Volume 2 - Issue 1
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Editorial: Developing Due Process in EC Competition Law
This article discusses ‘due process’ requirements in the application and enforcement of EC competition law. It proposes an analytical model whereby ‘due process’ requirements are categorized as elements of sub-systems interacting with each other. These sub-systems include international law, Community law, national laws, and aspirations of the users of the system. The article tests the application of the model by looking at the principle of ne bis in idem (double jeopardy), the privilege against self-incrimination, legal professional privilege, and the role of complainants and third parties in national proceedings. It concludes that the dynamic process of adoption and definition of standards of procedural fairness facilitates both vertical interaction between the Community legal order and the legal systems of the Member States and horizontal interaction between the legal systems of the Member States. This on-going process shifts the focus from national law requirements to the transnational dimension, which becomes the common ground for policy discussion, enforcement practice, and decision-making. This dynamism is conducive to ‘spontaneous harmonization’, a process of convergence which is more suited to the highly technical and context-specific nature of certain procedural requirements than harmonization through binding measures.
The Protection of Legal Professional Privilege in EU Law and the Impact of the Rules on the Exchange of Information within the European Competition Network on the Secrecy of Communications between Lawyer and Client: one step forward, two steps back?
This article discusses the current degree of protection afforded to legal professional privilege in the context of the framework for the enforcement of Articles 81 and 82 EC Treaty resulting from the ‘Modernisation Regulation’ No 1/2003. After examining the notion of lawyer-client confidentiality existing under both English law and the European Convention on Human Rights, it will assess the concept of privilege enshrined in Community law, according to the case law of the ECJ. Thereafter, the article will analyse the impact of Article 12 of Council Regulation No 1/2003, which allows for the exchange and use in evidence of information collected by the Commission and the National Competition Authorities on the present standards of protection of legal professional privilege. Finally, it will address the issue of whether these standards can be redefined in a manner which takes into account, on the one hand, the effective protection of privilege in the ‘decentralised’ enforcement framework established by Regulation 1/2003 and, on the other, the need for the application of binding ethical rules on legal advisers in the interest of the proper administration of justice.
This paper discusses the application by the European Commission of recidivism as an aggravating circumstance in competition law cases. It considers the largely unexplored questions of the legal basis for recidivism; the application of recidivism as an aggravating factor in the calculation of a fine and, in particular, whether the Commission should be able to treat recidivism as a perpetual aggravating circumstance without regard to the time limit that elapses between the relevant infringements. It concludes that the Commission’s current policy, which does not recognise any period of limitation for recidivism, may not respect the basic principles of proportionality and legal certainty.
• ©2003-2011 Angus MacCulloch & Andrew Matthews •