Dawn Raids : The Investigated Company’s Rights in The Antitrust Procedure and Article 6 and 8 of The European Convention on Human Rights

The Commission can investigate infringements of the competition rules on its own initiativeor after a complaint from a third party when it suspects the existence of a cartel under Article81 or abuse of dominant position under Article 82. The EC Commission has extensiveinvestigatory powers under Regulation 1/2003 Articles 18 and 20. The visits by theCommission are made unannounced and that’s why they are popularly known as ”dawnraids”. The surprise arrival is essential in the fact-finding process because the Commissionlooks for information, which the undertaking subject would rather not give to the Commissionand takes measures to hide. The Commissions powers during a ”dawn raid” have been subjected to criticism. Althoughthe criticism existed while Regulation 17/1962 was applied it can be noted that theCommissions powers haven’t been changed with the regulation 1/2003. The principle ofproportionality is valid in the antitrust procedure. That means that the Commission measurescan’t exceed what is necessary to achieve the objective of the inspection. Even though the Commission is due to respect the principle of proportionality neverthelesshas the undertaking subject often contested the Commissions exercise of its powers. In severaloccasions the company who has been submitted to a dawn raid has claimed in the EuropeanCourt of Justice (ECJ) that it’s fundamental rights, which are assured by Articles 6 and 8 ofthe European Convention on Human Rights (ECHR) had been infringed during theinvestigation. The question that arises is if article 6 and 8 ECHR can be claimed in theantitrust procedure and if it’s possible to reconcile the protection of the company in theantitrust procedure with human rights. The focus of this thesis is on these questions