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Procedural Fairness in Competition Proceedings

Procedural Fairness in Competition Proceedings

ASCOLA Competition Law series

Edited by Paul Nihoul and Tadeusz Skoczny

How substantive competition rules are enforced plays a crucial role in achieving their goals. This thoughtful book examines procedural issues that have arisen from the increased enforcement of competition law worldwide.

Chapter 7: An elusive convergence – rights of defence in competition matters in the jurisprudence of the CJEU

Krystyna Kowalik-Bańczyk

Subjects: law - academic, competition and antitrust law


The question of ‘rights of defence’ is a vast and broadly analysed subject in the EU law of competition. The pleas raising an infringement of the ‘rights of defence’ are one of the main points in almost every judicial proceeding, where the European Commission’s decisions in antitrust matters are questioned. The jurisprudence, where various forms or elements of that notion are exposed and explained, is enormous. Its definition however remains an open one, despite the efforts of the European Union’s courts to define it. Its openness stems from its character – the so-called ‘rights of defence’ constitute a general clause invoked to fight various forms of procedural unfairness towards a party to the proceedings. The aim of this chapter is threefold. The first objective is to identify broadly what falls under the notion of rights of defence in the jurisprudence of the General Court (the GC) and the Court of Justice of the European Union (the CJEU) in competition matters. Because of the scope of this chapter it concentrates on general trends in this jurisprudence and seeks to settle some categorisation, rather than provide an extensive description. The second aim is to identify where (and if) those rights of defence, as defined in the jurisprudence, are placed in the Charter of Fundamental Rights of the European Union (the Charter).

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