Chapter 6: The Modernisation of the Enforcement of Articles 81 and 82 EC Treaty and the Right to a ‘Fair Procedure’
6. The Modernisation of the enforcement of Articles 81 and 82 EC Treaty and the right to a ‘fair procedure’* INTRODUCTION Although the focus of the present work is on the right to a ‘fair procedure’ before the European Commission, the implementation of the ‘Modernisation’ plan demands an examination of the implications of the decentralised application of Articles 81 and 82 EC Treaty for the ‘due process’ rights enjoyed by the investigated firms. This chapter, after having outlined the main characteristics of the new enforcement framework, will investigate the functioning of the mechanisms of case allocation and of exchange of information within the European Competition Network (hereinafter referred to as ECN). The analysis will focus on their implications for the procedural rights of the investigated undertakings, including leniency applicants.1 Special consideration will be given to the impact of those mechanisms on the level of protection of legal professional privilege and of the privilege against self-incrimination to assess whether the assumption of ‘equivalent protection’ of the rights of the defence throughout the Community made by Regulation No 1/2003 is fully justified. Thereafter, the chapter will address the general question of which fundamental rights standards should be applied to proceedings before NCAs when Articles 81 and 82 EC Treaty are at issue, in the light of the ECJ’s Wachauf case law. In conclusion, an attempt will be made to predict the overall effect of the Modernisation Regulation on the future standards of due process in competition enforcement, especially as regards the treatment...
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