Antitrust

The ECBA has long campaigned that there are no real procedural rights to defendants and accused persons, without access to a lawyer to advise on and assert those rights on behalf of the individual.  In order to ensure access to justice and a lawyer, there is also a need for access to free legal advice through availability of legal aid. In particular, where there are increasing mutual recognition instruments, there is generally a need for advice in both the issuing and executing states to ensure that procedural safeguards are not breached.

istock_000012023181xsmall

Measure C of the Roadmap of Procedural Safeguards introduced by the Stockholm Programme is “Legal Advice and Legal Aid”.

The ECBA is involved in advising the Commission and gathering information to assist in the drafting of this proposal. 

The ECBA is also involved in various projects related to legal aid, including the current project with Justice on legal aid in European Arrest Warrant cases.

If you are interested in a Project and/or Working Group please contact the secretariat (secretariat@ecba.org)

Working group on Antitrust

Combating cartel offences is on the European centre stage. The EU commission’s way of combating alleged cartels by draconian sanctions was subject to criticism from the very beginning. However, the pinnacle of cartel regulation was reached when Council Regulation (EC) No 1/2003 was introduced. Since then, if a company infringes Art 81 or Art 82 of the Treaty – for example by price-fixing – it can be held liable to an administrative fine that shall not exceed 10 per cent of its total turnover in the preceding business year. The commission exercises its discretion within a statutory range from nil (refraining from imposing a fine) up to any sum only capped by the 10 per cent-limit. Deterrent surcharges are made of up to 300 per cent of the base fine. Refusing to co-operate is considered an aggravating factor. Running a sanctioning policy where the precise sanction is not know in advance is deemed to be advantageous because it increases the deterrent effect. This sanctioning policy is combined with a leniency programme which is designed to trigger a race for amnesty by self-reporting, but only grants a reasonable reward to the company that comes first. The EJC is regularly upholding the commission’s decisions. The enormous scope of discretion lying with the commission is judged necessary in order to pursue the competition policy’s objectives.

This regulatory regime flies in the face of the rule of law. It seriously violates the principle of certainty, the principle of culpability, the protection against self-incrimination, and the principle of the separation of powers. For that reason alone the antitrust matter merits examination and consideration by a working group.

However, there is an additional ground to be mentioned. The United States, which imposes notoriously draconian penalties, admires this EU-cartel concept as a model of success, and there is a danger that the EU policy as to cartels may become the blueprint, masterplan or example for future projects under EU criminal law. We should be concerned to ensure that it is appreciated that the EU criminal law has clear principles and should not be used as a mere deterrent tool ignoring citizens’ rights.

The Antitrust working group is chaired by Kai Hart-Hoenig. Everybody who is dealing with antitrust matters is invited to participate. Please contact Kai Hart-Hoenig directly by email kai.hart-hoenig@hart-hoenig.com

On 6 January 2010 the European Commission published guidance aimed at providing companies with further certainty and transparency about the relationship between them and the European Commission during EU competition law (also known as antitrust) cases. Such cases involve the EU prohibitions on restrictive agreements and on abuse of dominance. The guidance does not apply to state aid cases or merger cases (apart from in relation to submission of economic evidence). Issues covered by the guidance include publicity regarding the opening and closing of competition cases as well as rejection of complaints about breaches of competition law.

The guidance comprises three documents:

European Criminal Bar Association’s (ECBA’s) statement as to the public consultation of the European Commission on the functioning of regulation 1/2003.
This document is currently only available as pdf document. Please click here to open...