Conclusions: the future of Community 'due process' in competition cases
Conclusions: the future of Community ‘due process’ in competition cases The underlying focus of this work has been the examination of how the standards of Community ‘due process’ in competition cases can be maintained consistent with the concept of ‘administrative fairness’ elaborated in the ECHR. The consideration of the role of the Convention in the process of ‘human rights consolidation’ taking place in the EU legal system and the challenges posed by the implementation of the Modernisation plan emphasised the need to ensure a common approach to the protection of the rights of defence of the undertakings concerned by competition proceedings inspired by Article 6(1) ECHR. Accordingly, it was suggested that, until the ECHR standards become binding on the Commission and thus directly applicable to EU antitrust and merger enforcement as a result of the entry into force of the Draft Constitutional Treaty, consistency between the ‘due process’ rules governing the action of the Commission and the NCAs and those enshrined in Article 6(1) of the Convention could be attained through the medium of the ‘right to good administration’ enshrined in Article 41 of the EU Charter of Fundamental Rights. The analysis of the ‘administrative phase’ of EC competition proceedings demonstrated that whereas the right to be heard ensures an overall meaningful and effective participation of the investigated parties to the proceedings, significant issues arise with respect to their right to obtain disclosure of the evidence gathered by the Commission. Although the ECJ pointed out that access to...
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