Competition law is playing an ever increasing role within the European Union. This
is mainly due to the incredibly large fines imposed in this context. At the least, these
fines are approaching the level of criminal sanctions giving rise to drastic consequences.
The European Convention on Human Rights is applicable in particular.
The Convention casts doubt on the Commission’s competence to impose these
types of fines. In any event, the ECHR and elementary procedural principles of
criminal law—which have likewise found their way into the CFR—provide significant
protections such as the principles of ne bis in idem, nulla poena sine culpa and
in dubio pro reo. Mere presumptions can hardly be enough. Contrary to the opinion
of the ECJ in its ruling in Schenker, mistakes of law must likewise be recognised.
Similarly, substantive competition law has seen important developments. The
question of attributing actions on the part of subsidiary and affiliated companies is
especially charged as is striking a balance between autonomous commercial behaviour
and the dependence of other undertakings on access to certain platforms for
example. Rulings in the Microsoft cases provide examples of the latter in particular.
Anti-trust proceedings have been overshadowed by the conflict between protecting
applicants for leniency and the right to access documents and records (rulings in
Pfleiderer, Donau Chemie). The conflict was resolved in Directive 2014/14/EU in
favour of leniency applicants in these cases. The Directive and its requirements of
private enforcement of claims for damages have already been discussed. Important
questions of competence have been the subject matter of various rulings in the
merger control context. This field is again gaining prominence as a result of
numerous corporate mergers (e.g. Holcim).
These and other questions are integrated into a fundamental and systemic
presentation of competition law, such as its relationship to the fundamental freedoms
and the fundamental rights and services of general economic interest. The
contents of this book reflect the state of things mid-2015.