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The Increased Level of EU Antitrust Fines, Judicial Review, and the European Convention on Human Rights

32 Pages Posted: 24 Oct 2009 Last revised: 27 Nov 2013

Wouter P. J. Wils

King's College London; European Commission

Date Written: October 22, 2009

Abstract

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.

Keywords: antitrust, cartels, fines, judicial review, European Convention on Human Rights, rights of the defence

JEL Classification: K14, K21, K42, L40

Suggested Citation

Wils, Wouter P. J., The Increased Level of EU Antitrust Fines, Judicial Review, and the European Convention on Human Rights (October 22, 2009). World Competition: Law and Economics Review, Vol. 33, No. 1, March 2010. Available at SSRN: https://ssrn.com/abstract=1492736

Wouter P. J. Wils (Contact Author)

King's College London

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

European Commission ( email )

Brussels, B-1049
Belgium

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