EU Competition Enforcement and Human Rights
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EU Competition Enforcement and Human Rights

Arianna Andreangeli

This book discusses the procedural rights enjoyed by those being investigated under Articles 81 and 82 of the EC Treaty and of the Merger Control Regulation, and their right to challenge the Commission’s decision in the Community Courts. It further assesses how their rights to ‘due process’ in competition proceedings before the European Commission comply with the notion of ‘administrative fairness’ enshrined in the European Convention on Human Rights, in accordance with the case law of the European Court of Human Rights.
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Chapter 4: Protection Against Forced Disclosure of ‘Sensitive Evidence’: The Legal Professional Privilege and the Privilege Against Self-incrimination in EC Competition Investigations and Procedure

Arianna Andreangeli

Extract

4. Protection against forced disclosure of ‘sensitive evidence’: the legal professional privilege and the privilege against self-incrimination in EC competition investigations and procedure INTRODUCTION The previous chapter examined the extent to which EC law confers on the undertakings being investigated by the Commission for suspected breaches of competition law the right to have access to the evidence gathered in the course of the investigations, and assessed it in the light of the principles enshrined in Article 6(1) ECHR and applicable to administrative procedures having a ‘civil’ or ‘criminal’ nature. In the course of the examination, it emerged that although this right is inspired by the principle of ‘equality of arms’, it may be limited in order to safeguard the legitimate interests of third parties or of the investigated parties themselves to the protection of their ‘commercially sensitive’ information. The demands of fairness of the Commission proceedings may also require that information be protected against forced disclosure to the competition officials in other circumstances: such is the case with communications between the investigated undertakings and their legal advisers and with information which may be incriminating. This chapter will examine the extent to which, respectively, EC law and the European Convention on Human Rights protect the confidentiality of lawyer–client correspondence and the privilege against self-incrimination. Thereafter, it will assess whether the Community legal standards comply with the Convention requirements as regards these two safeguards. 92 Protection against forced disclosure of ‘sensitive evidence’ 93 1. 1.1. THE CONFIDENTIAL TREATMENT OF LAWYER...

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