the-echr-implications-of-the-investigation-provisions-of-the-draft-competition-regulation

THE ECHR IMPLICATIONS OF THE INVESTIGATION PROVISIONS
OF THE DRAFT COMPETITION REGULATION
ALAN RILEY*
I. INTRODUCTION
In September 2000 the European Commission published its long-awaited

proposed replacement for Regulation 17, the Proposal for a Council
Regulation on the Implementation of the Rules on Competition laid down in
Articles 81 and 82 of the Treaty (hereafter the draft regulation).1 The debate
on the draft regulation has focused on the abolition of the notification system,
the role of the national courts, and the role of the national competition author-
ities (hereafter the NCAs). However, there is one significant overlooked issue,
namely the extent to which the investigation provisions of the draft regulation
comply with the case law of the European Court of Human Rights (hereafter
ECtHR).2 Given the paucity of the ECtHR’s case law in 1961 it is under-
standable that the implications of the European Convention of Human Rights
(hereafter ECHR) for the investigative provisions of what was to become
Regulation 17 were not at that time given any great consideration by the
European Parliament and the Council of Ministers. However, there is now an
extensive human rights case law, developed by the Strasbourg authorities
which, it is argued, casts a major shadow over the Commission’s existing and
proposed investigative powers. It is further argued that the case law of the
European Court of Justice (hereafter ECJ) and the Court of First Instance
(hereafter CFI) in respect of fundamental rights as general principles of law,
does not provide an equivalent standard of protection to that offered by the
ECtHR. Furthermore, this difference in rights protection cannot be ignored by
the Community institutions. Notably, the international conflict provision
contained in Article 307 of the EC Treaty provides defendant undertakings
with the means to trump the investigative provisions of Regulation 17 and the
proposed new investigative powers of the draft regulation with the interna-
tional obligations of the Member States set out in the Convention. Finally, it
is submitted that the Commission can obtain sufficient powers to police the
competition rules effectively without infringing the ECHR, and that the draft
regulation should therefore be amended.
* Butterworths Tolley Research Fellow Centre for Legal Research, Nottingham Law School.
The author would like to thank Ms Kristina Nordlander for her observations on the original text
of this paper. All errors and ommissions are solely the responsibility of the author.
1 COM (2000) 582 Final, 27 Sept 2000.
2 The alternative word ‘Convention’ is also used in this paper to refer to the ECHR.
[ICLQ vol 51, January 2002 pp 55–89]
https://doi.org/10.1093/iclq/51.1.55 Published online by Cambridge University Press

56 International and Comparative Law Quarterly
Section II of this paper outlines the investigative powers of the draft regula-
tion, while Section III considers the standard of fundamental rights protection
offered by the Community legal order in respect of the Commission’s power
to obtain information and its power of inspection. Section IV examines the
ECHR implications of the draft regulation, and section V explains why the
Community institutions cannot ignore the Convention case law without threat-
ening to undermine the legitimacy and effectiveness of the Commission’s
powers in this field. Part six offers an alternative approach to the
Commission’s powers of investigation which would ensure that its powers of
supervision and enforcement were enhanced, but which also make sure that
such powers complied with the Convention.
II. THE POWERS OF INVESTIGATION CONTAINED IN THE DRAFT REGULATION
The draft regulation builds upon the powers already granted to the
Commission under Regulation 17. In the draft regulation the Commission
retains both the power to obtain information and the power to make unan-
nounced inspections by decision. In addition, it sets out a number of signifi-
cant enhancements to both powers.
Article 18 provides the Commission with its most important power to
obtain information from undertakings.3 The powers and procedures of Article
18 are closely modelled on those of Article 11 of Regulation 17. As with
Article 11, Article 18 imposes a two stage procedure on the Commission. It
must first make a request to an undertaking4 to supply information, stating the
legal base of the request, the time limit within which the information is to be
provided, the purpose of the request, and the penalties for supplying incorrect,
incomplete, or misleading information.5 Where an undertaking fails to supply
the information within the time limit or, supplies incomplete information, the
Commission can adopt a decision requiring the information to be supplied on
pain of fixed or periodic penalties under Articles 22 and 23 respectively. The
decision specifies what information is required, fixes a time-limit within
which the information is to be supplied, specifies the penalties for non-compli-
ance, and indicates the right to have the decision reviewed by the Court of
Justice.6 The only significant revision that Article 18 makes to the power to
obtain information is found in paragraph three. In that paragraph lawyers are
permitted to supply the information requested in place of the owners or offi-
3 Art 18(1) also provides that requests for all necessary information may also be made to the
governments and competition authorities of the Member States. However, the obligation to supply
information contained in Art 18(3), and the power to adopt a decision requiring that information
be so supplied on pain of financial penalties, only applies to undertakings and associations of
undertakings.
4 For the purposes of this paper ‘undertaking’ is deemed to include an association of under-
takings, except where the contrary is indicated. 5 Art 18(2).
6 Art 18(4). In fact an application for annulment of an Art 18 decision will be heard by the
CFI. See Art 3(c) of Council Decision 88/591 ECSC, EEC, Euratom, OJ 1989 L317/48.

Draft Competition Regulation 57
cers of the undertaking. However, the latter do remain fully responsible if the
information supplied is incorrect or misleading.
The most significant addition to the power of the Commission to obtain infor-
mation contained in the draft regulation is found in Article 19. It provides that:
In order to carry out the duties assigned to it by this Regulation, the Commission
may interview any natural or legal person that may be in possession of useful
information, in order to ask questions relating to the subject-matter of an inves-
tigation and recording the answers.7
The power is not limited to representatives of suspect undertakings. It

could, for example, be used to interview and record the evidence of the repre-
sentatives of victim undertakings. At first sight it would appear that the powers
contained in Article 19 can only be exercised in respect of undertakings who
are likely to agree to be interviewed, such as victims of anti-competitive prac-
tices. This is because, curiously, the draft regulation provides no power of
decision and no sanction power to underpin such decisions, by comparison
with both Articles 18 and 20. By contrast the proposals set out in the White
Paper Modernisation of the Rules Implementing Articles 85 and 86 of the EC
Treaty (hereafter the 1999 Modernisation White Paper), which preceded the
draft regulation, did provide for a power to ask questions backed by financial
sanctions.8 It is difficult to see how the Commission can realistically expect
representatives of suspect undertakings to attend interviews unless they are
required to attend on pain of significant financial penalties being imposed. It
may be, therefore, that the lack of a fining power is an oversight. However, the
absence of any power of decision in Article 19 suggests that the lack of any
fining power is deliberate. It is possible to conceive that the Commission’s
draftspersons might have forgotten to include a reference to financial sanc-
tions in Article 19. It is very unlikely that they also forgot to include a power
of decision requiring specified persons to attend an interview, indicating a
time limit and the subject of the proposed interview, all of which would
presumably be necessary before any fine could be imposed.9 If that latter view
is correct then Article 19 is of extremely limited utility to the Commission.10
7 The author has not made a mistake. The quotation is accurate. Unfortunately, the English
version of the draft regulation, in respect of Art 19, is grammatically incorrect. Preferably the
entire Article should be rewritten both to correct the grammar and improve the clarity of the text.
8 The European Commission, Brussels, April 1999, Commission Programme no 99/027.
9 For example, without a time limit the Commission would not be able to impose a fine, as it
would have to give a time within which the obligation would have to be performed.
10 It could be argued that the reason why Art 19 does not grant the Commission a power of
compulsion, as envisaged in the Modernisation White Paper, is that in putting together the draft
regulation the Commission has taken account of the judgment of the ECtHR in Saunders v United
Kingdom [1996] 16 EHRR 297. Saunders suggests that the imposition of penalties as a result of
a refusal to answer questions can constitute a violation of Art 6 of the ECHR. The case is
discussed in detail in part 4. However, it is difficult to see how the Commission’s draftspersons
could have taken account of Saunders in relation to Art 19, when Art 18 raises includes a power
of compulsion, which, as it is argued below, itself infringes Art 6 of the ECHR and the rule in
Saunders.

The most significant development to all of the Commission’s powers of
investigation in the draft regulation is contained in Article 20. Virtually all the
features of the Commission’s power of inspection, as set out in Article 14 of
Regulation 17, are reproduced in Article 20. The Commission is again
provided with broad powers to make all necessary investigations into under-
takings.11 Officials are empowered to examine the books and other business
records, irrespective of the medium in which they are stored,12 to take copies
of or extracts from the documents examined;13 and to enter premises, land, and
means of transport of undertakings.14 Article 20 also provides for an almost
identical procedure to that found in Article 14. Hence the Commission has a
choice between exercising its powers by means of a written authorisation15 or
by decision.16 In both cases the subject-matter and purpose of the inspection
must be specified, together with the penalties for providing incomplete
answers. In the case of an inspection by decision the additional penalties for
refusal to comply with the decision must be specified along with the right of
the undertaking to have the decision reviewed by the Court of Justice.17
There are three principal additional powers of which the first two are
entirely new. First, in Article 20(2)(b) the Commission obtains the power to
enter any other premises, including the homes of directors, managers and other
members of staff of the undertaking concerned, in so far as it may be suspected
that business records are being kept there. Secondly, in Article 20(2)(e)
Commission officials may seal any premises or business records during the
inspection. Thirdly, in Article 20(2)(f) its power to ask questions during
inspections is extended. Under Article 14(1)(c) of Regulation 17 it could only
ask for oral explanations on the spot. It was unclear whether the Commission
could only ask questions relating to the documents being examined, for exam-
ple, for assistance in understanding technical details or abbreviations, or
whether a much wider class of questions could be asked.18 The new provision
resolves the confusion by clearly imposing an obligation on undertakings to
answer a broad range of questions on the subject matter of the investigation.
Under the draft regulation the Commission will now have the power:
to ask any representative or member of staff of the undertaking or association of
undertakings for information relating to the subject-matter and purpose of the
inspection and to record the answers.
Article 14(6) of Regulation 17 and Article 20(6) both provide for the Member
11 Art 20(1).
12 Art 20(2)(c). It should be noted that the phrase ‘irrespective of the medium in which they
are stored’ is a gloss added by the draft regulation to take account of the modern ability to store
and transmit data electronically, and, not found in Art 14 of Regulation 17.
13 Art 20(2)(d). 14 Art 20(2)(a).
15 Art 20(3). 16 Art 20(4).
17 As with Art 18, the application for annulment of the decision would in fact be brought before
the CFI.
18 Kerse, EC Antitrust Procedure, 4th edn (Sweet & Maxwell, 1998) para 3.34.

State authorities to assist the Commission when an undertaking opposes an
inspection. However, the latter Article goes on to oblige the Member States to
request, where appropriate, the assistance of the police in order to enable the
Commission to conduct its inspection.
Article 20(6), (7) and (8) also set out the scope for judicial authorisation of
Commission Article 20(4) decisions. There are three main features. First,
Article 20(6) provides that, if national law requires authorisation from the
judicial authority before the assistance of the police can be called upon, such
authorisation may be applied for as a precautionary measure. The 1999
Modernisation White Paper set out two proposals for judicial authorisation.
The first provided for prior authorisation by the CFI, the second for authori-
sation by the national courts.19 Article 20(6), by contrast, provides for no form
of automatic prior judicial authorisation. Instead it merely sets out an option
for a Member State whose national law requires that judicial authorisation be
obtained prior to an inspection. Presumably, where national law requires no
judicial authorisation, the Member State can proceed directly to assist the
Commission by forcing entry to the undertaking’s premises.20 Secondly,
Article 20(7) requires that judicial authorisation is obtained before an Article
20(4) inspection is to take place where the inspection is to be carried on
domestic premises. Thirdly, Article 20(8) sets out the terms under which
national courts can supervise the enforcement of the inspection decision. It is
emphasised that the power of review extends only to establishing that the
Commission decision is authentic, and that the envisaged enforcement
measures are neither arbitrary nor excessive. It goes on to provide that the
national court may not review the necessity for the inspection or require
further information other than that set out in the Commission decision. Article
20(8) expressly provides that the lawfulness of the decision rests solely in the
hands of the ECJ. Essentially, the draft regulation is drawing directly upon the
judgment of the Court of Justice in Hoechst v Commission, where it set out the
scope of the power of review of the national courts over Commission inspec-
tion decisions. The Hoechst judgment is discussed extensively in part three.21
Articles 22 and 23 underpin the power to obtain information and the power
of inspection by granting the Commission the power to impose fines and peri-
odic penalty payments for providing incomplete, incorrect or misleading
19 1999 Modernisation White Paper, op cit, para 111.

20 No judicial authorisation is required in the Netherlands, Sweden, Finland, Italy, and Austria,
prior to national enforcement of an Art 20(4) decision. 1999 Modernisation White Paper, op cit,
para 110, n 64.
21 Case 46/87 and 227/88 [1989] ECR 2859. The draft regulation, however, does not provide
uniform Community standards when National Competition Authorities acting on their own initia-
tive seek to obtain information by inspection of premises for themselves, or in respect of other
NCAs. Art 21(1) expressly leaves the power of inspection as a matter of national law when one
NCA is acting for another NCA. No direct reference is made to own initiative inspections by
NCAs. However, the lack of any reference in the draft regulation infers that such inspections are
also to be left to be governed by national law.

information, or for refusal to submit to a decision. Such fines are also a feature
of Regulation 17. However, inflation has eroded the value of these fines.
Currently Article 15(1) of Regulation 17 permits the Commission to levy a
fine of between ʗ=100 and ʗ=5000 where an undertaking intentionally or negli-
gently supplies incorrect or misleading information in response to a request
made pursuant to an Article 11(3) request for information, an Article 11(5)
decision or in respect of an Article 14(3) decision.
Equally, Article 16(1) permits the Commission to impose periodic penalty
payments in respect of such behaviour as well as refusal to submit to an Article
11(5) decision requiring the production of information or Article 14(3) inspec-
tion decision. The periodic payments were set at between ʗ=50 and ʗ=1000. The
draft regulation has restored the effectiveness of the Commission’s fining power
and protected it against inflation by providing that the fixed penalty shall be set
at up to 1 per cent of annual turnover of the undertaking concerned in the preced-
ing business year.22 The periodic penalty payment is fixed at a maximum of 5
per cent of the average daily turnover of the undertaking concerned.23
The draft regulation does not just tidy up the investigation powers of
Regulation 17. For example, Article 19, despite its lack of any sanction power
is a significant development of the scope of the Commission’s power to obtain
information. Of even greater importance is Article 20(2)(b) giving the
Commission power to enter private premises. Clearly this power will assist the
Commission in blocking undertakings sidestepping an inspection by holding
incriminating company documents on private premises.24 It is also clear that
Article 20(2)(f) will permit the Commission to ask a much wider range of
questions than hitherto, without the threat of challenge from the undertakings’
legal representatives arguing that the power to ask questions is strictly limited.
One outcome which is not immediately obvious, however, is the impact of
the restoration of the Commission’s fining powers. There are two aspects to
this issue. First, the restoration of the fining power may encourage the
Commission to make more use of Article 18(4) decisions requesting informa-
tion. Where the Commission knows the information exists it may save
manpower, as issuing a decision requires fewer resources than sending an
inspection team to the premises. Secondly, in respect of periodic penalty fines
the Commission can impose more than one obligation on an undertaking and
then attach a periodic penalty fine to each obligation. For example, in
Commercial Solvents v Commission the Commission imposed two obligations
on Commercial Solvents and its subsidiaries, first to resupply the alleged
victim of the supposed abusive practices, and secondly to submit within two
months proposals for continued supplies to the alleged victim.25 In each case
22 Art 22. 23 Art 23.

24 In the Explanatory Memorandum to the draft regulation the Commission explains that in
recent cases it has come across evidence that incriminating documents have been held on the
private premises of company officials, Draft Regulation, op cit, 25.
25 Cases 6 and 7/73 [1974] ECR 1281.

the Commission imposed a periodic penalty payment of ʗ=1000 per day. The
ECJ upheld this practice, albeit sub silentio.26 Given that the draft regulation
will permit the Commission to impose a fine of up to 5 per cent of average
daily turnover, undertakings could face the prospect of several obligations
each involving a fine of up to 5 per cent of average daily turnover. However,
it may be that if the Commission sought to impose such significant burdens on
undertakings, the ECJ would reconsider the case law. The willingness of the
Court to accept that each obligation attracted a periodic penalty fine in 1974
may not have been unconnected with the fact that the fines, even at that point
in time, were extremely low.
III. FUNDAMENTAL RIGHTS PROTECTION FOR UNDERTAKINGS WITHIN THE

COMMUNITY LEGAL ORDER
It is true that until the coming into force of the Maastricht Treaty in November
1993 fundamental rights were not recognised in the various Community
Treaties.27 However, from the early 1960s the Court of Justice began to
develop a fundamental rights jurisprudence as part of the general principles of
Community law. In Opinion 2/94 28 and Kremzow v Austria 29 the Court re-
stated its fundamental rights case law that such rights form an integral part of
the general principles of Community law. The Court explained that, in order
to ensure that fundamental rights are adhered to within the Community legal
order, it relied upon constitutional traditions of the Member States and the
guidelines supplied by international treaties and conventions on the protection
of human rights on which the Member States have collaborated or to which
they are signatories. In particular, the Court noted that the ECHR has a special
significance as a source of guidance.30
As early as 1980 undertakings sought to use the ECtHR’s fundamental
rights jurisprudence to challenge the Commission’s powers of investigation.
In National Panasonic, Article 14(3) of Regulation 17, the Commission’s
power of inspection, was challenged on grounds that it infringed the under-
26 For a further discussion see Kerse, op cit, para 7.46. As he notes, Commercial Solvents is
‘an old but instructive case’.
27 Alston and Weiler, ‘An Ever Closer Union in Need of a Human Rights Policy: The
European Union and Human Rights’, 9 in Alston (ed), The EU and Human Rights (Oxford: OUP,
1999).
28 [1996] ECR I-1759.
29 C-299/95 [1997] ECR I-2629.
30 Opinion 2/94 op cit, para 33, Kremzow, ibid, para 14. Art 6(2) of the Treaty on European
Union also provides that ‘the Union shall respect fundamental rights, as guaranteed by the
European Convention for the Protection of Human Rights and Fundamental Freedoms signed in
Rome on 4 Nov 1950 and as they result from the constitutional traditions common to the Member
States, as general principles of Community law.’ However, as the last clause of the sentence that
makes up the art indicates, Art 6(2) re-states the position in respect of fundamental rights as devel-
oped by the Court of Justice. Clearly this re-statement will have implications for the operation of
the other pillars of the Union, but it is difficult to see how it adds to the protection already
provided by the ECJ’s case law.

takings fundamental rights, and in particular Article 8 of the ECHR.31 In that
case the ECJ rejected the argument raised by the undertaking, holding instead
that, so long as the Commission complied with the terms of Article 14(3),
there was no infringement of Article 8.32
Since 1980 undertakings have regularly raised fundamental rights, and
more specifically ECHR arguments, to challenge Commission powers of
investigation.33 In two cases, Orkem v Commission34 and Hoechst v
Commission,35 the Court provided a detailed response to the challenges of
undertakings in respect of the power to obtain information and the power of
inspection. These judgments have since been followed by the CFI.36
A. The Power to Obtain Information

In Orkem, the issue was raised as to whether the privilege against self-incrimi-
nation operated as a general principle of Community law to delimit the applica-
tion of Article 11. The ECJ rejected that argument. It took the view that, where
the privilege against self-incrimination existed in the laws of the Member States,
it applied only in relation to criminal proceedings. Furthermore, there was no
such principle common to the laws of the Member States that could be relied
upon by legal persons in the economic sphere, in particular, with regard to
infringements of competition law.37 Finally, the ECJ observed that neither the
wording of Article 6, nor the decisions of the ECtHR, indicated that that Court
upheld the right not to give evidence against oneself.38
The ECJ in fact placed a duty upon undertakings to co-operate actively with
the Commission, in making available all information relating to the subject
matter of the investigation. It held that the Commission is entitled:
in order to preserve the useful effect of Article 11 to compel an undertaking to
provide all necessary information concerning such facts as may be known to it,
if necessary such documents relating thereto as are in its possession even if the
31 Case 136/79 [1980] ECR 2033. 32 National Panasonic, ibid, paras 19 and 20.
33 The question of self-incrimination was raised even earlier. When the initial draft of what was
to become Regulation 17 was considered by the European Parliament it voted to recommend the
inclusion of a provision against self-incrimination. However, the Council did not incorporate the
Parliament’s amendment into the Regulation. See Edward, ‘Constitutional Rules of Community
Law in EEC Competition Cases’ (1989–1990) Fordham ILJ, 112, 123, see also Kerse, op cit, para
3.44 and Advocate-General Warner in Case 155/79 AM&S Europe v Commission [1982] ECR
1575, 1621.
34 Case 374/87 [1989] ECR 3283. 35 Hoechst, op cit.
36 In respect of Orkem, see Case T-34/93 Société Générale v Commission [1995] ECR II-545;
Case T–112/98 Mannesmann Werke AK v Commission, 20 Feb 2001, not yet reported, and Case
C–294/98P Metsa Serla Og Y 6 Nov 2000 not yet reported. In respect of Hoechst, see Joined
Cases T-305/94, T-306/94, T-307/94, T-313/94, T-314/94, T-315/94, T-316/94, T-318/94, T-
325/94, T-328/94, T-329/94 and T-335/94, LVM and Others v Commission (PVC), [1999] ECR II
931, paras 405 to 407. Opinion of Advocate-General Lever, C–353/99P Council v Hautala, 10
July 2001, not yet reported. Opinion of Advocate-General Mischo Case C–94/00 Roquette Freres
v Directeur Generale de la Concurrence 20 Sept 2001 not yet reported.
37 Orkem, para 29. 38 Orkem, para 30.

matter may be used to establish against it or another undertaking, the existence
of anti-competitive conduct.39
However, the Court did accept that in order to protect the rights of the defence
during the preliminary investigation a limited privilege against self-incrimina-
tion existed in Community law. Hence:
the Commission may not compel an undertaking to provide it with answers
which might involve an admission on its part of the existence of an infringement
which it is incumbent on the Commission to prove.40
The limited nature of this privilege is illustrated by its application in

Orkem. Hence ‘Section I’ questions, which related to meetings of producers,
and were intended to secure factual information on the circumstances in which
such meetings were held and the capacity in which the participants attended
them, together with a requirement of disclosure of documents in the undertak-
ing’s possession were not open to criticism.41 Equally ‘Section II’ questions,
relating essentially to the measures taken in order to determine and maintain
price levels satisfactorily to all the participants at the meetings, were consid-
ered by the ECJ as not open to criticism in so far as the Commission sought
factual clarification as to the subject-matter and implementation of those
measures. It was only when the questions turned to the purpose of the action
taken and the objective pursued by those measures that the Commission fell
foul of the Community privilege. For example, sub-question 1(c), which
sought clarification on ‘every step and concerted measure which may have
been envisaged or adopted to support such price initiatives’, was condemned
as compelling the undertaking to acknowledge its participation in an agree-
ment infringing Article 81(1).
As the Commission has itself observed, this restriction only has the effect
of preventing it from asking leading questions.42 Essentially, as Kerse
observes, the extent of the privilege is narrow and, while it may serve to avoid
oppressive behaviour, it will in practice place no inhibition on the Commission
provided that leading questions are avoided.43
B. The Power of Inspection

In Hoechst the Court found itself confronted by a vigorous challenge to Article
14(3) based upon Article 8 of the ECHR. This time it took a different approach
to that which it took in National Panasonic. The Court did not attempt to
39 Orkem, para 34.

40 Orkem, para 35.
41 Orkem, para 37.
42 Dealing with the Commission, Notification, Complaints, Inspections and Fact-Finding
Powers under Arts 85 and 86 of the EEC Treaty (European Commission, 1997) para 4.1. (here-
after Dealing).
43 Kerse, op cit, para 3.44.

reconcile Article 14(3) with Article 8, but instead rejected the notion that
Article 8 could apply to business premises:
the protected scope of that Article is concerned with the development of a man’s
personal freedom and may not therefore be extended to business premises.
Furthermore, it should be noted that there is no case law of the European Court
of Human Rights on the subject.44
Furthermore, as in cases involving an Article 11 decision, it ruled that an

Article 14 decision providing for an inspection of business premises places a
duty of active collaboration upon undertakings.45
However, it was clear, that notwithstanding the inapplicability of Article 8, a
number of safeguards remained for defendant undertakings. Firstly, as the ECJ
in Hoechst pointed out, the requirement in Article 14(2) and (3) that the
Commission state the purpose and subject-matter of the investigation constituted
a major safeguard of the rights of the defence.46 Secondly, the Commission
guidelines indicate that it accepts an undertaking’s right of access to a lawyer.47
It is true that the Commission takes the view that the presence of a lawyer is not
a prerequisite.48 However, the Commission has indicated that it will wait a
reasonable time for a lawyer to arrive.49 Thirdly, there is the protection given to
communications between lawyers and their client undertakings. In AM&S
Europe v Commission the ECJ held that the protection extended to independent
lawyers entitled to practise the profession of law in one of the Member States.50
Fourthly, Regulation 17 itself provides an additional safeguard in the shape of
Article 20 which imposes a restriction on the use of material found, and confi-
dentiality obligations on the Commission in relation to such material.51 Fifthly,
it can also be argued that the Community law principle of proportionality
protects undertakings against oppressive behaviour, and may provide the means
of constructing additional safeguards for undertakings under investigation.52
44 Hoechst, op cit, para 30. 45 Orkem, op cit, para 27.

46 There is also the safeguard in relation to an Art 14(3) decision that, as required by Art 253
of the EC Treaty, a decision must be reasoned. However, in relation to an Art 14(3) decision, this
requirement has been interpreted as only requiring the Commission to comply with the terms of
Art 14 (3) itself, i.e. that the decision states the subject-matter and purpose of the investigation,
the appointed date on which it is to begin, the penalties that may be imposed, and the right of
review by the CFI. National Panasonic, op cit, para 25.
47 Dealing, op cit, para 5.5, sub-para 1. 48 Ibid, sub-para 2.
49 Ibid. However, if lawyers are available on site, the Commission may proceed with the inves-
tigation without waiting for the arrival of external lawyers. Explanatory Note to Authorisation to
Investigate in Execution of a Commission Decision under Art 14(3) of Regulation no.17/62, para
6. see Kerse, op cit, App G.
50 Case 155/79 [1982] ECR 1575. In Case T-30/89 Hilti AG v Commission [1990] ECR II 163,
the CFI held that legal professional privilege extended to documents drawn up by in-house
lawyers summarising the advice of outside counsel.
51 For a discussion of the extent of confidentiality and use restrictions, see Kerse, op cit, paras
3.45 and 3.46.
52 It is submitted that applying the principle of proportionality to a Commission investigation
would mean that only the minimum interference consonant with the objectives of the search are
permitted. In practice this would require Commission officials, to seek to minimise the impact of

Furthermore, additional safeguards are put in place when the Commission
is faced by opposition to its decision requiring entry. The Commission cannot
itself force entry to the premises of undertakings. Article 14(6) requires the
Member States to afford the Commission the necessary assistance. In Hoechst,
the Court held that the obligation of the Member States was to ensure that the
Commission’s action would be effective.53 This obligation of effectiveness
includes the national authorities obtaining a court order, where necessary, to
enforce a Commission decision.
Two safeguards exist to protect an undertaking in such a situation. First, it
can always challenge the legality of the Article 14 decision before the CFI54.
Secondly, in Hoechst the ECJ held that it is within the powers of the relevant
national body before it orders enforcement measures to:
(a) satisfy itself that the decision ordering the investigation is authentic;
(b) consider whether the measures of constraint envisaged are arbitrary or
excessive having regard to the subject matter of the investigation, and
(c) be sure that the rules of national law are complied with in the applica-
tion of the enforcement measures.55
Once the measures of enforcement have been issued, the Commission, with
the assistance of the Member State, will be able to force entry. In such a situ-
ation, the ECJ has ruled that the Commission has a general power of search.56
The relationship approach of a normal investigation does not apply.
C. The Investigative Provisions of the Draft Regulation and the

Fundamental Rights Case Law of the Court of Justice
It is clear from the above discussion that Articles 18, 19, and 20 of the draft
regulation comply with the fundamental rights standards developed by the
Court of Justice in Orkem and Hoechst. Indeed that case law has provided a
direct source for the development of the Commission’s investigative powers.
In particular, in Article 20(8) the draftspersons of DG Competition have relied
on the ruling of the ECJ in Hoechst to provide them with the standard for judi-
cial authorisations by national courts of Article 20(4) inspection decisions.
IV. THE ECHR IMPLICATIONS OF THE INVESTIGATIVE PROVISIONS OF THE

DRAFT REGULATION
This part first considers the issue of whether the EC competition rules are
their investigation on the operation of the undertaking and the business premises being investi-
gated. For example, by handling and refiling documents carefully, or by taking a systematic, area
by area approach to file examination, to minimise the disruption to business operations.
53 Hoechst, op cit, para 33.
54 However, as explained below, there is considerable doubt as to the efficacy of this proce-
dure to protect the rights of undertakings, see part 4.3.
55 Hoechst, op cit, para 32. 56 Ibid, para 27.

criminal for the purposes of the Convention. Then two substantive issues are
discussed. First, the compatibility of Articles 18, 19 and 20(2)(f) of the draft
regulation with Article 6 of the ECHR and the ECtHR case law on self-incrim-
ination and secondly, the compatibility of the power of inspection contained
in Article 20 with Article 8 of the Convention.
A. Whether the EC Competition Procedures and Penalties are Criminal for

the Purposes of the ECHR
The first issue to be considered is whether the investigatory procedures and the
penalties envisaged in the draft regulation are criminal in nature for the
purposes of the Convention. If these procedures and penalties are deemed
criminal, a far wider range of issues come into play than just the question of
whether the compliance of the power of inspection contained in Article 20,
with Article 8 of the ECHR.57 In particular, the role of the rule against self-
incrimination and Articles 18, 19 and 20(2)(f) of the draft regulation.
In Engel v Netherlands the ECtHR accepted that the Convention permits
Contracting States in the performance of their functions as guardians of the
public interest to maintain or establish a distinction between criminal and
regulatory law. However, it went on to point out that the definition of a crim-
inal charge, for the purposes of the Convention, is autonomous. It argued that
to have permitted the Contracting States to provide definitions of criminal,
regulatory, and disciplinary law, and to have obliged the Court to follow such
definitions, would result in the undermining of the objective and purpose of
the Convention.58 The ECtHR then set out the criteria for the autonomous
definition of ‘criminal charge’ under the Convention. It identified three core
criteria. First, the classification of the offence under national law, secondly,
the nature of the offence, and thirdly, the severity of the penalty.59
The application of the Engel criteria in a regulatory context is demonstrated
by Bendenoun v France.60 There the applicant argued that the national
proceedings in which tax surcharges were imposed upon him violated Article
6(1). The French government argued that the proceedings were not criminal,
having instead all the hallmarks of an administrative penalty. The Court
disagreed with the French government emphasising first, the nature of the
offence. It was of general application, as the offences under which Bendenoun
was charged covered all citizens in their capacity as tax payers, and not a given
group with a particular status. In addition, the tax surcharges were intended
not as pecuniary compensation for damage but essentially as a punishment to
57 If the Community competition procedures are deemed criminal for the purposes of the
Convention a number of other issues not within the scope of this paper could also be raised.
Notably whether the procedure by which the Commission determines ‘guilt’ in a decision without
first holding a hearing that complies fully with Art 6 (1) ECHR constitutes a violation of Art 6(1)
itself or Art 6(2).
58 [1979–80] 1 EHRR 647, para 81. 59 Engel, op cit, para 82.
60 [1994] 18 EHRR 54.

deter re-offending. Furthermore, the penalties were imposed under a general
rule, whose purpose was both deterrent and punitive. Secondly, in respect of
the severity of the penalty, the surcharges were very substantial, amounting to
FrF 422,534 and FrF 570,398.
Having weighed the various factors in the case, the Court noted the
predominance of those which had a criminal connotation. None of them was
decisive on its own, but taken together made the nature of the ‘charge’ in ques-
tion a criminal one within the meaning of Article 6(1).61
The case law of the ECHR has also considered the status of price fixing and
competition rules. In Deweer v Belgium 62 the Court held that a prohibition on
price fixing could be criminal in nature for the purposes of the Convention.63
Far more pertinently, in Stenuit 64 the fine was imposed upon the company
for engaging in anti-competitive practices. The fine was imposed by the
French Minister of Economic and Financial Affairs under national competi-
tion law. Stenuit, having exhausted national procedures, applied to the
Strasbourg authorities. The company argued that it had been subject to a crim-
inal charge and that its right to a fair hearing had been violated. The European
Commission of Human Rights (hereafter CHR) made two major points.65
First, in respect of the nature of the penalty, that the aim pursued by the
national competition law was to maintain free competition within the French
market. The law in question consequently affected the general interests of
society that are normally protected by criminal law. Secondly, with regard to
the severity of the penalty, that the sum imposed, FrF 50,000, was not in itself
negligible. But above all there was the fact that the maximum fine, i.e. the
penalty to which those responsible for the infringements made themselves
liable, amounted to 5 per cent of annual turnover. This, the Commission
argued, revealed clearly that the penalty in question was intended to be a deter-
rent.66
When the EC Competition rules as envisaged under the draft regulation are
considered in the light of the case law of the ECHR, the inescapable conclusion
is that, for the purposes of the ECHR, the procedures and penalties are crimi-
nal in nature. First, as the Court in Engel 67 pointed out, legislative provisions,
such as the Article 15(4) statement that Commission fines are not of the crim-
inal law nature, cannot be decisive. Secondly, the criteria provided by the Court
in Engel, Benedenoun, and Stenuit strongly support the argument that the EC
competition procedures are criminal in nature. In respect of the nature of the
‘offences’ under EC competition law, it is clear that the aim of the EC compe-
tition rules, as with the criminal law, is to protect the general interests of soci-
ety. In the case of the Community competition rules, the general societal aim is
61 Bendenoun, ibid, para 47. 62 [1979–1980] 2 EHRR 439.
63 In Deweer, the Court emphasised the punitive character of the impugned regulations as a
factor weighing heavily in its decision as to their criminal law character, op cit, para 46.
64 Stenuit v France [1992] 14 EHRR 509.
65 It should be noted that this case was settled before it reached the Court.
66 Stenuit, op cit, paras 60 to 67. 67 Engel, op cit, para 81.

the protection of the competitive process and the integrity of the single market.
These rules are of general application, applying across the whole of economic
activity. Furthermore, substantial penalties can be imposed of up to 10 per cent
of turnover, double that of the French competition law in the Stenuit case. Nor
has the Commission failed to use these powers. Its largest individual fine so
far stands at ʗ=462 million, imposed on Hoffman la Roche.68 Furthermore, the
fines that are imposed are intended to deter. As the Commission points out in
its Notice on Co-operation between National Courts and the Commission in
applying Articles 85 and 86 of the EC Treaty, (hereafter, the National Courts
Notice), the fines that are imposed have no compensatory element.69 In addi-
tion, as the Commission has pointed out in numerous reports and studies, the
aim is to punish and deter.70
Furthermore, the EC competition rules have, over the years since
Regulation 17 came into force, gained an additional attribute of criminal law.
The practices that the rules are designed to prevent have increasingly come to
be seen as illegitimate and odious by consumers, politicians, public officials
and business executives themselves.71 It is therefore submitted that the proce-
dures and penalties as set out in the draft regulation are criminal in nature for
the purposes of the Convention.
B. The Power to Obtain Information in Articles 18, 19 and 20(2)(f)

and the Rule Against Self-Incrimination
The key Convention case in relation to the privilege against self-incrimination
is Saunders.72 The Saunders case arose as a result of statements made under the
UK Companies Act to Department of Trade inspectors by the former Guinness
chairman Ernest Saunders. The case did not revolve around the application of
Article 6 to the DTI procedure, but around the use of the statements made in a
68 Commission imposes fines on the vitamin cartel. Commission press release 21 Nov 2001.
As Kerse observes, fines in millions of =ʗs are no longer rare. Kerse, op cit, para 7.27.There he lists
the most recent, and heaviest, individual and collective fines. It should be noted that if Hoffman
la Roche had not obtained leniency for its co-operation the fine would have been 50% higher i.e.
ʗ=924 rather than ʗ=462 million.
69 OJ 1993 C 39/6, para 13.
70 1997 Annual Competition Report (The European Commission, 1998), para 48.
71 For example, the UK Institute of Directors has recently established a Chartered Director
qualification. In order to become and remain a Chartered Director it is necessary to agree to, and
comply with, a code of conduct. Art 5 of which requires that CDs comply with ‘relevant laws,
regulations and codes of practice, refrain from anti-competitive practices.’ A parallel disciplinary
code provides a mechanism for sanctions against CDs who infringe the code of conduct. See IOD
Code of Conduct and IOD Disciplinary Code (IOD, 1998).
72 Saunders, op cit. The ECtHR, in the earlier case of Funke v France [1993] 16 EHRR 297,
took a much broader approach to the rule against self-incrimination. In particular, the Court indi-
cated that even an order requiring the production of documents and not just testimony infringed
Art 6. However, there was little reasoning in the judgment and the CHR opposed the conclusions
of the Court. The ruling in Saunders appears to implicitly overrule Funke. For a further discus-
sion of Saunders see Riley ‘Saunders and the Power to Obtain Information in European
Community and United Kingdom Competition Law’ (2000) 25 ELRev 264.

subsequent complex fraud trial, at the conclusion of which Mr Saunders was
convicted.
The ECtHR took the view that the right to silence and the right not to
incriminate oneself were generally recognised international standards, which
lay at the heart of the notion of a fair procedure under Article 6. It emphasised
that the right not to incriminate oneself presupposes that the prosecution in a
criminal case seek to prove its case against the accused, without resort to
evidence obtained through the methods of coercion or oppression in defiance
of the will of the accused.73 It held that the right not to incriminate oneself was
primarily concerned with respecting the will of an accused person to remain
silent. The Court argued that it was commonly understood in the legal systems
of the Contracting Parties to the Convention and elsewhere, that the right does
not extend to the use in criminal proceedings of material which may be
obtained from the accused through the use of compulsory powers, but which
has an existence independent of the will of the suspect such as, inter alia, docu-
ments acquired pursuant to a warrant, breath, blood and urine samples, and
bodily tissue for the purpose of DNA testing.74
The ECtHR argued that, in considering whether the use made by the pros-
ecution of the statements obtained from Saunders amounted to an unjustifiable
infringement of the privilege, it was necessary to determine whether he had
been subject to compulsion to give evidence, and whether the use of his testi-
mony at trial had infringed the basic principles of a fair procedure. It was clear
from the Companies Act that Saunders was subject to legal compulsion to give
evidence, and that a refusal could result in a finding of contempt and conse-
quent imposition of fines or a period of imprisonment.75
In relation to the infringement of the basic principles of a fair procedure,
the UK had argued that nothing said by Saunders in the statements was incrim-
inating. The statements were either exculpatory or, which, if true, would
confirm his defence. The Court rejected this argument. First, some of
Saunders’ answers were in fact of an incriminating nature in the sense that
they contained admissions to knowledge of information which tended to
incriminate him. Secondly, it argued that the right not to incriminate oneself
cannot reasonably be confined to statements or admissions of wrongdoing, or
to remarks which are directly incriminating. Testimony obtained under
compulsion which appears on the face of it to be of a non-incriminating nature,
73 Saunders, para 68.

74 Ibid, para 69. In the recent case of PK & JH v United Kingdom the Court accepted that
‘voice samples’, recordings taken when the plaintiffs were unaware of such recordings taking
place did not constitute an infringement of Article 6, and were akin to the taking of blood on DNA
samples, 25 Sept 2001, not yet reported.
75 Ibid, para 70. Saunders was obliged under ss 434 and 436 of the Companies Act 1985 to
answer the questions put to him by the DTI Inspectors. A refusal by the applicant to answer the
questions put to him could have led to a finding of contempt of court and the imposition of a fine
or committal to prison for up to two years. It was no defence to such a refusal that the questions
were of an incriminating nature.

such as exculpatory remarks or mere information on questions of fact, may
later be deployed in criminal proceedings in support of the prosecution case.
For example, it could be used to contradict or cast doubt upon other statements
of the accused or evidence given by him during the trial, or to otherwise under-
mine his credibility.76 Furthermore, the Court observed that the admissions
made by Saunders must have exerted additional pressure on him to give testi-
mony during the trial, rather than exercise his right to remain silent.77
The Court went on to leave open the question of whether the right not to
incriminate oneself is absolute, or whether infringements of it may be justified
in particular circumstances.78 However, it rejected the UK argument that the
complexity of corporate fraud could justify such a marked departure from one
of the basic principles of a fair procedure. It held that Article 6 applied to types
of criminal offences without distinction, from the most simple to the most
complex.79
There are two notable features of Saunders. First, orders requiring the
production of documents are permitted, subject to the authority in question
obtaining a warrant. Secondly, the breadth of what constitutes an incriminat-
ing statement. It is in no way limited to direct admissions as in Orkem, but
applies to factual statements and even exculpatory ones.
It could be argued that the Saunders rule is limited to the use of statements
in criminal trials and does not apply to investigatory procedures where there
are compulsory powers to obtain evidence.80 It is true that in Fayed the Court
ruled that Article 6 did not apply to the same Companies Act procedure as
deployed in Saunders. However, this was because the DTI inspectors were
investigators only and not adjudicators.81 That would not be the case where
the purpose of the investigatory procedure was to provide evidence for a
conviction, and the investigation and prosecution were carried out by the same
body. In such circumstances, it is submitted that the Saunders rule would be
applied by the ECtHR.82
Clearly, under the Saunders rule, the ability of DG Competition to use
Articles 18, 19, and 20(2)(f) against suspect undertakings is seriously under-
76 Ibid, para 71. 77 Ibid, para 73.

78 Ibid, para 74. It should be noted that in John Murray v United Kingdom [1996] 22 EHRR
29, the ECtHR took the view that the right to silence was not absolute and that inferences could
be drawn in certain circumstances, para 47.
79 Saunders, para 75.
80 Davies, ‘Self Incrimination, Fair Trials and the Pursuit of Corporate and Financial
Wrongdoing’, in The Impact of the Human Rights Bill on English Law (Oxford: Clarendon Press,
1998), ed Markesinis, 31, 35.
81 Fayed v United Kingdom [1994] 18 EHRR 221.
82 In I.J.K., G.M.R. and A.K.P v United Kingdom, [2001] EHRR 11, not yet reported, in a
further set of Guinness defendants sought to challenge their convictions before the Strasbourg
authorities. The ECtHR in that case did take the view that a legal requirement for an individual to
give information demanded by an administrative body did not necessarily infringe Art 6 of the
ECHR, para 100. However, as explained above this gloss on the rule in Saunders is of little assis-
tance to the Commission where the purpose of the investigatory procedure is to provide evidence
for a prosecution and subsequent conviction.

mined. While DG Competition can still request documents under Article 18(3)
it cannot, following a refusal, go to the second stage and require documents to
be produced and impose penalties if such documents are not produced. Article
18 would have to be amended so that DG Competition first had to obtain a
warrant from a court, presumably the CFI or the appropriate national court. By
contrast, an Article 18, decision requiring answers, even to facts concerning a
suspect undertaking’s general business activities, would be likely to be prohib-
ited by the rule in Saunders. The rule attacks legal compulsion not just to lead-
ing questions as in Orkem, but to a far broader swathe of questions. It is
submitted that applying Saunders in antitrust cases would be to prohibit the
asking of questions on such subjects as the operation of the business and
economic questions.83 Equally, if the Commission intends to back up the
power of interview contained in Article 19 by imposing heavy fines for
refusals by executives to attend an interview, Article 19 would fall foul of
Saunders. It is also difficult to see how the power to ask employees of a
suspect undertaking broad questions regarding the case envisaged in Article
20(2)(f) can be squared with Saunders, when failure to answer such questions
will again result in the imposition of heavy turnover fines.
It should be pointed out, however, that the existing powers under Articles
18, 19, and 20(2)(f) are not entirely devoid of substance in respect of their
power to obtain testimony evidence. They can be applied to third parties, such
as suppliers and customers, to obtain and supplement the Commission’s infor-
mation regarding a suspected antitrust infringement. Furthermore, the privi-
lege against self-incrimination does not affect the power of the Commission to
initiate on the spot inspections under Article 20.84 As Van Overbeek has
pointed out, the impact of the ECtHR case law may well encourage the
Commission to make more use of its inspection powers contained in Article
20.85 However, as argued below, the powers contained in Article 20 raise their
own problems when considered in the light of the ECHR case law.
C. The Power of Inspection, Article 20 and the Right to Home,

Private Life and Correspondence
Article 20(2) provides the Commission with the power to conduct inspections
83 Saunders, op cit, para 71. The ECtHR emphasised that even exculpatory or factual answers
given under compulsion could amount to an infringement of the privilege.
84 However, the power of the Commission to ask oral questions during inspections, under Art
14(1)(c), may well fall foul of Saunders in cases where fines can be imposed under Art 15(1)(c).
For a discussion of when fines can be imposed see Kerse, op cit, para 7.08. Should the White
Paper proposals be adopted in full the Commission will then have wide powers to ask questions
during inspections, and wide powers to impose fines for refusals or inadequate answers. White
Paper, op cit, para 113.
85 Van Overbeek, ‘The Right to Remain Silent in Competition Investigations: The Funke deci-
sion of the Court of Human Rights Makes Reform of the ECJ’s Case Law Necessary’ (1994)
ECLR 127, 132.

of both business premises and means of transport, and in Article 20(2)(b) of
the ‘homes of directors, managers and other members of staff’ of the suspect
undertakings. The first ECHR issue here is whether Article 8(1), whose aim is
to protect private and family life, home, and correspondence against state
interference, applies to business premises. Consideration is then given to
whether interference by the Commission with the right set out in Article 8(1)
can be justified under Article 8(2). Finally, the proposed power in Article
20(2)(b) to permit the Commission to search private homes is examined in the
light of the ECHR case law.
It was unclear until relatively recently whether business premises could fall
within Article 8(1). However, in Niemietz v Germany the Court provided a
convincing argument as to why Article 8(1) should apply to business premises.
First, it pointed out that there was no reason of principle why the notion of
private life should be taken to exclude activities of a professional or business
nature, since after all it is in the course of their working lives that the majority
of people have a significant, if not the greatest opportunity, of developing rela-
tionships with the outside world.86 Secondly, it is often not possible to distin-
guish clearly which of an individual’s activities form part of his professional or
business life, and which do not. Furthermore, if Article 8 was interpreted as
only applying to those whose work and personal lives are not easily separated,
those whose work and personal lives are separable would not have the protec-
tion of Article 8. Such an interpretation, the Court argued, would lead to an
unacceptable inequality of treatment.87 Thirdly, in relation to the word ‘home’
Article 8 had already been interpreted in certain Contracting States, notably
Germany, as extending to business premises. Furthermore, it argued that such
an interpretation is fully consonant with the French text, since the word ‘domi-
cile’ has a broader connotation than the word ‘home’. Again, in relation to
‘home’ or ‘domicile’, the Court raised the equality of treatment question, as it
may be as equally impossible to distinguish between home and work premises
as between work and personal life.88 Fourthly, to interpret private life or home
as including professional or business activities or premises would be consonant
with the essential object and purpose of Article 8, namely to protect the indi-
vidual against arbitrary interference by the public authorities.89 Fifthly, the
Court also noted that the object of the search in Niemietz (and indeed most
searches in regulatory matters) was documentary evidence, including corre-
spondence. Unlike the use of the word ‘life’ in Article 8, no adjective is used
to qualify the word ‘correspondence’.90 Furthermore, as the Court pointed out,
in the context of correspondence in the form of telephone calls, no distinction
between private and business calls is made.91
The Court also observed that such an extensive interpretation would not
86[1993] 16 EHRR 97, para 29. 87 Niemietz, ibid, para 29.

88Ibid, para 30. 89 Ibid, para 31. 90 Ibid, para 32.
91 Ibid, para 32 and Huvig v France [1990] 12 EHRR 528, paras 8 and 25. See also Halford v
United Kingdom [1997] 25 EHRR 523.

unduly hamper the Contracting States as they would retain their entitlement to
‘interfere’ to the extent permitted by Article 8(2). Furthermore, that entitle-
ment might be more far-reaching where professional or business activities or
premises were involved than would otherwise be the case.92
There are three parts to Article 8(2). First, any interference with Article
8(1) must be in accordance with the law. Secondly, any interference must have
a legitimate aim, and thirdly, such interference must be necessary in a demo-
cratic society. The Court has accepted that the Contracting States have a
margin of appreciation in assessing the need for supervision.93 However, the
Court also taken the view that the exceptions provided for in Article 8(2) are
to be interpreted narrowly, and the need for them in any given case must be
convincingly established.94
In respect of the first part, three requirements are placed on the authorities.
First, the interference must have some basis in the domestic legal order either
in statute or under the common law.95 Secondly, that law must be accessible,
meaning that it must be published.96 Thirdly, there is the core quality of the
law requirement: forseeability as to its consequences for the citizen, and
compatability with the rule of law.97 The forseeability criterion essentially
requires that the law must be sufficiently clear in its terms to give citizens an
adequate indication as to the circumstances in which the public authorities are
empowered to interfere with the rights protected under Article 8(1).98 The
scope of the rule of law criterion was set out by the Court in Malone v The
United Kingdom.99 It held that Article 8(1) implies that there must be a
measure of legal protection in domestic law against arbitrary interference by
public authorities.100
The second part imposes an obligation on the authorities that any interfer-
ence with Article 8 (1) must have a legitimate aim, such as national security,
public safety, the economic well-being of the country, the prevention of disor-
der or crime, the protection of health or morals, or the protection of the rights
and freedoms of others. Legitimate aims recognised by the Court and
Commission to permit searches include customs control,101 anti-terrorism
legislation,102 and the protection of copyright.103
In relation to third part, the ‘necessary in a democratic society’ criterion
the court has consistently focused upon the existence in the relevant legisla-
tion and practice of adequate and effective safeguards against abuse. The
Court’s view as to the adequacy of safeguards can be illustrated by three
92 Niemietz, para 31.

93 Funke, op cit, para 55.
94 Ibid, Klass v Germany [1979–1980] 2 EHRR 214, para 42.
95 Huvig, op cit, para 28.
96 Chappell v United Kingdom [1990] 12 EHRR 1, para 56, and Huvig, op cit, para 29.
97 Ibid, op cit, para 26. 98 Huvig, op cit, para 29.
99 [1985] 7 EHRR 14, para 33. 100 Huvig, op cit, para 33.
101 Funke, op cit.
102 John Murray v United Kingdom [1996] 22 EHRR 29. 103 Chappell, op cit.

cases in relation to search and seizure operations approved or carried out by
the state. The first, Chappell v United Kingdom, concerned an Anton Pillar
order obtained in the English High Court. In that case a judicial warrant was
obtained ex parte; evidence was presented to the judge.104 The order itself
had significant limitations as to its scope: it could only be enforced at certain
times; it was only operational for a short period; and any materials seized
could only be used for specific purposes. Furthermore, these safeguards were
buttressed by a series of undertakings given by the plaintiffs or their solicitors.
Finally, the execution of the order was in the hands of a solicitor who,
although representing the plaintiff, had overriding obligations to comply with
the order as an officer of the court. Although the ECtHR agreed with the Court
of Appeal that the manner of entry and numbers involved was ‘ disturbing and
unfortunate and regrettable’ the safeguards were approved and the execution
of the order could be regarded as proportionate to the end pursued.105
By contrast, in Cremieux v France and Miahille v France the investigatory
powers of the French customs authorities were condemned. The Court noted
that:
the customs authorities had very wide powers, in particular, they had exclusive
competence to assess the expediency, number, length and scale of the inspection.
Above all in the absence of any requirement of a judicial warrant the restrictions
and conditions provided for in law which were emphasised by the government
appeared too lax and full of loopholes for the interference in the applicant right
to have been strictly proportionate to the legitimate aim pursued.106
However, it is clear that a judicial warrant is not required in every case where
the state wishes to enter premises, whether they be business or residential. In
Camenzind v Switzerland, despite the fact there was no judicial warrant, the
Court accepted that the interference was justified under Article 8(2). However,
in that case there were extensive safeguards, including notice, and the attendance
of a lawyer and an independent observer. Furthermore, the search was limited to
checking certain items of electrical equipment.107 It is therefore necessary to
examine carefully the circumstances of each case, in particular the extent of the
search, the means used, and the strength of the safeguards.
Any examination of the compliance of the Commission’s power of investi-
gation under Article 20 with Article 8 of the ECHR must be confined to
Article 20(4) decisions. This is because Article 20(3) authorisations to inves-
tigate permit an undertaking to refuse entry to the Commission with no risk of
a penalty being imposed as a consequence of its refusal to permit entry. Hence
there can be no interference with the rights of undertakings under Article 8(1),
and no need for justification under Article 8(2).
104 Ibid, op cit, paras 59 and 60.

105 Ibid, op cit, para 63.
106 Respectively, [1993] 16 EHRR 332, para 38 and [1993] 16 EHRR 357, para 40.
107 [1997] 28 EHRR 458, para 46.

As powers such as those contained in Article 20(4) to examine and copy
documents on business premises by decision do fall within the scope of Article
8(1), it is necessary to consider whether those powers can be justified under
Article 8(2). As explained above there are three cumulative justifications that
have to be met: is the interference with Article 8(1) in accordance with the
law; does the interference have a legitimate aim; and is it necessary in a demo-
cratic society.
The first justification is itself in three parts that there be an actual basis in
domestic law, that the law is accessible, and that it is foreseeable and subject
to the rule of law. It is clear that the Commission’s powers of inspection have
a basis in the Community legal order. The power itself is set out in Article 20,
and further guidance is provided by decisions of the ECJ and CFI cases such
as AM&S, Hoechst and Hilti v Commission.108
The second question is whether the Commission’s power of inspection
complies with the Convention requirements as to accessibility. As Regulation
17 (and its successor), the case law and notices are and will be published, the
power of inspection can be said to comply with the accessibility criterion.
The forseeability criterion would appear to be complied with as a result of
the Commission’s modern practice of describing the procedural steps and the
use of its powers of inspection in its decisions.109 A more difficult question,
discussed under the ‘necessary in a democratic society head,’ is whether the
broad nature of the powers set out in the decision, unaccompanied by special
procedural safeguards, is justified by Article 8(2).
It is clear that Article 20 has a legitimate aim. The enforcement of the EC
competition regime aims to protect competition in the single market, and
thereby the economic well-being of the Community.
If the Article 20 powers are put alongside the English Anton Pillar regime,
which was approved by the ECtHR, and the French customs authorities
powers of search, which were condemned, the EC power at first sight looks as
if it falls on the condemned, French side of the line. Unlike the Anton Pillar
orders, there is no power of judicial warrant; like the French authorities the
Commission can act of its own volition and with broad discretion. That view
is reinforced by considering Camenzind, where no judicial warrant was
required by the ECtHR. However, in that case there was notice, the presence
of an independent observer, and the search itself was limited. By contrast the
Article 20 regime can operate without notice, without an independent
observer,110 and the power of investigation is very broad.
It can be argued that a number of additional safeguards are provided at
Community level to protect the rights of undertakings, by contrast with the
position under French customs law. First, it is only by decision and then
108T-30/89 [1991] ECR II 1439. 109 Kerse, op cit, para 3.21.

110Under Art 14(5) NCA officials may attend the investigation. They are not umpires or inde-
pendent observers. Art 14(5) makes it clear that the NCA officials are there to assist the
Commission. They may in fact take a direct part in the investigation. See Kerse, op cit, para 3.38.

following opposition that enforcement powers are triggered. Secondly, if
opposed the Commission must seek assistance from the national authorities.
This may mean that a judicial warrant is required from the national courts, and
that it must be obtained according to provisions of national law. Finally, an
undertaking can challenge the Commission decision before the CFI.
However, it is open to question whether even these safeguards are suffi-
cient for the purposes of the third justification of Article 8(2). First, the
national systems may not, as in the Netherlands, Sweden, Finland, Italy, and
Austria, require any judicial warrant prior to national enforcement of an
Article 20(4) decision.111 Furthermore, judicial review by the national courts
is strictly limited by Article 20(8). Following the ruling in Hoechst Article
20(8) limits the national court review to ‘establishing that the Commission
decision is authentic and that the enforcement measures envisaged are neither
arbitrary nor excessive’. Paragraph 8 then goes on to expressly rule out
national court review of either the necessity of the inspection or orders requir-
ing the Commission to adduce more evidence to the court.
At first sight Article 20(8) does offer undertakings a basis to challenge an
Article 20(4) decision by providing that the lawfulness of a Commission deci-
sion shall be subject to review by the Court of Justice.112 It is possible to inter-
pret this sentence as providing the basis for effective judicial control over
Article 20(4) decisions. However, Article 20(8) does not provide for substan-
tial pre-inspection control, for example, as occurred in Chappell in respect of
an Anton Pillar order. Furthermore, it does not alter the existing case law that
such challenges do not have suspensory effect. An undertaking can seek a
suspension of a decision until final judgment. However, in order to obtain such
a suspension it would have to make an application to the CFI under Article 242
of the EC Treaty. That article requires a plaintiff to provide proof of serious
and irreparable damage that would occur if the suspension were not granted.
It is difficult to see how any undertaking would be able to provide proof of
serious and irreparable damage simply by permitting entry to Commission
inspectors. Furthermore, as Kerse points out, it is doubtful as a practical
matter, whether, in the circumstances of an unannounced inspection, a chal-
lenge under Article 230, together with an application for suspension, could be
effected in time to prevent the inspection decision being implemented.113
In addition to an effective judicial safeguard, the case law of the ECtHR,
especially the judgment of the Court in Chappell, suggests that it will seek a
number of other significant limitations upon the powers of the Commission. In
particular, the Court will look for specification and limitation upon the scope
of the Commission’s power of inspection, rather than a broader general power
111 1999 Modernisation White Paper, op cit, para 110, n 64.

112 As explained above the review would in fact be carried out by the CFI as a result of the 1988
transfer of jurisdiction from the ECJ to the CFI.
113 Kerse, op cit, para 3.29.

of inspection. Secondly, it will look for the presence of independent observers
or qualified expert counsel.114 Unfortunately, the Commission takes the view
that the presence of a legal adviser is not a legal condition for the validity for
the inspection.115 This is notwithstanding the existence of proportionate
means of protecting the Commission interests while outside counsel are
making their way to the premises, for example, by sealing the offices the
Commission wishes to inspect.116
The likely result is that, in respect of business premises, the safeguards in
Article 20 would be considered as failing to reach the standards required by
Article 8(2) of the ECHR. Hence the interference would not be justified, and
consequently there would be an infringement of Article 8.
With respect to inspections of private homes the draft regulation does
provide an additional protection in Article 20(7) that judicial authorisation
must be obtained beforehand. However, the judicial authorisation that is envis-
aged by the draft regulation is the same weak judicial authorisation that
applies to business premises. Hence the same ECHR criticism of the power of
inspection of business premises is likely also to be applied to the inspection of
private homes. Furthermore, the lack of rigorous pre-inspection judicial
control, a broad scope of the power of inspection, and the lack of any guaran-
tee of the presence of an independent observer or expert counsel, is likely to
result in further criticism of the draft regulation’s procedural guarantees. If
Article 20 were subject to review by the ECtHR it is likely that it would
require considerably stronger safeguards as the interference is with private
homes, rather than business premises.117
V. THE ECHR CASE LAW CANNOT BE IGNORED
It could be argued that the case law of the ECHR does not have to be followed
to the letter. The position can be taken that the protections provided for under-
takings in Articles 18, 19, and 20, together with the case law of the ECJ and
CFI in respect of fundamental rights provide a legitimate Community
approach to fundamental rights protection in the context of antitrust investiga-
tions. This appears to be the view of the CFI. Since the ECtHR handed down
114 The absence of a lawyer during an Art 20(4) inspection may weigh heavily with the ECtHR.
Without the presence of a legal adviser there is, for example, the danger that privileged documents
may fall into the hands of the Commission. It is also open to question, given the complexities of
EC competition law, whether the presence of non-specialist competition lawyers at an inspection
provides a safeguard that meets the requirements of Art 8(2).
115 Art 6, Explanatory Note to Authorisation to Investigate, op cit.
116 The Commission has, however, recognised this method as a means of protecting the inter-
ests of both undertakings and itself in its own commentary on Regulation 17. See Dealing, op cit,
para 5.3.2.
117 In Niemietz the Court indicated that although business premises were caught by Art 8(1), a
greater degree of interference may be able to be justified under Art 8(2). Conversely, less inter-
ference will be permitted and the safeguards will have to be stronger where the premises in ques-
tion are private homes. Niemietz, op cit, para 31.

Saunders and Niemietz, undertakings have sought to rely on both those cases
in Luxembourg. In each case the CFI has rejected arguments based on the
Convention case law. For example, in PVC the CFI rejected challenges to
Commission decisions under Articles 11 and 14 of Regulation 17 and the use
of evidence by such decisions based on Saunders and Niemietz.118 In Cement,
the CFI went one stage further, taking the view that Orkem was analogous to
Saunders.119
However, there are four potential legal challenges to any replacement to
Regulation 17, which includes provisions akin to Articles 18, 19, and 20 of
the draft regulation, which suggest that it may be difficult for the ECJ and
the CFI to ignore the case law of the ECHR. The first of these challenges
emanates directly from the EC Treaty itself, in the guise of Article 307. The
international conflict provision of the Treaty may be able to be invoked to
thwart the application of investigation procedures modelled on Regulation
17 and found in the draft regulation. The second emanates from the impli-
cations of the judgment of the ECtHR in Matthews. The third derives from
the national courts, particularly, the danger of perceived double-standards
between EC and national competition law, especially in jurisdictions where
the national antitrust procedural rules are closely modelled on those of the
Community. The fourth potential challenge arises from the recent adoption
by the Member States at the Nice inter-governmental conference of the EU
Charter of Fundamental Rights.
A. Article 307
Although often overlooked, this provision has the potential to place significant
obstacles in the application of the investigation and contentious procedures
envisaged by the draft regulation.120
The first and second paragraphs of Article 307 provide that:
The rights and obligations arising from agreements concluded before 1 January
1958 or, for acceding States, before the date of their accession, between one or
more Member States on the one hand, and one or more third countries on the
118 PVC, op cit, respectively, paras 405–7 and 419–20.

119 Joined Cases T-25/95, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95, T-35/95, T-36/95, T-
37/95, T-38/95, T-39/95, T-42/95, T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95, T-
51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T-57/95, T-58/95, T-59/95, T-60/95,
T-61/95, T-62/95, T-63/95, T-64/95, T-65/95, T-68/95, T-69/95, T-70/95, T-71/95, T-87/95, T-
88/95, T-103/95 and T-104/95 Cimenteries CBR SA and Others v Commission (Cement), 15 Mar
2000, not yet reported, para 732. See also the robust rejection of the application of the case law
of the ECtHR in Mannesmann, op cit, para 84 et seq. For a discussion of Mannesmann see Willis
‘You have the right to remain silent . . . or do you? The privilege against self-incrimination follow-
ing Mannesmann-Werke and other recent decisions’ [2001] ECLR 313.
120 Mendelson, ‘The Impact of European Community Law on the Implementation of the
European Convention of Human Rights’ (1985) LIEI 99, 103 and Besselink, ‘Entrapped by the
Maximum Standard: On Fundamental Rights, Pluralism and Subsidarity in the European Union’
(1998) CML Rev 629, 659.

other, shall not be affected by the provisions of this Treaty.
To the extent that such agreements are not compatible with this Treaty, that
Member State or States concerned shall takes all appropriate steps to eliminate
the incompatibilities established. Member States shall, where necessary, assist
each other to this end and shall, where appropriate, adopt a common attitude.121
The scope of Article 307 is extremely wide. It applies to all international

agreements that have been entered into by the Member States prior to the entry
into force of the EC Treaty or prior to their date of their accession, irrespec-
tive of the subject matter of such agreements.122 The purpose of Article 307,
following the general principles of international law,123 is to protect the
contractual rights of third states who have a pre-existing agreement with a
Member State or States.124
Both Criminal proceedings against Jean-Claude Levy 125 and Evans
Medical v Macfarlane Smith 126 provide examples of cases in which interna-
tional agreements were held to grant rights to third states and impose obliga-
tions on the Member States. In Levy, Article 3 of ILO Convention No 89 of
1948 prohibited night work for women. In that case Advocate-General
Tesauro took the view that the rights of the third states under the Convention
extended to the performance of that obligation by France. He supported this
observation by pointing out that each Contracting Party had an interest in the
complete performance of all the other parties in order to ensure fair labour
competition. In Evans Medical, Article 307 was applied in the context of a
multilateral convention, in that case the 1961 Single Convention on Narcotic
Drugs. The Advocate-General emphasised the multilateral obligations that
bound all the states involved in the agreement. In particular, he pointed to, the
need for coordinated and universal measures against the abuse of narcotic
drugs, the danger that drugs posed to all parties, and the existence of Article
43(2) of that Convention provided for a notification system to operate between
the parties.127
As the Court explained in Levy, the application of the first paragraph of
Article 307 is in the hands of the national courts. Essentially, the national
courts have two tasks. First, they have to determine the scope of the obliga-
tions in the international agreement in question, in order to be able to deter-
mine the extent to which they thwart the application of Community law.128
Secondly, the national court must examine whether the application of the
121 At Amsterdam the words ‘1 January 1958 or for acceding states before the date of their
accession’ were added.
122 Case C-812/79 Attorney-General v Burgoa [1980] ECR 2787, para 6, Levy, op cit, para 11
and C-62/98 and 84/98 Commission Portugal, 4 July 2000, not yet reported, paras 43 and 52.
123 Art 30, Vienna Convention on the Interpretation of Treaties, (1969) ILM 679.
124 Case 10/61 Commission v Italy [1962] ECR 1.
125 Case C-158/91 [1993] ECR I 4287. 126 Case C-324/93 [1995] ECR I-563.
127 Evans Medical, ibid, AG Lenz, para 33.
128 Levy, op cit, para 21. In the context of a preliminary ruling the ECJ cannot ordinarily inter-
pret an international agreement.

provision of the international agreement in question is necessary to ensure the
performance of the obligation by the Member State concerned.129 However,
where an international agreement allows but does not require a Member State
to adopt a measure which appears to be contrary to Community law, the
national court must refrain from adopting such a measure.130
The second paragraph of Article 307 imposes more wide-ranging obliga-
tions upon a Member State. A Member State may be required to enter into
negotiations with third states to amend an international agreement.
Alternatively, if negotiations are not possible, a Member State will have to take
other steps, such as denunciation of the international agreement in question. In
relation to the conflict between Article 3 of the 1948 ILO Convention No. 89
and Article 5 of the Equal Treatment Directive, several Member States, in order
to comply with their EC law obligations, denounced Convention No. 89.131
Article 307 raises serious questions as to the application of the Community
law in the context of the ECHR. The Convention was signed by the original
Contracting Parties in 1950. All the Member States save France ratified the
Convention prior to the coming into force of the then EEC Treaty or before
accession. It is also clear that the ECHR generates multilateral obligations
between the Contracting Parties, in particular, the reference to ‘common
understanding and observances’ of the Convention’s provisions in the pream-
ble, the provision of the supervision of an international court, and the exis-
tence in Article 33 of the right of Contracting Parties to bring inter-state
actions before the ECtHR.
As set out above there are a series of conflicts between the EC competition
investigation and contentious procedures and the case law of the ECHR. Some
of these conflicts could be raised in national courts, for example, a decision
providing for payment of a periodic penalty payment levied against an under-
taking for non-compliance with a decision under Article 18 of the draft regu-
lation, or a final decision imposing fines, which has not been challenged under
Article 230 or which has upheld by the CFI and or the ECJ. Enforcement of
either decision is sought in a national court pursuant to Article 256. Another
example would be an Article 20(4) decision requiring inspection without first
obtaining a warrant, or where there has been no substantive review of the deci-
sion prior to granting a warrant. In all these cases the application of EC
competition law decisions may be able to be successfully resisted on the
grounds that they require a Member State to violate its pre-existing obligations
129Levy, op cit, para 22.

130Evans Medical, op cit, para 32.
131Case C-13/93 Office National de l’Emploi v Madeleine Minne [1994] ECR I 371, para 15,
Belgium denounced ILO Convention No 89 to ensure compliance with Art 5 of the Equal
Treatment Directive, 76/207/EEC, OJ 1976 L39/40. In Levy, the Advocate-General reported that
the French government had also denounced the ILO Convention. Levy, op cit, para 7. See also
Portugal, op cit, paras 49 and 58. In both the Portuguese cases the ECJ took the view that with
regard to Art 307 that if a Member State encounters difficulties which make adjustment of an
agreement impossible denunciation cannot be excluded.

to third states under the Convention. It is therefore, difficult to see in relation
to the rule in Saunders and its application to Articles 18 or 19 or 20(2)(f), and
in relation to testimony evidence and Niemietz and an Article 20(2) decision,
how a national court can easily escape from the prior Convention obligations
and the application of Article 307.132
When faced with a conflict between a pre-existing agreement and a Treaty
provision the Member States are required, under the second paragraph of Article
307, to take all appropriate steps to eliminate the incompatibilities. This may
mean entering into negotiations with other non-Member State state parties to the
agreement to provide for appropriate amendments. If this is not possible, the
Member States, as with ILO Convention No. 89, may be forced to denounce the
agreement to ensure their compliance with their Community law obligations.
Clearly, in the context of the ECHR, denunciation of the Convention is politi-
cally impossible.133 Therefore, caught between the irresistible force of the
Convention and the immovable object of Community law, it may well be up to
Community law to move, and re-draft the draft regulation to brings its investi-
gation and contentious procedures into line with the case law of the ECHR.
B. The Reaction of the ECtHR

So far the CHR and the ECtHR have refused to countenance any direct human
rights review of the Community institutions. The Strasbourg institutions seem
to have taken the view that the ECHR and the EC represent two distinct legal
orders, one providing a common human rights standard for its Contracting
States, the other providing human rights protection as an integral part of its
acquis.134 However, there are strong grounds based on the case law of the
132 The likely first step for a national court would be to seek a reference under Art 234 to the
ECJ.
133 In the Portuguese cases the ECJ emphasised the importance of the existence of a denuncia-
tion clause in the agreements in question. The Court argued that the exercise of the denunciation
clause provided Portugal with a means to escape its obligations to the other Contracting Parties.
Portugal, op cit, paras 46 and 55. The ECHR also contains a denunciation clause in Art 58.
However, exercise of that Art by the Member States is likely to be considered politically impos-
sible,especially in the light of Art 6(2) TEU and the recently adopted EU Charter of Fundamental
Rights, see part 5.4.
134 Schemers, ‘The European Communities Bound by Fundamental Human Rights’ (1990)
CMLRev 249 and Advocate General Jacobs in C-168/91 Konstantinidis v Stadt Altensteig-
Standesamt [1993] ECR I-1191, paras 50–51. See for example, Paftis v Greece [1999] 27 EHRR
566, para 95. This case concerned the issue of whether the case before the national courts had
infringed Art 6 of the ECHR by being unduly delayed. The national court had made a reference
under Art 234 of the EC Treaty to the ECJ. Despite the considerable time it took the ECJ to deliver
its ruling (over 20 months) the ECtHR refused to take account of that time period in calculating
the time taken by the national court for the purposes of the reasonable time doctrine contained in
Art 6. However, in Cantoni v France (1996) ECHR Reports, 1997-V-,1614, paras 29–30, not
reported in the EHRR, the ECtHR took the view that the fact that a domestic provision is based
almost word for word on a Community directive does not remove it from the ambit of the
Convention. There appears to be no obvious principle to discern in the approach of the ECtHR to
the Community legal order, save a notion of judicial respect toward the ECJ.

Convention and Community law for doubting whether this refusal to review
the Community institutions will be maintained.
1. The Refusal to Review

The Strasbourg authorities have refused to undertake a human rights review of
the Community institutions. As early as 1977, the CHR refused to accept as
admissible a human rights challenge brought against the European
Communities. In CFDT v European Communities and Dufay v European
Communities135 the CHR took the view that the Community law constituted a
sui generis legal order, and held that challenges before the Strasbourg authori-
ties in relation to acts of the EC institutions were inadmissible. Furthermore, in
respect of an EC competition case, M & Co., the CHR136 went even further. It
accepted that under Article 1 of the Convention the Member States are respon-
sible for all acts and omissions of their domestic organs, regardless of whether
the act or omission of the domestic organ in question is of domestic or interna-
tional origin. However, in three paragraphs it then severely limited the applica-
tion of the Convention case law to the Community legal order. First, it held that
powers could be transferred to an international organisation without infringing
Convention rights, so long as the international organisation provided equivalent
protection.137 Secondly, the Community legal order, through a declaration of
adhesion to the principles of the ECHR by three of the EC institutions,138 and
the human rights control of EC acts by the ECJ, provided equivalent protec-
tion.139 Thirdly, the CHR argued that it was contrary to the very idea of trans-
ferring powers to an international organisation to hold the Member States
responsible for examining whether the provisions of the ECHR had been
respected in each individual case before enforcing an EC act.140
2. The Reasoning of Matthews

Matthews v United Kingdom represents a significant development in the
approach of the Strasbourg authorities to the relationship between the
Convention and the Community legal order. The case arose out of a claim
based upon Article 3 of Protocol No 1. Mrs Matthews claimed a violation by
the United Kingdom of her right to participate in free elections, by virtue of
the fact that, as a British national resident in Gibraltar, she was unable to vote
in the 1994 elections to the European Parliament.141 There was no provision
135 Respectively, Case Application No 8030/77 and Case Application No 13539/80. See also
the recent admissibility Case Application No 51717/99 Société Guerin Automobiles v The Fifteen
Member States of the European Union, 4 July 2000, not yet reported. Currently there is a major
challenge to the investigative powers of the Commission laid before the ECtHR. See Case
Application No 56672/60 DSR Senator Lines v Fellow Member States of the EU.
136 Case Application No: 13258/87 M & Co. v Germany.
137 M & Co, ibid, 8, para 1.
138 1977 Joint Declaration on Fundamental Rights, OJ 1977 C103/1.
139 M & Co, op cit, 8, para 5. 140 Ibid, op cit, 9, para 6.
141 Matthews, op cit. Mrs Matthews is a British national born and resident in Gibraltar.

for such residents to vote in those elections notwithstanding the fact that the
European Parliament, together with the EU Council, enacted legislation which
applied to Gibraltar. The Court held that there had been a violation of Mrs
Matthews’s Convention rights by the UK.
The ECtHR observed that:
acts of the EC as such cannot be challenged before the Court because the EC is
not a Contracting Party. The Convention does not exclude the transfer of compe-
tences to international organisations provided that Convention rights continue to
be ‘secured’. Member States’ responsibility therefore continues even after such
a transfer.142
The Court noted that the relevant Council Decision, the international agree-
ment between the Member States creating specific provisions for the European
elections, (hereafter the 1976 Act) and the Maastricht Treaty, which amended
the powers of the European Parliament, all constituted international agree-
ments that were freely entered into by the UK. It further pointed out that, as
an international agreement and not an act adopted by the Community institu-
tions, the 1976 Act could not be challenged before the Community institu-
tions. It argued therefore that the UK, together with all the other parties to the
Maastricht Treaty, was responsible ratione materiae under Article 1 of the
Convention and Article 3 of Protocol No. 1 of the Convention for the conse-
quences of that Treaty.143
It then went on to point out that it was uncontested that legislation emanat-
ing from the legislative processes of the Community affected the population
of Gibraltar in the same way as legislation which enters the domestic legal
order exclusively via the Gibraltarian House of Assembly. To this extent, it
held there was no difference between European and domestic legislation, and
no reason why the UK should not secure the rights in Article 3 of Protocol No
1 in respect of European legislation, in the same way as those rights are
secured in respect of purely domestic legislation. The ECtHR then rejected the
argument that the UK did not have effective control over the state of affairs
complained of. This state of affairs, it argued:
cannot affect the position as the United Kingdom’s responsibility derives from
its having entered into Treaty commitments subsequent to the applicability of
Article 3 of Protocol No.1. to Gibraltar, namely the Maastricht Treaty, taken
together with its obligations under the Council Decision and the 1976 Act.144
One of the key points that stands out of the Matthews ruling is that the
infringement of Convention rights in that case could not be challenged before
the ECJ. Cantor argues that the fact that the ECtHR believed that Mrs
Matthews had no effective judicial remedy may have had a decisive influence
on the outcome of the judgment.145 King also highlights the importance of the
142 Ibid, op cit, para 32. 143 Ibid, op cit, para 33. 144 Ibid, op cit, para 34.
145 Cantor, ‘Primus Inter Pares, Who is the Ultimate Guardian of Fundamental Rights in

lack of a judicial remedy. For example, he points to the potential application
of the Convention to Justice and Home Affairs matters falling outwith the EC
Treaty.146
As Cantor and King argue, it is not too difficult to see why the Court
applied the Convention in this case, given the lack of judicial protection avail-
able to Mrs Matthews. However, a close reading of the text of the judgment
suggests that the ECtHR may be now more willing to assert its jurisdiction
over the entire Community legal order. In the first place, the Court did not
exhibit any reticence in carrying out a detailed examination of the legislative
procedures of the Community institutions. Given that lack of reticence it is
open to question how safe it is for commentators to rely on a notion of sepa-
rate spheres for the application of Community and Convention law and their
respective courts. Secondly, it is possible to discern a tightening of the
language used by the Court in Matthews, as compared with the language of the
CHR in M & Co, and consequently a raising of the human rights standard
required of the Community legal order. In M & Co. the CHR sought only
‘equivalent protection’ from the Community legal order, focusing on the 1977
declaration made by the Community institutions and the ECJ’s development
of human rights as general principles of law. In Matthews by contrast, the
Court refers to the need for the human rights set out in the Convention to be
‘secured’ in terms of Convention standards. Thirdly, there is an emphasis in
Matthews on the practical effects of the legal issues in question on the human
rights position on the ground. The Court emphasised that Gibraltarian and
European legislation affected the population in the same way. Given the fact
that Gibraltarians had no right to vote in elections for the European Parliament
their Convention rights had been infringed.
Furthermore, the ‘living instrument’ argument applied by the Court to the
European Parliament is capable of a far wider application. The Court took the
view that:
the Convention is a living instrument which must be interpreted in the light of
present-day conditions is firmly rooted in the Court’s case-law (see, inter alia,
the Loizidou v Turkey judgment of 23 March 1995. The mere fact that a body was
not envisaged by the drafters of the Convention cannot prevent that body from
falling within the scope of the Convention. To the extent that Contracting States
organise common constitutional or parliamentary structures by international
treaties, the Court must take these mutually agreed structural changes into
account in interpreting the Convention and its Protocols.
In Matthews the Court restricted the application of the ‘living instrument’

argument to one Community institution, the European Parliament. However,
Europe?’ (2000) ELRev 1, 5. Although Cantor does argue that in fact the ECJ could have provided
a remedy, pp 5–7. See also Schermers, ‘Matthews v. the United Kingdom’ Case Law note (1999)
CMLRev 673.
146 King, ‘Ensuring Human Rights Review of Inter-Governmental Acts in Europe’ (2000)
ELRev 79, 84–7.

there is no reason in principle why the living instrument argument cannot be
extended to all the other Community institutions and the acquis. If the Court
can take account of the establishment of a supranational law-making
Parliament by some of the Convention’s Contracting Parties, it is difficult to
see why it cannot also take account of the development of the acquis itself.
After all, that too did not exist at the time the Convention came into being. Just
like the European Parliament it is a later creation of the Contracting Parties.
3. Equivalent Protection or Theoretical and Illusory Protection?

Serious questions can be asked of M & Co, in particular the CHR’s approach
to the notion of equivalent protection.
Besselink pertinently asks ‘how equivalent is equivalent?’147 That question
carries a much sharper edge in the light of the argument above that there are
actual or potential conflicts between the case law of the ECHR and the EC
investigation and competition procedures. At the very least, it is difficult to see
how the Community legal order can be said to provide equivalent protection
in relation to self-incrimination and the power of inspection. It is difficult to
see the value of the equivalent doctrine in respect of the protection of human
rights. If the Community were a Member State it would face challenges to
Articles 18, 19 and 20 of the putative replacement to Regulation 17 before the
national and Strasbourg courts. The doctrine would appear in practice to offer
the Community institutions the means to escape from the constraints of the
Convention, virtually without limitation.
A further consideration as to the potential willingness of the ECtHR to act
to protect Convention rights, is the emphasis in Matthews that the Convention
is intended to guarantee rights that are not theoretical or illusory, but practical
and effective.148 Given the conflicts set out above between the EC competi-
tion procedures and the CFI and the ECJ case law, and the case law of the
ECtHR, it would not be unreasonable for the Court to take the view that, at
least in respect of the competition procedures, the protection of Convention
rights within the Community legal order is theoretical and illusory.
4. Article 53 of the ECHR
A further problem for the M & Co approach comes from an as yet largely unex-
plored provision of the Convention: Article 53 of the ECHR. It provides that:
nothing in this Convention shall be construed as limiting or derogating from any of
the Human Rights and fundamental freedoms which may be ensured under the laws
of any High Contracting Party or under any other agreement to which it is a Party.
Besselink makes a good case for saying that this Article only permits national
fundamental rights provisions offering higher human rights standards to be
147 Besselink, op cit, 656. 148 Matthews, op cit, para 34.

applied in place of the ECHR.149 If that view is correct, as yet there is no case
law on the point, then it is even more difficult to see how the approach of the
CHR in M & Co. can be sustained. The Community legal order, as explained
above, is not providing a higher standard of protection, nor is the ECHR stan-
dard being reached. Effectively, the Member States are acquiescing in the
transfers of powers to an international organisation that provides for lower
human rights protection than that provided by the Convention.150
5. Article 307: More Communautaire than the Community?

A further issue for the Strasbourg court is the application of Article 307. If the
EC Treaty permits Convention standards to trump the application of
Community law, at least before denunciation of the Convention by the
Member States, it is difficult to see why the ECtHR should refuse to apply
Convention standards in respect of Community law. If national courts can rely
on Article 307 to apply the Convention case law to the activities of the
Community institutions, but the Strasbourg authorities refuse to apply their
own standards to those institutions, it would appear that Strasbourg is being
more Communautaire than the Community.
C. The National Court Reaction

A further issue is the likely reaction of the national courts. Although the draft
regulation proposes the effective abolition of national competition law, the
likelihood is that the national rules will remain intact and will be able to be
applied in parallel with EC competition law.151 Consequently, in states such
as the United Kingdom which have modelled their antitrust procedural rules
on the Community rules, there is a danger of counsel drawing judicial atten-
tion to the stronger human rights protection that can be applied to the UK as
opposed to the Community rules. For example, Section 26(1) of the UK
Competition Act 1998 permits the Director General of Fair Trading to issue a
notice to require any person to provide him with specified information which
he considers relates to any matter relevant to an investigation. Section 42(1)
makes it a criminal offence not to comply with a requirement set out in a
Section 26(1) notice. Sections 26(1) and 42(1) provide similar powers to the
OFT as Article 18 of the draft regulation will provide to DG Competition.
British judges will find it very difficult to take the argument that the
149 Besselink, op cit, 657.

150 Ibid, 656, also raises the issue of the application of Art 55. There the Convention limits
application of disputes regarding interpretation or application of its provisions to the Strasbourg
dispute settlement procedures. It is unclear how Art 55 would apply to the Community legal order.
There has so far been only one case in which Art 55 has been raised, Cyprus v Turkey [1997] 23
EHRR 244. See also Mendelson, op cit, 108.
151 There appears to be considerable ministerial disquiet at the prospect of the effective aboli-
tion of national competition law. See ‘Ministers to Underline Concerns Over Flaws in Monti’s
Blueprint’, European Voice, 30 Nov 2000.

Commission should be under a far more privileged position in respect of their
power to obtain information under Article 18 than the OFT is under its almost
identical powers under sections 26(1) and 42(1).152
D. The EU Charter of Fundamental Rights

At Nice in December 2000 the EU Charter of Fundamental Rights was
‘proclaimed’ by the representatives of the governments of the Member States
meeting in inter-governmental conference. Article 51(2) of the Charter
expressly provides that:
This charter does not establish any new power or task for the Community or the
Union, or modify powers and tasks defined by the Treaty.
It appears therefore that the Charter is not intended to be a document creating

new norms for the Community legal order. Given its origin it is however likely
to prove a source of guidance for the ECJ and the CFI in developing funda-
mental rights as general principles of law.152a
The Charter then goes on in Article 52(3) to provide that:
Insofar as this Charter contains rights which correspond to rights guaranteed by
the Convention for the protection of Human Rights and Fundamental Freedoms,
the meaning and scope of those rights shall be the same as those laid down by
the said Convention. This provision shall not prevent Union law providing more
extensive protection.
Here the Charter is requiring the same meaning and scope for Charter as for
corresponding Convention rights. This notion of same meaning and scope may
well be used by undertakings to argue that a similar approach should be used
in respect of fundamental rights in the general principles of Community law.
Given the origin of the Charter, that argument may prove extremely influen-
tial with the ECJ and the CFI.
152 It could be argued that the interpretive obligation in Section 60 of the UK Competition Act
which requires that, insofar as possible, questions arising under the Act are to be dealt with in a
manner which is consistent with the treatment of corresponding questions arising in Community
law in relation to competition within the Community, having regard to any relevant differences.
However, the broad scope of section 3 of the Human Rights Act which applies the Act to primary
legislation and subordinate legislation whenever enacted; together with the fact that both Acts
were enacted on the same day; suggests that if Parliament had intended for Section 60 to act as a
lex specialis to the HRA it would have said so. Furthermore, if Section 60 did oust the operation
of the HRA, the UK by not complying with Saunders would be infringing its Convention obliga-
tions, which again suggests that Section 60 does not override the operation of the HRA and the
Convention case law. For a further discussion of the issues see Riley, ‘The Human Rights Act
1998: Triple Trouble for the OFT?’ Nott LJ, Winter 1999 1, 23–5.
152a So far the Charter of Fundamental Rights has been referred to in 13 cases, only one of which
was a judgment, Mannesmann, in which the CFI took the view that it was adopted too late to apply
in that case. Booker Aquaculture v Scottish Ministers Paris 126. However the Advocate-General’s
opinions do illustrate the potential of the Charter to inform and expand existing rights, and the
emphasis given to the ECHR case law. See in particular the opinion of Advocate-General Mischo,
C-64/60, Mannesmann op cit, para 76.

VI. ENSURING ECHR COMPLIANCE AND EFFECTIVE COMPETITION

PROCEDURES
Supporters of Articles 18, 19, and 20 are likely to argue that without these
provisions the Commission will be rendered toothless in the face of the
damage that can be inflicted on the Community economy and consumers by
global cartels. This argument is strongly contested. It is submitted that the
draft regulation could be re-drafted to give the Commission effective investi-
gation and enforcement powers and comply with the Convention case law.
For example, it makes little difference to the operations of DG Competition
whether it obtains a decision from the Commissioner for Competition autho-
rising an Article 20(4) investigation, or a warrant from the CFI.
One issue, however, remains of importance for the DG Competition self-
incrimination. It could be argued that the Commission cannot comply with the
rule in Saunders and effectively apply and enforce the EC competition
rules.153 This argument, it is submitted, does not stand up to a close examina-
tion of the ECHR case law. It is true that Saunders acts as a bar to the appli-
cation of Articles 18, 19, and 20(2)(f) of the draft regulation, at least in relation
to testimony evidence.154 However, testimony evidence can still be obtained
from the representatives of undertakings in competition proceedings. First, an
independent tribunal155 could require an undertaking’s representatives to give
evidence on oath.156 Any deliberately false answers could result in criminal
153 It would appear that this fear may explain the curt rejection of arguments based on Saunders
in PVC, where the CFI refused to recognise what it termed an, ‘absolute right to silence.’ PVC,
op cit, para 448 Mannesmann, op cit, para 66.
154 Saunders indicates that documentary evidence can be seized or copied so long as warrant is
obtained first, op cit, para 69.
155 A strong argument can be made that in addition to bringing the investigative procedures of
the draft regulation into line with the ECHR case law, the procedure, which applies both under
Regulation 17 and will be continued under the regime proposed by the draft regulation, by which
the Commission ‘prosecutes’ undertakings before its own internal tribunal should be abandoned
in favour of a first instance hearing before an independent tribunal. Firstly, it is open to question
whether a decision determining that an undertaking has committed a serious antitrust offence and
imposing heavy fines, without first being heard by an independent and impartial tribunal,
complies with Art 6 of the ECHR. Secondly, the lack of an independent tribunal hearing the case
at first instance is a source of some of the major procedural reverses that the Commission has
suffered before the CFI. An independent tribunal would be able to hear early on demands for addi-
tional documents and other procedural challenges, removing many significant grounds for further
appeal. Thirdly, the abolition of the Commission’s own procedure would permit staff resources to
be reallocated. The Commission would proceed by initiating antitrust charges before the inde-
pendent tribunal-without the additional strain of issuing a statement of objections, dealing with
requests for further documents, assessing written defences to the statement of objections , organ-
ising the oral hearing and drafting the decision. It is interesting to note that the Treaty of Nice has
made it possible to establish an independent tribunal under the CFI on competition law matters by
virtue of the provision for judicial panels in the new Arts 220 and 225A.
156 Severes v France [1999] 28 EHRR 265, para 47. The ECtHR held that the purpose of the
oath is to ensure that a person tells the truth, not to levy compulsion upon him. The right to silence
remains.

prosecution by the national authorities. Secondly, if a representative refuses to
answer questions put to him during cross-examination in the tribunal, the
ECHR case law permits inferences to be drawn from such refusal to answer
questions.157 Thirdly, additional powers could be sought in replacement of
Articles 18, 19, and 20(2)(f) which do comply with the ECHR case law. For
example, the Commission could seek powers in respect of electronic surveil-
lance of undertakings. As long as the powers for electronic eavesdropping
were set out in detail and adequate judicial protection provided, the
Convention case law would not prevent the Commission from exercising such
powers.158 Furthermore, a case can also be made that there are also more
effective means of obtaining evidence, such as a well drafted cartel whistle-
blowing notice. The existence of such a notice in the US has had the effect of
significantly enhancing the application and enforcement of their competition
rules.159
It is submitted therefore that the Commission should look again at the
investigative procedures envisaged in the draft regulation, to bring them into
compliance with the Convention case law and maintain and even increase the
effectiveness of Community competition law. Furthermore, by doing so it will
head off potentially dangerous litigation in the national, Community and
Strasbourg courts which could threaten the legitimacy of the Community’s
competition regime, if not the entire Community legal order itself.
157 John Murray, op cit, para 54. The ECtHR held that inferences can be drawn from silence,
so long as there is already evidence that calls for explanation from the accused.
158 Malone, op cit. The issue for the ECtHR is whether the legal instrument providing for such
powers is accessible to the public, is clear in its terms as to the categories of persons to whom it
applies, and provides for independent supervision. Clearly the Member States are unlikely to grant
the Commission direct electronic surveillance powers. However, the draft regulation could
provide an obligation for the Member State authorities to provide such assistance to the
Commission, perhaps after having obtained an order from the CFI permitting the Commission to
make such a request.
159 The US Cartel Leniency Program, since its inception in 1993, has had a high degree of
success. In 1999 alone over $1 billion fines were imposed, thirty-five Grand Jury investigations
were launched into international cartels and undertakings are entering the programme at the rate
of one a fortnight. Recently the European Commission proposed the adoption of a new leniency
notice which would be much more closely aligned with the US model. See OY 2001 C205/18
Draft Commission Notice on immunity from fines and reductions in cartel cases.

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THE ECHR IMPLICATIONS OF THE INVESTIGATION PROVISIONS

OF THE DRAFT COMPETITION REGULATION

In September 2000 the European Commission published its long-awaited

[ICLQ vol 51, January 2002 pp 55–89]

https://doi.org/10.1093/iclq/51.1.55 Published online by Cambridge University Press

II. THE POWERS OF INVESTIGATION CONTAINED IN THE DRAFT REGULATION

https://doi.org/10.1093/iclq/51.1.55 Published online by Cambridge University Press

The power is not limited to representatives of suspect undertakings. It

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19 1999 Modernisation White Paper, op cit, para 111.

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22 Art 22. 23 Art 23.

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III. FUNDAMENTAL RIGHTS PROTECTION FOR UNDERTAKINGS WITHIN THE

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A. The Power to Obtain Information

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The limited nature of this privilege is illustrated by its application in

B. The Power of Inspection

39 Orkem, para 34.

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Furthermore, as in cases involving an Article 11 decision, it ruled that an

44 Hoechst, op cit, para 30. 45 Orkem, op cit, para 27.

https://doi.org/10.1093/iclq/51.1.55 Published online by Cambridge University Press

C. The Investigative Provisions of the Draft Regulation and the

IV. THE ECHR IMPLICATIONS OF THE INVESTIGATIVE PROVISIONS OF THE

https://doi.org/10.1093/iclq/51.1.55 Published online by Cambridge University Press

A. Whether the EC Competition Procedures and Penalties are Criminal for

https://doi.org/10.1093/iclq/51.1.55 Published online by Cambridge University Press

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B. The Power to Obtain Information in Articles 18, 19 and 20(2)(f)

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73 Saunders, para 68.

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76 Ibid, para 71. 77 Ibid, para 73.

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C. The Power of Inspection, Article 20 and the Right to Home,

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86[1993] 16 EHRR 97, para 29. 87 Niemietz, ibid, para 29.

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92 Niemietz, para 31.

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104 Ibid, op cit, paras 59 and 60.

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108T-30/89 [1991] ECR II 1439. 109 Kerse, op cit, para 3.21.

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111 1999 Modernisation White Paper, op cit, para 110, n 64.

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V. THE ECHR CASE LAW CANNOT BE IGNORED

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118 PVC, op cit, respectively, paras 405–7 and 419–20.

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The scope of Article 307 is extremely wide. It applies to all international

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129Levy, op cit, para 22.

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B. The Reaction of the ECtHR

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1. The Refusal to Review

2. The Reasoning of Matthews

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In Matthews the Court restricted the application of the ‘living instrument’