Cartel Proof, Imputation and Sanctioning in European Competition Law: Reconciling effective enforcement and adequate protection of procedural guarantees (original) (raw)

The paper assesses the interplay between ‘fundamental procedural guarantees’ and the need to ensure effective cartel enforcement’ as reflected on the rules concerning the legal proof of cartel infringements. More specifically, in view of the new provisions of the Lisbon Treaty that accords ‘Treaty value’ to the Charter and paves the Union’s accession to the ECHR, the paper first analyses the legal framework where fundamental rights operate in Europe. After identifying the rights that are pertinent in cartel proceedings, the paper attempts a novel reading of the characterisation of the legal nature of competition proceedings. Against this general background, the article embarks upon a detailed examination of the rules dealing with the legal characterisation, attribution of liability and sanctioning of cartels. It is submitted that the extensive use of presumptions is justified in view of the ‘information asymmetry’ characterising cartel infringement and no longer constitutes a risk of abuse in view of the increased probative value of evidence obtained through Leniency. Nevertheless, possible inconsistencies with regard to the ECHR standards could arise in the future with regard to the unpredictability of the sanctioning rules and the automatic way parental liability is established. Concluding, it is submitted that the current level of protection does accommodate the issues at stake as to workably reconcile effectiveness and a reasonable protection of defence rights, as well as, the risk of opportunistic use of procedural guarantees. Moreover, speculating on the future inter-play between the Luxemburg and Strasburg courts, it is proposed that the Union's enforcement system, benefiting from the Bosphorus presumption of legality and the ‘manifest deficiency’ rebuttability standard, will remain unaffected.

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