Rights of defence in European Commission competition proceedings
Produced in partnership with Dentons
Rights of defence in European Commission competition proceedings

The following Competition practice note Produced in partnership with Dentons provides comprehensive and up to date legal information covering:

  • Rights of defence in European Commission competition proceedings
  • Rights of defence in Commission antitrust proceedings
  • The privilege against self-incrimination
  • The right to be heard
  • The right to be assisted by legal counsel
  • The right to good administration
  • Concerns on due process in Commission antitrust proceedings
  • The Commission acting as investigator, prosecutor and adjudicator
  • The conclusion of second generation antitrust cooperation agreements
  • Shortcomings in Court of Justice proceedings with a potential impact on the rights of defence
  • More...

Undertakings involved in competition proceedings, including merger investigations, before the European Commission enjoy rights of defence which safeguard their interests. The observance of such rights by the Commission is a fundamental principle of EU law and has been further bolstered by the entry into force of the Treaty of Lisbon, as the latter makes the EU Charter of Fundamental Rights (CFR) legally binding and provides for the accession of the EU to the European Convention on Human Rights (ECHR).

Rights of defence in Commission antitrust proceedings

A number of procedural steps taken by the Commission in the course of antitrust proceedings may have a lasting adverse impact on the undertakings’ rights of defence. In view of this, Regulation 1/2003 aims at striking a balance between: (i) the effective enforcement of EU antitrust rules, and (ii) the respect of the undertakings’ rights of defence. The undertakings’ rights of defence include:

  1. the privilege against self-incrimination

  2. the right to be heard

  3. the right to be assisted by legal counsel, including the protection of communications between legal counsel and the undertaking on the basis of the legal professional privilege (LPP), and

  4. the right to good administration.

Each is analysed in further detail in the subsections that follow.

The privilege against self-incrimination

The Commission is empowered to request information to be supplied to it, as is necessary to detect an infringement of EU antitrust

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