Two Strings to One Bow? Article 47 of the EU Charter of Fundamental Rights in the EU Competition Case Law: Between Procedural and Substantive Fairness

Giulia Gentile

doi:10.2139/ssrn.3710508

Abstract

In recent years, the EU competition framework has been under strain because of the increasing market interconnectivity. Criticisms have raised regarding the EU competition enforcement model. In response, institutional debate and measures have focused on the enhancement of fairness in this area of EU law. Following the entry into force of the Lisbon Treaty, another source of ‘fairness’ in the enforcement of EU competition law is the EU Charter of Fundamental Rights. Article 47 of the EU Charter is the most invoked provision in the context of EU competition litigation. Considered to reaffirm the EU general principle of effective judicial protection, this article constitutionalizes the right to an effective remedy and to a fair trial. Although the existing literature has highlighted the overall influence of fundamental rights in the enforcement of competition law, the contribution of Article 47 Charter, as interpreted by the Court of Justice of the European Union, in enhancing fairness in EU competition policies remains, so far, underexplored. The current paper aims to fill this gap in the literature by offering a threefold input. First, the paper situates the discussion on fairness in EU competition law in the broader philosophical debate regarding various conception(s) of fairness. Second, the paper analyses the case law of the EU Court of Justice on Article 47 of the EU Charter in EU competition litigation. Finally, the paper discusses what kind of ‘fairness’ Article 47 strengthens in the area of EU competition law enforcement.

Highlights

Since the 1980s, the growing market interconnectivity has posed new challenges to the effective enforcement of EU competition law.[1]
The following institutions are central in the attainment of substantive and procedural fairness in the EU competition field: the Commission, which identifies violations and sanctions them; and the national and EU courts, which ensure compliance with EU law – including EU fundamental rights – in the context of infringement proceedings and judicial actions
This paper discussed the contribution of Article 47 of the EU Charter of Fundamental Rights to the enhancement of fairness in the enforcement of EU competition law

Summary

Introduction

Since the 1980s, the growing market interconnectivity has posed new challenges to the effective enforcement of EU competition law.[1]. The following institutions are central in the attainment of substantive and procedural fairness in the EU competition field: the Commission, which identifies violations and sanctions them; and the national and EU courts, which ensure compliance with EU law – including EU fundamental rights – in the context of infringement proceedings and judicial actions. We can identify six main areas in which Article 47 Charter has been applied by EU courts in the competition field:[50] (a) locus standi and access to a court; (b) the scope of the judicial review by EU courts; (c) the review of penalties by the EU judicature; (d) the excessive duration of proceedings and effective remedies; (d) statement of reasons; (e) evidence These areas will be discussed below to assess how Article 47 Charter has contributed to the enhancement of fairness in the enforcement of EU competition law. The rule remain that companies are de facto presumed guilty, at least in relation to 102 TFEU infringements.[119]

Fairness in the field of competition law under Article 47: an assessment

Conclusion