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.
Sign in or Register to continue reading this article
It's quick, easy and free!
It takes just 5 minutes to register. Answer a few simple questions and once completed you’ll have instant access.Register now
Why register to The Lawyer
In-depth, expert analysis into the stories behind the headlines from our leading team of journalists.
Identify the major players and business opportunities within a particular region through our series of free, special reports.
Receive your pick of The Lawyer's daily and weekly email newsletters, tailored by practice area, region and job function.
More relevant to you
To continue providing the best analysis, insight and news across the legal market we are collecting some information about who you are, what you do and where you work to improve The Lawyer and make it more relevant to you.
News from Goodman Derrick
Briefings from Goodman Derrick
The headlines in brief.
Court clarifies the purpose of a counter-notice and considers the scope of the statutory duty.
Analysis from The Lawyer
Active financial management is vital, but with firms looking more closely at the process of debt and fee collection, the personal touch still counts
The lure of the law can kick in at any stage of life. We speak to four individuals who have made a radical switch to a legal career