Between Economic Freedom and Effective Competition Enforcement: The Impact of the Antitrust Remedies Provided by the Modernisation Regulation on Investigated Parties’ Freedom to Contract and to Enjoy Property

Abstract

This paper seeks to analyse the issues emerging from the imposition of certain antitrust remedies, such as the obligation to grant intellectual property licenses regarding key inventions covered by patent or copyright and to stipulate contracts with other firms, including competitors, as a means to remedy the consequences of antitrust infringements. It will consider the extent to which Article 7 remedies can be reconciled with other important tenets of the market economy, such as the freedom to contract and the right to peacefully enjoy one’s possessions. After briefly examining the rationale for the application of certain human rights’ guarantees to competition investigations and decisions, the first part of the paper will consider the questions of whether and to what extent the European Convention on Human Rights protects economic freedom and compare the current position with that adopted by the US Supreme Court. The second part will illustrate the notion of competition remedies and consider whether the principles governing them are compatible with current human rights standards as well as with the concept of the rule of law as a tool to protect ‘everyone’ from the arbitrary or disproportionate use of public power. The final part of the paper will argue that although antitrust remedies pursue a legitimate objective, i.e. the preservation of economic well-being through competitive markets, they must also comply with basic human rights safeguards, such as the protection of property and of freedom to contract, by striking a “fair balance” between the common good and the legitimate interests of the affected undertakings. It will be concluded that the practice in this area should conform to standards consistent with the principles enshrined in the ECHR and to the substantive concept of ‘rule of law’, i.e. accuracy, administrability, consistency, objectivity, applicability and transparency.

Keywords: Competition Law, Enforcement, Remedies, Intelelctual Property, Human Rights

JEL Classification: K21, K42, L40