Chapter 3: Access to the Evidence in Competition Proceedings as a ‘Right of the Defence’ between Professional Secrecy and ‘Equality of Arms’
INTRODUCTION The previous chapter discussed the Community rules governing the right to be heard before the Commission in antitrust and merger proceedings and assessed them in the light of the principles enshrined in Article 6(1) of the European Convention on Human Rights applicable to proceedings before public nonjudicial authorities having a ‘civil’ or ‘criminal’ character. The analysis illustrated the function of the right to be heard for the investigated undertakings, namely to participate meaningfully in the procedure to effectively present facts, evidence and arguments in their defence. In this context, being fully acquainted with the Commission’s case via the Statement of Objections emerged as a key aspect of the investigated parties’ rights. This chapter will address another element of the rights of the defence of the undertakings affected by competition proceedings, namely the right to have access to the Commission’s file containing the evidence gathered in the course of the investigation with a view to refuting the contents of the allegations made against them in their written and oral submissions. Thereafter, the scope and the manner of exercise of this right will be examined in the light of the rules governing access to the evidence gathered by public authorities in the course of administrative proceedings relevant for the purposes of the ECHR.1 It will emerge that although the right of access to the Commission’s file is in principle solidly established, there are several areas of variance vis-à-vis the Convention standards which could give rise to concern as regards...
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