978).
Case 136/79,
 National Panasonic (UK) Ltd. v. Commission,
[1980] E.C.R. 2033.
Case 4/73,
 Nold KG v. Commission,
[1974] E.C.R. 491.
 EU Competition Enforcement and Human Rights,
(Elgar Publishing Ltd, 2008), at 96.
Case 155/79,
 AM & S Europe Limited v Commission
, [1982] E.C.R. 1575.

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