I DIRITTI DI DIFESA NEL PROCEDIMENTO ANTITRUST DINANZI ALLA COMMISSIONE EUROPEA

This thesis is aimed at assessing, through an in-depth analysis of the case law of the Court of Justice of the European Union, the current status of the rights of defence enjoyed by companies which are parties to proceedings before the European Commission for the enforcement of Articles 101 and 102 TFEU. Against this background, this thesis purports to suggest some proposals to reform the current design of EU antitrust proceedings, with a view to improving the procedural guarantees granted to the parties and, ultimately, the legitimacy of the whole system of EU antitrust enforcement. This topic, which has been for a long time the object of a heated academic debate, is relevant for a number of reasons. First, the functioning and organization of EU antitrust proceedings, in which the European Commission acts at the same time as investigator, prosecutor and decision-maker. Second – and more recently – the fact that the Charter of Fundamental Rights of the European Union now ranks as EU primary law. As a consequence, the role of the European Convention of Human Rights within the EU legal order has become more significant. With respect to this last point (and particularly in light of Article 6 ECHR), it must also be noted that antitrust fines are now largely acknowledged as having a criminal nature. Accordingly, it is even more important to ensure the respect of the rights of defence in the context of such proceedings. In light of the above, this thesis first provides an overview of the process through which the respect of the rights of defence has been gradually established at EU level, by analyzing its different stages, the role of the case law and the impact of the relevant legislative instruments providing for the protection of fundamental rights. The second chapter of this thesis examines some preliminary and cross-cutting issues, such as the applicability of fundamental rights to legal entities, the rationale (and limits) of granting rights to the parties of antitrust proceedings, and the issue of the criminal nature of antitrust fines in light of Article 6 ECHR. The core of this research is the assessment of the current status of the rights of defence in EU antitrust proceedings, through an analysis of the case law of the EU courts (as compared with the case law of the Strasbourg Court) as well as of the relevant legislation. Accordingly, the assessment focuses on the privilege against self-incrimination, the legal professional privilege, the right to be heard and the right to access the case file. Finally, a few conclusive remarks are drawn on the compatibility between the case law of the EU courts and of the Court of Strasbourg, on the one hand, and on the current level of protection of the rights of defence in EU antitrust proceedings, on the other hand. Against this background, an assessment is carried out with respect to the possible reforms that might be enacted in the context of EU antitrust proceedings, with a view to improving the role and impact of the parties’ procedural guarantees, with a particular focus on the role of the Hearing Officer and on the oral hearing.