Rights of defence

Institution Definition

"Observance of the right to be heard is in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed a fundamental principle of Community law which must be respected even if the proceedings in question are administrative proceedings. Judgement of 13. 2. 1979 - Case 85/76 Hoffmann-La Roche & Co. AG

To ensure an objective outcome, the parties are given certain rights of defence. They are entitled to have access to the file – this means they can see all non-confidential documents from the Commission’s investigation. The parties may then reply to the SO in writing within a certain delay. They may also request an oral hearing, which is conducted by an independent Hearing Officer. After examining the parties’ arguments, the Commission reviews and sometimes abandons (part of) its initial objections and may decide to close the case. © European Commission

See Procedural autonomy

See also the e-Competitions special issue "Rights of Defence and Competition Law: An overview of EU and national case law"

Case Comments

Jean-Michel Vertut Abusive negotiations: The Paris Court of Appeal issue a reminder of its assessment of unfair advantages in the context of a restitution dispute and enriched it on the economic dependance notion in the light of the competition law (MPH Distribution / Achats Marchandises Casino e.a.)

Facts. SARL MPH Distribution, which wholesales agricultural products to supermarket chains, filed an action via its liquidator for the restitution of sums it considered to have been wrongly received by various Casino Group companies. At issue were the validity of sums corresponding to credit (...)

Orion Berg, Alexandre Martin Priority Question on Constitutionality: The French Supreme Court refuses to refer a Priority Question on Constitutionality and rejects the application to annul the decision of the French regulatory authority for electronic communications, postal services and press distribution ordering the incumbent operator to comply with its commitments to roll out optical fibre in less densely populated areas (Orange)

In a ruling handed down on April 21, 2023, the Conseil d’Etat upheld the decision of the Autorité de régulation des communications électroniques, des postes et de la distribution de la presse [hereinafter "ARCEP"] giving Orange formal notice to respect its commitments to roll out optical fiber (...)

European Commission The EU Commission confirms unannounced inspections of some businesses in the fashion sector over concerns that the companies concerned may have violated EU antitrust rules that prohibit cartels and restrictive business practices

Antitrust: Commission confirms unannounced inspections in the fashion sector* On 18 April 2023, the European Commission has started unannounced inspections at the premises of companies active in the fashion industry in several Member States. In parallel, the Commission has sent out formal (...)

Alain Ronzano Visits and seizures: The First President of the Paris Court of Appeal intends to regulate the "voluntary" handing over of professional e-mail files after the visit and seizure operations (Logista)

On April 5, 2023, the first president of the Paris Court of Appeal issued two orders, one, very interesting, concerning the conduct of the search and seizure operations, and the other one, more classical, concerning theauthorization of these operations. This dispute follows the order of June (...)

Mustafa Ayna, Özlem Başıböyük Coşkun, Arda Deniz Diler, Selim Turan The Turkish Constitutional Court rules a judge’s decision is necessary for conducting on-site inspections (Ford)

Introduction The Constitutional Court published a significant decision (“Decision”) which includes critical assessments on whether the on-site inspections conducted by the Turkish Competition Authority (“TCA”) violate the inviolability of domicile protected under Article 21 of the (...)

Anne Wachsmann, Nicolas Zacharie Communication from the French Competition Authority: The French Supreme Court, drawing conclusions from a decision by the Court of Jurisdictional Disputes, overturns an order by the First President of the Paris Court of Appeal in a case concerning the possibility for the French Competition Authority to issue a communication on a sanction decision for which an appeal is pending (Roche)

In decision no. 20-D-11 of September 9, 2020, the French Competition Authority [hereinafter "the Authority"] sanctioned several companies in the Novartis group and the Roche group for abusing their collective dominant position (comm. Anne Wachsmann, Concurrences n° 4-2020, p. 137). Against (...)

Jean-Michel Vertut Abusive negotiations : Paris Court of Appeal provides details on loyalty in the conduct of investigations under Article L. 450-3 of the French Commercial Code, as well as the definition of attempt to submission to significant imbalance (Min. Eco / Incaa, ITM et EMC)

Facts. Following an investigation carried out in 2016, the French Minister of the Economy, Finance and Industry served two writs of summons on Intermarché Casino Achat (INCAA) and its principals ITM Alimentaire International (Intermarché) and Casino (EMC Distribution) for abusive commercial (...)

Alain Ronzano Priority Question on Constitutionality: The French Constitutional Council holds its hearing on the constitutionality concerning the conformity with the Constitution of Article L. 464-2, I, paragraph 1, second sentence, of the Commercial Code, which provides that the Competition Authority may accept commitments but says nothing about its power to refuse them (Sony)

On January 31, 2023, the Constitutional Council held the hearing concerning the QPC n° 2022-1035 which concerns the conformity with the Constitution of article L. 464-2, I, paragraph 1, second sentence, of the French Commercial Code, which provides that the Competition Authority may accept (...)

Alain Ronzano Fines: The General Court of the European Union rejects the appeal against a decision readopted by the European Commission in one of the parts of the heat stabiliser cartel case by recalling that joint and several liability for the payment of a fine is only one manifestation of the concept of an undertaking (GEA)

On January 25, 2023, the General Court of the Union issued a judgment in case T-640/16 RENV (GEA Group AG v. European Commission). It will be recalled that in 2009, the Commission imposed fines of €173 million on ten producers of heat stabilizers for fixing prices, sharing customers, (...)

Etienne Bodéré Sanction: The General Court of the European Union dismisses the appeal of a company against a decision modifying the relationship of solidarity between it and two other co-debtors of a fine to its disadvantage and refuses to amend the amount of the fine imposed on it (GEA)

Heat stabilizers had not inspired the Commission to take precisely lukewarm decisions; the European Union General Court takes the matter further with January 25, 2023(T-640/16 RENV, GEA Group). As a reminder, in a decision dated November 11, 2009 (case COMP/38589), the European Commission (...)

Matthew Sorensen, Shannon Rose Selden, Soren Schwab, Wendy Reilly, Zachary Saltzman The US Supreme Court declines to decide the scope of attorney-client privilege over dual-purpose communications (In re Grand Jury)

Introduction In In re Grand Jury, No. 21-1397, the Supreme Court declined the opportunity to clarify the scope of protections afforded to attorney-client communications. The Court had originally granted certiorari and heard oral argument to decide the governing standard under federal law (...)

Alain Ronzano Price fixing: The Court of Justice of the European Union annuls the judgment of the General Court of the European Union while confirming the annulment of the €33.6 million fine imposed on the UK international banking group in the case concerning the pricing of euro-denominated interest rate derivatives (HSBC)

On January 12, 2023, the Court of Justice of the European Union issued its judgment in case C-883/19 (HSBC Holdings and others v. European Commission). It will be recalled that following a leniency application by Barclays Bank in 2011, the Commission imposed, in a decision issued on December (...)

Articles

Mihalis Kekelekis EC Merger Control Regulation: Rights of Defence

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of (...)

Wouter Wils Efficiency and Justice in European Antitrust Enforcement

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of (...)

Nicholas Khan EU Antitrust Procedure (ed.6), Nicholas Khan

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of (...)

Denis Waelbroeck Necessary limits to the Commission’s inspection powers

As Commission inspections area “clear interference” with the fundamental right to the inviolability of the home, they are only admissible if all guarantees are put in place to avoid arbitrary interventions. In particular, the Commission must provide evidence of “sufficiently serious indicia” (...)

Events

Stéphanie Fougou, Martin d’Halluin, Jacques Buhart, Clara Ingen-Housz, Anthony W. Mariano, Javier Ramirez Legal Privilege in the EU & the US: What’s new?

Webinar organised by Concurrences, in partnership with McDermott Will & Emery, with Jacques Buhart (Partner, McDermott Will & Emery), Martin D’Halluin (SVP, Global Competition Law & Policy Counsel, News Corp), Stéphanie Fougou (Secretary-General, Ingenico), Clara Ingen-Housz (Chief Ethics & Compliance Officer, Group Legal Counsel (Antitrust, Anticorruption, Economic sanctions), Saint-Gobain), Anthony Mariano (Trial Attorney, Washington Criminal II Section, Antitrust Division, U.S. Department of Justice) and Javier Ramírez Iglesias (Chair of Advocacy, Association of Corporate Counsel Europe).

Elizabeth Kraus, Jacques Buhart, Martin d’Halluin, Javier Ramirez Legal privilege and antitrust in the EU and the US : What’s new under the sky ?

Webinar organised by Concurrences, in partnership with McDermott Will & Emery, with Jacques Buhart (Partner, McDermott Will & Emery), Elizabeth Kraus (Deputy Director for International Antitrust, US FTC), Martin D’Halluin (Senior Vice President, Global Competition Law & Policy Counsel, News Corp), Javier Ramírez Iglesias (Chair of Advocacy, Association of Corporate Counsel Europe) and Annemarie Ter Heegde (Case Handler - Antitrust case support and policy, DG COMP).

Oliver Bethell, Harry Clarke, Martin d’Halluin, John Davies, Nigel Parr, Liza Lovdahl Gormsen Innovation Economics Conference for Antitrust Lawyers #3 App Developers: The Connect Economy

3rd Webinar of the « 4th Innovation Economics Conference » organised by Concurrences, in partnership with Ashurst and Compass Lexecon, with Oliver Bethell (Director - EMEA Competition, Google), Harry Clarke (Associate General Counsel, Spotify), John Davies (Executive Vice President, Compass Lexecon), Martin D’Halluin (Vice President, Associate General Counsel - Antitrust, News Corp), Liza Lovdahl Gormsen (Director, British Institute of International and Comparative Law) and Nigel Parr (Partner, Ashurst).

Alexey Ivanov, Cristiane Schmidt, Daniel Rubinfeld, Dennis Davis, Eleanor M. Fox, Frederic Jenny, George Paul, Gönenç Gürkaynak, Harry First, Ioannis Lianos, Joseph E. Stiglitz, Joseph Wilson, Kirti Gupta, Lawson A. W. Hunter, Nicholas Levy, Randolph Tritell, Roger Alford, Simon Roberts, Tembinkosi Bonakele, Xianlin Wang Antitrust and Developing & Emerging Economies

Annual Concurrences & NYU School of Law conference, with the support of Charles River Associates, Cleary Gottlieb, ELIG Gürkaynak Attorneys-at-Law, Qualcomm, Ropes & Gray, White & Case (Panel Sponsors) and MLex and PaRR (Media Sponsors).

Alden F. Abbott, Bryan Keating, Cecilio Madero Villarejo, Chris Longman, Elaine Ewing, George S. Cary, James J. Tierney, John D. Harkrider, Kenneth Isley, Lynda Marshall, Mark J. Gidley, Mary Strimel, Maureen Ohlhausen, Randolph Tritell, Sharis A. Pozen, Steven C. Salop, Tad Lipsky, William E. Kovacic What is Trump Antitrust? Competition Policy Under a New U.S. Administration

Annual Concurrences & George Washington University conference, with the support of Axinn, CRA, Cleary Gottlieb Steen & Hamilton, Compass Lexecon, Qualcomm, Orrick and White & Case (Panel Sponsors) and MLex (Media Sponsor).

Books

Chapters

Turkish Competition Law Chapter 11 - Public Enforcement and Procedures

Turkish Competition Law – Gönenç Gürkaynak357 Chapter 11 Public Enforcement and  Procedures Gönenç  G ürkaynak, e sq. and n az  a ltınsO y  u çar * Article  27 of Law No.  4054 regulates that the Board, as the competent body of the Authority, is entitled to (i) carry out, upon application or (...)
Grands arrêts du droit de la concurrence - Régulations 3.2 Contentieux

317 2 Contentieux 2.1 Contrôle juridictionnel CE, 29 déc. 2006, UPC France, n° 288251 Le Conseil d'État procède à un “contrôle approfondi” des décisions de l'ARCEP, y compris de la définition des marchés et des parts de marché des différents opérateurs Par un arrêt rendu le vendredi 29 (...)
Alexandre Martin, Christophe Lemaire, Denis Lescop, Emily Xueref-Poviac, Emmanuel Guillaume, Guillaume Léonard, Helene Lallemand, Jean Cattan, Jean-Paul Tran Thiet, Jean-Philippe Kovar, Joelle Adda, Julie Rondu, Laetitia Ghebali, Martine Lombard, Mélodie Lenglart, Michaël Perche, Orion Berg, Pierre-Edouard Pivois, Roman Roussel, Sébastien Martin, Simon Daboussy, Sylvain Justier, Vincent Jaunet Grands arrêts du droit de la concurrence - Régulations Chapitre 1 Principes généraux
1.1 La nature des autorités de régulation

Chapitre 1 prinCipes généraux 14 1 l a nature des autorités de régulation 1.1 r?gulation et concurrence Ce, 28 sept. 2018, eveler, n? 411454 Le Conseil d'État considère, au visa de l'article L. 341-3 du Code de l'énergie, que la fixation des tarifs des prestations annexes par la Commission de (...)
Mark J. Gidley Antitrust in Emerging and Developing Countries: Featuring Africa, Brazil, China, India, Mexico - Conference Papers 2nd Edition Part IV: International Antitrust Enforcement and Economic Development
The Emergence of Due Process following the Growth of International Antitrust Enforcement

ANTITRUST IN EMERGING AND DEVELOPING COUNTRIES | 2015 E DITION 137 The Emergence of Due Process following the Growth of International Antitrust Enforcement J. M ARK GIDLEY * mgidley@whitecase.com Partner and Chair, Global Competition Group, White & Case Former Acting Assistant Attorney (...)
Assimakis Komninos, Jacquelyn MacLennan Ian Forrester - A Scot Without Borders Liber Amicorum Vol. I Interim orders against healthcare professionals in disciplinary proceedings (in the United Kingdom)

207 Ian S. Forrester | A Scot without Borders - Liber Amicorum - Volume I Part III Human Rights Intellectual Property Other 209 Ian S. Forrester | A Scot without Borders - Liber Amicorum - Volume I Interim orders against healthcare professionals in disciplinary proceedings (in the United (...)
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