Titre

Right to defence in the competition law enforcement. Comparative analysis in the light of the jurisprudence of the European Court of Human Rights and the Court of Justice of the European Union.

Auteur Marta Michalek
Directeur /trice Prof. Walter Stoffel
Co-directeur(s) /trice(s)
Résumé de la thèse The thesis deals with the complexed question of the right to defence in the competition law enforcement. This issue will be analyzed in the light of the jurisprudence of the European Court of Human Rights and the Court of Justice of the European Union2 and their relations in between. The question of protection of the right to defence is of first importance in several legal proceedings. Indeed, also in the field of competition law one can notice increasingly frequent references by the parties-undertakings to this fundamental right. It will be shown that the right to defence comprises various fundamental and mostly procedural rights and principles like right to a fair trial, right to be heard, privilege against self-incrimination, nulla poena sine lege, presumption of innocence, legal professional privilege, right to access to the case file etc. These elements all together create a system of protection of undertakings facing the competition law proceedings conducted against them. The concern for the right to defence appears in particular in the field of the repressive competition law, the part dealing with anticompetitive agreements and abuse of the dominant position, where the investigations powers of competition authorities, that exercises the double role of "prosecutor" and "judge", are the most extensive, far-going and, thus, raise the serious doubts in relation to their conformity with the undertakings' fundamental rights. Consequently, there has been an increasing conflict between the effective competition enforcement and the protection of those rights. The relevance of the protection of the right to defence in competition law proceedings is not only a hypothetical issue since failing to meet the obligation to respect these rights by a competition authority can lead to the annulment of its decision. On the EU level it may cause as well financial consequences, i.e. the EU may be obliged to pay damages to the undertakings whose fundamental rights have been violated. Therefore, the aim of the thesis is to provide a complete guide on how exactly and to what extent undertakings can exercise their right to defence in the competition law proceedings.
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