The Right of Defense in the Decentralized System of EU Competition Law Enforcement: A Call for Harmonization from Central and Eastern Europe

33 Pages Posted: 25 Jul 2018 Last revised: 8 Aug 2018

See all articles by Maciej Bernatt

Maciej Bernatt

University of Warsaw, Faculty of Management

Marco Botta

Max Planck Institute for Innovation and Competition; European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS)

Alexandr Svetlicinii

University of Macau - Faculty of Law

Date Written: July 1, 2018

Abstract

The article compares the application of the right of defense in competition law proceedings by seven National Competition Authorities (NCAs) of Central and Eastern Europe (CEE). In particular, the article focuses on four sub-rights that are part of the right of defense: right to be informed; right to access the file; privilege against self-incrimination (PASI) and legal professional privilege (LPP). The article shows that the NCAs selected as case studies generally provide lower procedural guarantees in comparison to DG Competition of the European Commission. The findings of the article are relevant in view of the Directive aiming at harmonizing the powers of NCAs (“ECN Directive”). The legislation aims at strengthening the investigatory tools of NCAs, while it pays limited attention to the procedural guarantees followed by NCAs. In view of the diverging application of the right of defense by the NCAs selected as case studies, the article challenges such policy choice, claiming that stronger investigative powers should be counterbalanced by a more homogenous application of the right of defense by NCAs of the EU Member States.

Keywords: Right Of Defense, Due Process, ECN Directive; National Competition Authorities, European Commission, Decentralized Application Of Arts 101-102 TFEU, Central And Eastern Europe

JEL Classification: K21, K40, L49

Suggested Citation

Bernatt, Maciej and Botta, Marco and Svetlicinii, Alexandr, The Right of Defense in the Decentralized System of EU Competition Law Enforcement: A Call for Harmonization from Central and Eastern Europe (July 1, 2018). World Competition: Law and Economics Review, Vol. 41, No. 3, 2018, Available at SSRN: https://ssrn.com/abstract=3207709 or http://dx.doi.org/10.2139/ssrn.3207709

Maciej Bernatt (Contact Author)

University of Warsaw, Faculty of Management ( email )

Warsaw
Poland

HOME PAGE: http://www.wz.uw.edu.pl/en/pracownicy/lista/maciej-bernatt/cv

Marco Botta

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS) ( email )

Villa La Fonte, via delle Fontanelle 18
50016 San Domenico di Fiesole
Florence, Florence 50014
Italy

Alexandr Svetlicinii

University of Macau - Faculty of Law ( email )

Macau

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