The Echr Implications of the Investigation Provisions of the Draft Competition Regulation

Abstract

In September 2000 the European Commission published its long-awaited proposed replacement for Regulation 17, the Proposal for a Council Regulation on the Implementation of the Rules on Competition laid down in Articles 81 and 82 of the Treaty (hereafter the draft regulation).1 The debate on the draft regulation has focused on the abolition of the notification system, the role of the national courts, and the role of the national competition authorities (hereafter the NCAs). However, there is one significant overlooked issue, namely the extent to which the investigation provisions of the draft regulation comply with the case law of the European Court of Human Rights (hereafter ECtHR).2 Given the paucity of the ECtHR's case law in 1961 it is understandable that the implications of the European Convention of Human Rights (hereafter ECHR) for the investigative provisions of what was to become Regulation 17 were not at that time given any great consideration by the European Parliament and the Council of Ministers. However, there is now an extensive human rights case law, developed by the Strasbourg authorities which, it is argued, casts a major shadow over the Commission's existing and proposed investigative powers. It is further argued that the case law of the European Court of Justice (hereafter ECJ) and the Court of First Instance (hereafter CFI) in respect of fundamental rights as general principles of law, does not provide an equivalent standard of protection to that offered by the ECtHR.