The Interplay between Human Rights and Competition Law in the EU

(This article is a summary of an article that is to be published in World Competition, Kluwer Law International.)

HUMAN RIGHTS: TRADITIONALLY DISMISSED BY THE EUROPEAN COURTS

So far, both players of the two-tier judicial system of the EUónamely the Court of First†Instance ("CFI") and the European Court of Justice ("ECJ")óhave craftily avoided†addressing human rights issues in competition law cases. Even though they repeatedly†recognised human rights as "general principles of EU law," they consistently relied upon†ad hoc procedural or formal flaws in order to avoid any in-depth assessment of human†rights defences.

Lack of success in using human rights defences in competition cases within the EU judicial†system is arguably a symptom of the inability to sue the EU itself for human rights breaches†before the ECHR. Even though each of its Members are parties to it and even though†adherence to the Strasbourg Convention is, interestingly enough, a condition to member-ship†of the EU, the EU has not itself acceded to the Strasbourg Convention. This lack of EU†commitment implies that the EU institutions are not directly liable before the ECHR in†Strasbourg. As a result, an individual is not entitled to complain to the ECHR1†about the†conduct of EU institutions and the ECJ is not bound by ECHR case-law. This also means†that an individual is not entitled to complain about the conduct of an EU Member State†when this Member State acts in the fulfilment of its EU obligations.2

A SHIFTING POLICY FOLLOWING ADOPTION OF EUROPE'S CONSTITUTION?

In the future, this practice is unlikely to be sustainable given the recent incorporation of the†Charter of Fundamental Rights of the European Union ("Charter")3†into the Draft Treaty†establishing a Constitution for Europe ("draft EU Constitution")4†and the likely accession†of the EU to the European Convention for the Protection of Human Rights and†Fundamental Freedoms of 1950 ("Strasbourg Convention").5

The incorporation of the Charter gives it a constitutional status and renders it legally binding.†This is likely to gradually alter the standard practice of the CFI and the ECJ away from†classifying the Charter's right as mere "general principles of EU law." Even though it is†still uncertain how far some of the Charter provisions create directly effective rights or how†far its principles require implementing legislation, human rights defences will likely develop†from hollow and far-off ethical standards into rounded, down-to-earth legal arguments†to be relied upon before a Court. It will be for the CFI and the ECJ to exactly delimit their†effect through their jurisprudence. However, it would be contrary to the political will of the†EU Member States if the Courts were to confine the Charter to its current position of "general†principles of EU law." Progress, to a lesser or greater extent, is likely.

The draft EU Convention contains a constitutional authorisation for the EU to accede to the†Strasbourg Convention.6†This shift in political will among the Member States towards EU†accession implies that, in practice, EU is probably on a matter of time. EU†accession will provide analogous protection to EU citizens†in Strasbourg vis-‡-vis the conduct of EU institutions and†the conduct of EU Member States in the fulfilment of their†EU obligations that they currently enjoy vis-‡-vis the con-duct†of EU Member States in the fulfilment of domestic†affairs. In addition, the probable outcome of EU accession†would be that the ECJ would not be bound by the ECHR as†a superior court but as a specialised court.7†

For the EU Constitution to come into force, all Member†States will have to ratify it. This will prompt referendums†in many of the Member†States (e.g. Ireland and†Denmark, many of the New†Member States that will join†in 2004 and perhaps France,†Portugal and Spain). Even†though it is possible and†cannot be dismissed that one†or more Member States will†refuse to ratify the EU†Constitution, this author†believes that any such concerns†would be limited to†legal formalities and that the political will to press on with†some kind of constitution will be inevitable, even with a†restricted group.

EFFECTS UPON COMPETITION LAW

The increased powers of investigation of the European†Commission under the new competition law regime†(Council Regulation (EC) No 1/20038)óapplicable as of 1†May 2004ówill probably have the effect of producing a†large number of human rights defences tackling the†European Commission's powers with respect to dawn raids,†procedural safeguards and...