EU cartel enforcement and its compliance with procedural rights: how can its effectiveness be enhanced?

Summers, Scott (2015) EU cartel enforcement and its compliance with procedural rights: how can its effectiveness be enhanced? Doctoral thesis, University of East Anglia.

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Abstract

The conformity of the European Commission’s cartel enforcement policies with rights protection has become a topic of considerable importance in recent times. The wide-ranging discretion and enhanced investigatory powers that the Commission derives under Regulation 1/2003, coupled with the European Union’s proposal to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms, underlines the need for the Commission’s policies and procedures to comply with the necessary rights protection requirements. This issue is amplified in cartel cases, because when the Commission fines an undertaking, the fine aims not merely to punish the undertaking in question but also to deter other undertakings from being involved in cartels in the future.

This thesis assesses whether the Commission’s cartel enforcement policies comply with procedural rights and the ECHR. Alongside this analysis, the thesis identifies ways of enhancing the Commission’s cartel enforcement policies, whilst ensuring they remain in compliance with the relevant rights protection provisions. It does so by considering each of the Commission’s cartel enforcement policies in turn. Chapter 2 lays the foundations of the analysis by investigating why we would want undertakings to qualify for right protection and whether they do indeed qualify under the Convention. In Chapter 3, the Commission’s fining guidelines and procedures are assessed, examining the potential legal certainty and equality concerns. It finds that, whilst compliance is achieved in the broad sense, several possible enhancements could be made to the current procedure. Chapter 4 considers the Commission’s Leniency Notice; specifically, the case law of the EU courts regarding the disclosure of confidential leniency documents and the recently-enacted Damages Directive. It concludes that the drafters of the Damages Directive were correct to enact a blanket ban against disclosure because an undertaking may have a legitimate expectation of non-disclosure. However, the chapter also determines that there is a more effective means of ensuring that the rights of all the parties are adequately protected. Chapter 5 assesses the Commission’s settlement procedure and the ways it can be enhanced whilst complying with rights requirements. Although it establishes that a US-style plea bargaining procedure could be implemented within the EU – and would bring a variety of enhancements – it concludes that it would be more practical to improve the current procedure with four key additions. This would enable the vast majority of the benefits of a plea bargaining system to be realised without the need for a mass overhaul of the Commission’s procedures.

Item Type: Thesis (Doctoral)
Faculty \ School: Faculty of Social Sciences > School of Law
Depositing User: Gillian Aldus
Date Deposited: 21 Sep 2018 10:41
Last Modified: 21 Sep 2018 10:41
URI: https://ueaeprints.uea.ac.uk/id/eprint/68327
DOI:

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