The ECHR has dealt with over one million individual applications since it was established in 1950. (In force since 1953.) Very few of these applications were made by legal persons and most of them have concerned other rights than those normally associated with competition law, i.e. Article 6 (right to a fair trial), Article 13 (right to an effective remedy), as well as Article 1 of the 1st Protocol (protection of property). This is not surprising, considering the ECHR’s origins in the will to prevent for the future such atrocities as occurred before and during World War II – i.e. mainly the rights covered by Articles 2 (right to life), 3 (prohibition of torture), 4 (prohibition of slavery and forced labour), and 5 (right to liberty and security) – and the totalitarian regimes associated with them. These origins are manifested in the 1948 Universal Declaration of Human Rights, the principles of which the ECHR implements regionally in Europe.
Although most applications under the ECHR pertain to physical persons, it is nevertheless worth noting that the applicants in several cases of jurisprudential significance are companies or shareholders of companies, that no doubt have had reason to consider not only their own compliance with relevant regulation, but also the compliance of the relevant State and its authorities with international obligations, including the ECHR. In Dubus S.A. v. France (5242/04), the applicant was an investment company that was investigated and later disciplinary sanctioned by the French Banking Commission.
The fact that ECHR is applicable also for issues related to the coercive powers of public authority pertaining to competition law, is demonstrated through several instances of the Court’s caselaw. The ratione materiae relevant to competition law is likely to be linked to national sanctions procedures under competition regulations. The Court has viewed procedures, regardless of how they are categorized under national law, whereby public authorities exercise coercion vis-à-vis individuals (physical or legal) as falling under the first paragraph of Article 6. The right to the peaceful enjoyment of private property, Article 1 of the 1st Protocol, could also be of relevance here.
The ECHR operates through subsidiarity, in that it allocates the main responsibility for enforcing the obligations arising from the Convention clearly with its States Parties themselves – it regards the Court as a court of last resort. Only when the States Parties have failed to implement the obligations does the ECHR system and its Court intervene in the process. Subsidiarity presents a procedural aspect, requiring individuals to exhaust domestic remedies before seizing the Court, and a substantive aspect, namely the presumption that States are generally in a better position to assess the necessity and proportionality of acts that may have interfered with specific rights. The execution under the ECHR system portrays a trilateral relationship between the Court, the Council of Europe Committee of Ministers (CM) and national authorities, where execution measures are detailed in the judgment first and the supervision of the execution measures by the national authorities is subsequently carried out by CM.
The text of the Convention has been amended and supplemented over the seven decades of its existence, through 16 different protocols. Throughout this time, the Court has developed the processes and interpretative methods for establishing the standards emerging from the Convention in ways that reflect the societal developments in the States Parties over time. In establishing its living instrument doctrine, the Court stated that the ECHR “must be interpreted in the light of present-day conditions.” (Tyrer v. United Kingdom (5856/72) § 31.) Another important concept applied in jurisprudence is European consensus, which refers to the degree of uniformity in the legal frameworks of the States Parties on a specific issue. The Court engages this concept to justify a wide margin of appreciation – another central principle in ECHR jurisprudence – given to States Parties, in the absence of a consensus, and to justify the development of new standards where there is an emerging consensus among States Parties.
As more than half of the States Parties to the ECHR are also EU Member States, the relationship between the two sets of treaty obligations is of paramount importance for several areas of law, including competition law. Significant for this relationship is the jurisprudence evolving from the judgment in Bosphorus v. Ireland, (45036/98) where the Court established that ECHR States Parties that also have membership obligations to the EU (or another international organisation) are fully liable under ECHR for “acts and omissions of its organs regardless of whether the act or omission in question was a consequence” of the obligations stemming from, in this case, EU membership. (§ 153) While reiterating full ECHR liability, the Court also stressed the “need to secure the proper functioning of international organisations” (§ 150) and it is the consequence of these two statements (cf. §§ 155 – 156) that has since been referred to as the Bosphorus presumption, an assumption of compliance, when reviewing the way obligations under e.g. EU law, that somehow approaches the rights under ECHR, have been implemented. As with assumptions in general, it remains in place throughout the review, and if nothing in the review suggests otherwise, it will be assumed throughout.
The Court applies a similar approach to the relationship between obligations of States Parties to the ECHR, and their obligations stemming from the UN Charter. In Al-Jedda v. the United Kingdom [GC] (27021/08) the Court established the presumption that the United Nations Security Council (UNSC), acting under the UN Charter, would not impose any obligations on UN member states in breach of fundamental principles of human rights. (§ 102) In subsequent cases applying this presumption, the Court has found no normative conflict between UNSC resolutions and the ECHR, while finding a violation of ECHR with the manner in which a State Party was implementing the UNSC measures. (See e.g. Nada v. Switzerland [GC] (10593/08), and Al-Dulimi and Montana Management Inc. v. Switzerland [GC] (5809/08).)
