In the context of a possible criminal antitrust enforcement regime issues relating to Article 6 of the European Convention on Human Rights (ECHR)
144 Simonsson 2011, p. 214. 145 Simonsson 2011, P. 214.
146 Wils 2005a p. 159; See also Simonsson 2011, p. 214.
147 It may be useful to mention that art. 12(3) provides that the evidence acquired can be used against natural persons only if the sending authority has sanctions of a similar kind with regard to the violations of TFEU articles 101 or 102. If this requirement is not met the evidence can still be used against a natural person if the gathering of the evidence has been conducted so that the rights of defense have been respected to the same degree as the law stands in the Member State of the receiving authority. See EU 1/2003 Regulation 2003; Also Whelan envisaged that if the European jurisdictions with criminalized regimes prove victorious, other jurisdictions may alter their viewpoints. See Whelan 2012a p. 2.
are liable to rise. Antitrust enforcement occurs in Europe both at the EU level and at the national level. Irrespective of the level where antitrust enforcement takes place Article 6 ECHR must be observed. The same appears to be true regardless of the mode of enforcement, be it administrative or criminal or whether the accused is a corporation or a natural person. However when criminal enforcement takes place or custodial sanctions are imposed the protection is more extensive. Already the criminal charges may cause considerable harm to the defendant despite an acquittal later.149
Article 6 ECHR provides the right to a fair trial. Art. 6 ECHR provides that in the determination of any criminal charge, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.150 The presumption of innocence until
proved guilty according to law is incorporated in the second paragraph.151
Finally certain minimum rights are spelled out under the third paragraph. These rights include the right to be informed promptly, in a language, which the accused understands in detail and of the nature and cause of the accusations made. Further adequate time and facilities must be available for the preparation of defence. The right to legal assistance, the right to examine witnesses and the free assistance of an interpreter if needed is set out in the provision.152
The word ‘criminal’ has an independent meaning under the European Human Rights law. Its interpretation has been liberal. Due to the liberal interpretation of the word ‘criminal’ it has previously been subject to debate whether Article 6 ECHR is also applicable to the administrative antitrust procedure initiated by the Member States or the EU. At any rate introducing the criminalization would subsequently require the observance of article 6 ECHR in antitrust proceedings. Moreover the domestic criminal law may still provide safeguards that are not equivalent to the ones under article 6 ECHR and which are applied under administrative proceedings of criminal law nature. 153
Under an administrative regime it is possible that the investigative and prosecuting authority also exercises the adjudicative function. Thus the same body will collect the evidence and employ it against the defendant, either a natural person or an undertaking and finally will decide whether an infringement has taken place. The same body would also decide which sanction to impose. Afterwards a court may merely review the lawfulness of the decision. Most EU member states operate in the aforementioned fashion
149 Whelan, 2011 pp. 217-218 150 ECHR article 6(1). 151 ECHR article 6(2). 152 ECHR article 6(3).
as does the European Commission.154 However in Finland for instance
these functions are divided between the Competition authority and the Market Court.
The European Court of Human Rights in its case law has ruled that administrative proceedings may also invoke article 6 ECHR. It does not matter whether the offence is under domestic law either disciplinary or criminal if it provides for deprivation of liberty Article 6 ECHR applies. When assessing the applicability of article 6 ECRH the domestic classification of the the act, the nature of the offence, the severity of the punishment are something that the Court will assess when making a decision on the applicability of article 6 ECHR.155
Article 6 ECHR entitles anyone who is criminally charged to have his case tried ‘by an independent and impartial tribunal.’ For example prima facie the European Commission which investigates the case, prosecutes and adjudicates does not fulfill the criteria of an ‘independent and impartial tribunal.’ Thus the European Commission cannot be deemed to be an independent tribunal in the sense of article 6 ECHR.156 Both the case law
of the European Court of Human Rights and the General Court of the EU consider this dilemma solved as the decision by the European Commission is always subject to the review by the General Court which is an ‘independent and impartial tribunal.’157 For example Wils has argued that the requirements
of article 6 ECHR are met as a result of the General Court’s review.158
However this view is not commonly accepted.159
Concerning custodial sanctions the above reasoning is not sufficient: Article 6 ECHR requires that already the first instance to tackle the matter satisfies the condition of an independent and impartial tribunal – this interpretation was confirmed by the European Court of Human Rights in the case De Cubber v. Belgium, where it was not sufficient that only the appeal level satisfies the criteria of an ‘independent and impartial tribunal’ as the matter was not classified by the domestic law as administrative or disciplinary.160 Obviously it follows that if cartels were criminalized at the
EU level the European Commission could no longer retain its adjudicatory function if it still remained the investigative and prosecutorial authority –
154 Whelan, 2011 p. 226.
155 Case of Engel and others v. the Netherlands Judgment Strasbourg 8 June 1976 paras 81, 82, 83; Whelan, 2011 p. 226
156 Roth 2006, p. 5.
157 See Case of Bryan v. the United Kingdom Judgment Strasbourg 22 November 1995 at para 40.; Albert and Le Compte v. Belgium Judgment Strasbourg 10 February 1983 para 29. ; Case T-348/94 Enso Española v. Commission of the European Communities (1998), paragraph 62.; Whelan 2011 p. 227.
158 Wils 2003a, p. 10.; Whelan, 2011 p. 227. 159 Whelan, 2011 p. 227.
160 De Cubber v. Belgium Judgment Strasbourg 26 October 1984 at para 32. ; Whelan, 2011 p. 228.
this division of functions however would not have to impair the possibilities to secure convictions.161
It can be claimed that the division of functions requires more resources as two separate bodies would need to acquire information that may be identical and thus less convictions would be secured with a specific amount of resources which would also undermine deterrence. However this line of reasoning can be weakened if one considers a system where the investigative, prosecutorial and adjudicative functions are under one authority but in addition a review by a tribunal is often made use of – thus there is already inherently another unit that does the investigation, which renders duplicate costs inevitable.162
The division of functions could also greatly improve the procedure by cutting its length and ease the access to documents.163 The division would
also prevent a ‘prosecutorial bias’ from taking place. Wils has identified three different kinds of prosecutorial biases related to the human psychology.
By Confirmation bias Wils refers to the inclination of people to try to support rather than to call into question something that one has believed to be true. Also the European Commission could be influenced by such a bias: under articles 101 and 102 TFEU the investigations are launched only after the officials believe that the antitrust rules have been infringed, which definitely creates a fertile ground for such a bias.164
The hindsight bias refers to a situation where one thinks that after certain outcomes have taken place that they could have been predicted while underestimating the possibility that an alternative sequence of events could have taken place. Thus in the European Commission or in the DG Competition where the resources for enforcement are not abundant and the resources should be wisely allocated the people involved in enforcement are motivated to justify their decisions. However obviously miscalculations happen and at the stage of the second phase investigation or upon sending the statement of objections it could appear that no antitrust infringement had actually taken place or only a minor one. This could lead to the hindsight bias where the officials would view the initial choice to launch the second phase investigation as erroneous. The Commission officials may then experience the so called cognitive dissonance if the initial choice was erroneous as it would not be in accordance with their trust in themselves. As an experience the cognitive dissonance is not comfortable and therefore people generally seek to circumvent knowledge that could induce such a mental state. It follows that the Commission officials who initially decided to launch the second phase investigation may be unmotivated to divert the
161 Whelan, 2011 p. 228.
162 Wils 2003a, p. 23; Whelan, 2011 p. 228; See however Reindl 2006, p. 122. 163 Whelan, 2011 p. 228.
course of action and decide that no prohibition decision should be made after all. Besides the internal motivation to refrain from such a decision it could also be attributed to a desire to show for instance someone higher in rank who may be influenced by the hindsight bias that the initial decision was not erroneous.165
The third prosecutorial bias is what could be called the desire to keep up appearances. In other words the officials working at the European Commission naturally wish show the world that they are up to their task by having for example a certain number of cartels detected and fines being imposed. These numbers are made public in the form of statistics. However the outside observers cannot easily conclude whether the infringements were justly punished, they can most likely only admire or criticize the number of decisions. This could incentivize abuse on part of the Commission officials in order to keep up appearances.166
To sum it up, it can thus be argued that it would be actually commendable that a division of functions would take place at the EU level. This would improve the chances of errorless adjudication by the European Commission. The argument to oppose a criminalization at the European level could be the added costs that a required division of functions would cause. However the above reasoning goes to show that also notable benefits could ensue which might outweigh the counterarguments.