Protection of the Fundamental Rights of Companies Under the ECN+ Directive: a Milestone or a Missed Opportunity?
Creators: name: Michałek-Gervais, Marta
Publisher: name: Zenodo
Year: 2021
Subjects: ECN+ Directive
right to a defence
fundamental rights
striking a balance
protection of the companies' fundamental rights
legal professional privilege
rights of companies
the LPP
EU Member States
privilege against self-incrimination
the PASI
EU institutions
protection of the rights of companies
law investigations
proceedinghe ECN+ Directive

description: This unit was published in „International Cooperation of Competition Authorities in Europe: from Bilateral Agreements to Transgovernmental Networks” Błachucki, M., ed., (2020). The main aim of the ECN+ Directive consists in ensuring a more effective and uniform enforcement of Articles 101 and 102 TFEU by providing the national competition authorities with a minimum common toolkit and enforcement powers, as well as improving cooperation between the NCAs. This article focuses on the question that appeared somewhere on the margins of the adoption of the ECN+ Directive, namely the protection of companies’ fundamental rights in the ECN+ Directive. The text presents the background of the adoption of the ECN +Directive, the evolution of the wording of the regulation regarding the protection of fundamental rights in the course of the legislative procedure, and a brief analysis of the scope of protection eventually introduced in the ECN+ Directive. As the regulation is too laconic and fails to deal with several important issues, it is concluded that the EU institutions have actually missed an excellent opportunity to enforce and unify the protection of the rights of companies involved in competition law investigations and proceedings.
description: {"references": ["Directive (EU) No 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, published on 14 January 2019, OJ 2019 L 11, p. 3\u201333.", "MALINAUSKAITE, J. (2019) Harmonisation of EU Competition Law Enforcement. Cham: Springer, p. 187.", "Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ 2003 L1, 4.1.2003, p. 1.", "EC, Proposal for a directive to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market March, 22 2017. Brussels.", "EC (2015) Antitrust: Commission consults on boosting enforcement powers of national competition authorities, Brussels November, 4 2015. Available from: https:// ec.europa.eu/commission/presscorner/detail/en/IP_15_5998 [Accessed September, 12 2020].", "EC, Proposal for a directive to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market March, 22 2017. Brussels, p. 2", "The Commission's EC, Communication from the Commission to the European Parliament and the Council, COM(2014) 453. Ten years of antitrust enforcement under Regulation 1/2003: Achievements and future perspectives {SWD(2014) 230}_{SWD(2014) 231}. Available from: https:// ec.europa.eu/competition/antitrust/antitrust_enforcement_10_years_en.pdf [Accessed September, 12 2020]", "EC proposal for a directive of the European Parliament and of the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market COM/2017/0142 fnal - 2017/063 (COD). Available from: https://eur-lex. europa.eu/legal-content/EN/TXT/?uri=celex:52017PC0142 [Accessed: September, 12 2020].", "EC, Proposal for a Directive to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market March, 22 2017. Brussels, p. 13.", "EC, Commission staff working document, Brussels, July, 9 2014, SWD(2014) 231 fnal. Enhancing competition enforcement by the Member States' competition authorities: institutional and procedural issues accompanying the document communication from the Commission to the European Parliament and the Council. Ten years of antitrust enforcement under Regulation 1/2003: Achievements and Future Perspectives {COM(2014) 453 fnal} {SWD(2014) 230 fnal}, point 43. Available from: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52014SC0231&amp;from=EN [Accessed September, 12 2020].", "Directive (EU) No 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, published on 14 January 2019.", "BOTTA, M. (2018) The right of defence in ECN+ Directive. [Presentation at Advanced Competition Seminar of the Florence Competition Programme, ECN+ Directive. Consequences for National Competition Law Enforcement, September, 15 2018]. Available from: http://fcp.eui.eu/wp-content/ uploads/sites/7/2019/02/2_BOTTA-seminar-ECN-13.8.2017.pdf [Accessed September, 12 2020]", "KELLERBAUER, M., KLAMERT, M., TOMKIN J. (eds.) (2019) The EU Treaties and the Charter of Fundamental Rights: A Commentary. Oxford: OUP, p. 1082", "MIRCEA, V. (2018) The competition enforcement design in the EU at crossroads. [Presentation at Advanced Competition Seminar of the Florence Competition Programme, ECN+ Directive. Consequences for National Competition Law Enforcement, September, 15 2018]. Available from: http://fcp.eui.eu/wp-content/uploads/sites/7/2019/02/4_Presentation-Valentin-Mircea-FCP-15.09.2018.pdf [Accessed September, 12 2020].", "WILS, W. (2020) Fundamental Procedural Rights and Effective Enforcement of Articles 101 and 102 TFEU in the European Competition Network. World Competition, 43 (1), p. 5-34.", "WILS, W. (2003) Self-incrimination in EC Antitrust Enforcement: A Legal and Economic Analysis. World Competition, 26 (4), p. 574.", "BERNATT, M., SVETLICINII, A. (2018) The Right of Defence in the Decentralized System of EU Competition Law Enforcement. A Call for Harmonization from Central and Eastern Europe. World Competition, 41(3), pp. 309 \u2013 334; WILS, W. (2020).", "Judgment of the CJEU of September, 21 1989 in joined cases 46/87 and 227/88 Hoechst vs Commission, E.C.R. 1989, 02859, see also TURNO, B., ZAW\u0141OCKA-TURNO, A. (2012) Legal Professional Privilege and the Privilege Against Self-Incrimination in EU Competition Law after the Lisbon Treaty \u2013 Is It Time for a Substantial Change?, Yearbook of Antitrust and Regulatory Studies, 5(6), p. 195", "GARDNER, P., WARD, T. (2003) The Privilege Against Self-Incrimination: In Search of Legal Certainty. European Human Rights Law Review, 4, p. 388.", "Judgment of the ECtHR of 3 May 2001 in case JB v Switzerland, Appl. No. 31827/96, para. 64, HUDOC.", "DENKERS, M. (2018) ECN+ and the Dutch practice, A NCA perspective on ECN+. [Presentation at Advanced Competition Seminar of the Florence Competition Programme, ECN+ Directive. Consequences for National Competition Law Enforcement, September, 15 2018]. Available from: http://fcp.eui.eu/wp-content/uploads/sites/7/2019/02/5_ Denkers_180915-Florence-ECN-andthe-Dutch-practice-1.pdf [Accessed September, 12 2020].", "BERNATT, M., SVETLICINII, A. (2018); WILS, W. (2020)", "The Commission's document, Regional competition agreements: benefts and challenges - contribution from the European Commission, 29 November 2018, DAF/COMP/GF/WD(2018)6, para. 22, p. 6. Available at https://one.oecd.org/document/DAF/COMP/GF/WD(2018)6/en/pdf [Accessed September, 12 2020]", "EC (2015) Antitrust: Commission consults on boosting enforcement powers of national competition authorities, Brussels November, 4 2015. Available from: https://ec.europa.eu/commission/ presscorner/detail/en/IP_15_5998 [Accessed September, 12 2020]."]}