(EFFECTS BASED?!) FUNDAMENTAL RIGHTS AND COMPETITION LAW - AN EFFECTS BASED FUNDAMENTAL RIGHTS PROTECTION
We had a great conference in Bratislava last week (Fifth Annual Conference on Competition Enforcement in the CEE Member States). I was the chair of the panel on due process and competition law and had great panel members.
There have been occasional blog posts (So What; Alrosa, negotiated procedures and the procedural economy/due process conundrum – one step forward, three steps back?; Yes European Competition Law Enforcement is Open to Abuse, But at Least Firms in Europe Can Appeal; etc.)
Many papers already written on the subject.
Many of the papers, decisions, judgements are very relaxed (probably for good reason) on the issue. I can't keep thinking on how lawyers can state the followings:
Menarini judgement of the ECtHR: „[...] provided that the judicial body does in fact exercise this unlimited
jurisdiction." Italian administrative courts had in fact exercised full jurisdiction, notwithstanding general statements as to their jurisdiction being limited.
I know it is a theoretical question: How can a court do something to which it has no right to do?
One of the great academic-practitioner, who I think is a great mind writes: „What is decisive is whether the General Court in fact exercises full jurisdiction, not any general statements which the Courts may make as to its
powers." Wils, Wouter P. J., The Compatibility with Fundamental Rights of the EU Antitrust Enforcement System in Which the European Commission Acts Both as Investigator and as First-Instance Decision Maker.
I am preparing a book on Fundamental rights and competition law for two years now. I just gave a new titel to it: Effects based fundamental rights protection in EU competition law. (out in two month)
It seems all that matters in EU competition law recently is effects based, even if we talk about fundamental rights protection...