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The European Court of Human Rights: Dubus S.A.V.France
Published online by Cambridge University Press: 27 February 2017
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- Copyright © American Society of International Law 2009
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* This text was reproduced and reformatted from the text available at the European Court of Human Rights official website (visited Oct. 21, 2009) <http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Dubus%20%7C%205242/04&sessionid=32919879&skin=hudoc-en>.
* This text was reproduced and reformatted from the text available at the European Court of Human Rights official website (visited Oct. 21, 2009) <http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Dubus%20%7C%205242/04&sessionid=32919879&skin=hudoc-en>.
† Important Legal Notice: This is a courtesy translation by Nabil Abou-Charaf, intern at Orrick, New York office. The original decision is in French.
1 The record fine imposed against Saint Gobain in the amount of €896 million for its role in the car glass cartel was recently overtaken by Intel, fined €1.06 billion for engaging in anticompetitive practices by excluding competitors from the market for x86 central processing units. See Case COMP/C-3/ 37.990—Intel, 2009 O.J. (C 227/13) 13.
2 Readers familiar with the European legal system will know that the European Union (EU) and the European Convention on Hurman Rights (ECHR) are two distinct legal systems. The former, which has twenty-seven member states, was founded by the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) (as recently renamed by the Lisbon Treaty). Its laws are interpreted by the Court of Justice and the General Court in Luxembourg, before which challenges to the legality of acts of EU institutions (including the European Commission) are made. The ECHR, on the other hand, is an international treaty to protect human rights and fundamental freedoms in Europe. Its signatories are the forty-seven members of the Council of Europe. The European Court of Human Rights (ECtHR), which interprets the ECHR, sits in Strasbourg.
3 Dubus v. France, App. No. 5242/04, Eur. Ct. H.R. (2009), available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Dubus%20|%20S.A.%20|%20v%20|%20France%20|%205242/04&sessionid=46733826&skin=hudoc-en [hereinafter Dubus].
4 See, e.g., Frank Montag, The Case for a Radical Reform of the Infringement Procedure under Regulation 17(8), Eur. Compet. L. Rev. 428, 430 (1996); Ian Forrester, Due Process in EC Competition Cases: A Distinguished Institution with Flawed Procedures, 34 EUR. L. Rev. (2009); Jürgen Schwarze & Rainer Bechtold, Deficiencies in European Community Competition Law: Critical Analysis of Current Practice and Proposal for Change, Gleiss Lutz (2008); Donald Slater, Sébastien Thomas & Denis Waelbroeck, Competition Law Proceedings Before the European Commission and the Right to a Fair Trial: No Need for Reform? (College of Europe, Global Competition Law Centre Working Paper No. 04/08), available at http://www.coleurop.be/content/gclc/documents/GCLC%20WP%2004-08.pdf; Arianna Andreangeli et. Al., Enforcement by the Commission: The Decisional and Enforcement Structure in Antitrust Cases and the Commission’s Fining System (2009).
5 Under the European Commission’s leniency policy, companies that provide information about a cartel in which they participated can receive full or partial immunity from fines.
6 Philip Lowe, Cartels, Fines, and Due Process, CPI Competition Policy Int’l, June 30, 2009, (citing, inter alia, Case T-54/03, Lafarge v. Comm’n, 2008 E.C.R. II-120 ¶ 38). This view is shared by Fernando Castillo de la Torre, Evidence, Proof and Judicial Review in Cartel Cases, 32 Kluwer L. Int’l World Compet. L. & Econ. Rev. 505 (2009).
7 Wouter P. J. Wils, The Increased Level of EU Antitrust Fines, Judicial Review, and the European Convention on Human Rights, 33 L. & Econ. Rev. (forthcoming Mar. 2010) (citing Janosevic v. Sweden, App. No. 34619/97, Eur. Ct. H.R. (2003) and Jussila v. Finland, App. No. 73053/01, Eur. Ct. H.R. (2006)).
8 Various hurdles have to be overcome before this can happen. See infra note 2.
9 In Engel v. Netherlands, App. No. 5100/71, 5101/71, 5102/ 71, 5354/72, 5370/72, 1 Eur. H.R. Rep. ¶ 82 (1976), the Court held that, in order to determine whether a given ‘‘charge’’ vested with a disciplinary character nonetheless counts as ‘‘criminal’’ within the meaning of Article 6,
it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States. The very nature of the offence is a factor of greater import. . .However, supervision by the Court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the “criminal” sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so.
10 Dubus, supra note 3, ¶37.
11 Id. ¶ 38.
12 Id. ¶¶ 57–58.
13 Id. ¶ 56.
14 Id. ¶ 60 (author’s translation of the French original).
15 Wouter P. J. Wils, The Combination of the Investigative and Prosecutorial Function and the Adjudicative Function, 27 World Compet. L. & Econ. Rev. 202 (2004).
16 One commentator, writing about the Commission’s cumbersome internal decision-making procedure, questioned
whether the interests of equity are served best by frequent review of draft documents alone, or whether consideration should be given to granting the opportunity to an ‘accused’ firm to ask questions, and be entitled to answers, to examine as many as possible of the documents on which the Commission bases its findings, or even formally to question the relevant Commission officials or experts, on whose ‘testimony’ the Commission’s ultimate finding will be based.
See Frances Graupner, Commission Decision-Making on Competition Questions, 10 C.M.L. Rev. 291-305 (1973).
17 Council Regulation 1/2003 art. 23, Implementation of the Rules on Competition Laid Down in Articles 81 and 82 of the Treaty, 2003 O.J. (L 1) 1-25.
18 See, e.g., Neelie Kroes, European Commissioner for Competition Policy, Opening Speech at International Bar Association Conference: Private and Public Enforcement of EU Competition Law (Mar. 12, 2009), available at http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/09/106&format=HTML&aged=0&language=EN&guiLanguage=en (noting that ‘‘[t]he fines that we impose also send a message that deters future offences and forces executive culture change. In this way fines are also an effective signal to the dozens of other would-be cartelists and rule-breakers’’).
19 See, e.g., Opinion of Advocate General Juliane Kokott in Case C-97/08 P, Akzo Nobel NV v. Comm’n (Apr. 23, 2009) (observing that ‘‘the consequence of the sanctionative nature of measures imposed by competition authorities for punishing cartel offences – in particular fines – is that the area is at least akin to criminal law’’). See also Opinion of Advocate General Bo Vesterdorf in Case T-1/89, Rhoˆne Poulenc SA v. Comm’n, 1991 E.C.R. II-00867:
In view of the fact - in my view confirmed to some extent by the judgment of the Court of Human Rights in theO¨ ztu¨rk case - that the fines which may be imposed on undertakings pursuant to Article 15 of Regulation No 17/62 do in fact, notwithstanding what is stated in Article 15(4), have a criminal law character, it is vitally important that the Court should seek to bring about a state of legal affairs not susceptible of any justified criticism with reference to the European Convention for the Protection of Human Rights.
20 Monetary and Financial Code art. L.613-21.
21 Several obstacles have to be overcome, including the consent of European Parliament and approval by member states (Article 218(6) and 218(8) TFEU), and further clarity on the mechanics of the EU’s membership, such as the appointment of an EU judge and the relationship between the ECtHR and the EU Courts.
22 Treaty on European Union art. 6(2), Feb. 7, 1992, 1992 O.J. (C 191) [hereinafter TEU].
23 Article 47(2) of the Charter provides that ‘‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. . . .’’
24 TEU art. 6(1).
25 These arguments are currently before the Court in Case T-56/09, Saint Gobain Glass France v. Comm’n, 2009 O.J. C 90/ 31, 32.
1 Editor’s Note