The Increased Level of EU Antitrust Fines, Judicial Review, and the European Convention on Human Rights
Wouter P. J. Wils
King's College London - School of Law; European Commission
October 22, 2009
World Competition: Law and Economics Review, Vol. 33, No. 1, March 2010
Some lawyers and businesses have claimed that, because of an increase in the level of antitrust fines imposed by the European Commission in recent years, these fines have become criminal in nature, and that the current institutional and procedural framework in which fines are imposed by the European Commission, with subsequent judicial review by the EU Courts, is no longer compatible with the European Convention on Human Rights. This paper critically examines those claims. The main point to be retained is that the case-law of the European Court of Human Rights distinguishes between, on the one hand, the hard core of criminal law, and, on the other hand, cases which are "criminal" within the autonomous meaning of the European Convention on Human Rights but which do not belong to the hard core of criminal law. Irrespective of any increase in their level, the antitrust fines imposed by the European Commission only belong to the second, broader category of criminal penalties, and the European Court of Human Rights has consistently held that it is compatible with the European Convention on Human Rights for such penalties to be imposed, in the first instance, by an administrative or non-judicial body such as the European Commission.
Number of Pages in PDF File: 32
Keywords: antitrust, cartels, fines, judicial review, European Convention on Human Rights, rights of the defence
JEL Classification: K14, K21, K42, L40Accepted Paper Series
Date posted: October 24, 2009 ; Last revised: November 19, 2009
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