ECHR — its growing influence on substantive competition law
By Stephen Hornsby
To date, the impact of the European Convention on Human Rights (EHCR) on competition law has mostly been confined to procedural matters. For example, Article 6 provisions in the ECHR that recite a number of fundamental rights of defence, have often been invoked by companies that have been found guilty of competition law infringements on the grounds that these rights were ignored by the European Commission. Although these challenges have generally been unsuccessful, it is now accepted that Article 6 rights apply not only to criminal proceedings in the classic sense, but can be used by companies subjected to regulatory fines.
However, the ECHR has had some impact on substantive law as well and this may be set to increase. For example in 2010, the European Court of Justice made it clear that the principle of legal certainty (referred to in Article 49 of the Charter of Fundamental Rights and Article 7 ECHR) meant that the test for ‘margin squeezing’ (selling below retail costs by a vertically integrated dominant company) cannot be based on an assessment by the dominant company of the retail costs of a competitor (rather than its own retail costs) because the dominant company would not know its competitor’s costs and could not find them out legitimately. This finding, which the European Commission somehow reserves the right to disregard in certain cases, is a significant limiting factor in the application of Article 102 — as was confirmed very recently by the UK’s Competition Appeal Tribunal decision in the BSkyB/Ofcom case…
If you are registered and logged in to the site, click on the link below to read the rest of the Goodman Derrick briefing. If not, please register or sign in with your details below.
News from Goodman Derrick
News from The Lawyer
Briefings from Goodman Derrick
The introduction of compulsory pre-tribunal claim conciliation and forthcoming changes to the transfer of undertakings regulation
This year saw a raft of changes to employment law being introduced by the coalition government and 2014 will be no different.
In Société des Produits Nestlé SA v Cadbury UK Ltd, the Court of Appeal gave careful consideration to the application of Article 2 of the Trade Marks Directive 2008/95/EC.
Analysis from The Lawyer
You don’t have to be a big firm to innovate and thrive in a downturn, as our look at the lower half of the UK 200 shows. We pick 10 inspiring stories
Our latest in-depth analysis of UK M&A legal bills reveals a good performance by smaller firms and success fees on the rise