ECHR confirms that antitrust procedures have a criminal nature for the purpose of Article 6 of the ECHR regarding the right to a fair trial

Introduction

The European Court of Human Right (ECHR) in the judgment rendered in September 27, 2011, case Menarini Diagnostics S.R.L. vs. Italy, complaint 43509/08, confirmed the application of Article 6(1) of the European Convention of Human Rights (Convention), regarding the right to a fair trial in criminal cases, in competition law procedures.

The Court has interpreted Article 6 broadly in terms of its respective application to sanctionary procedures (including disciplinary and administrative proceedings), on the grounds that the provision entails a fundamental importance to the operation of democracy: “In a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6 (1) would not correspond to the aim and the purpose of that provision.”¹

Case Background

Menarini is an Italian pharmaceutical company based in Italy. In 2001 the Autorità Garante della Concorrenza e del Mercato (AGCM), the independent Italian competition authority, investigated the company for the alleged breach of antitrust rules. In a decision of 30 April 2003, AGCM fined the company 6 M€ for price fixing and market sharing in the national diabetes diagnosis test market. All the defendant company’s appeals against that decision were rejected. Relying on the referred article of the Convention, regarding the right to a fair trial, Menarini submitted a complaint before the ECHR stating that in the Italian jurisdiction it had no access to a court with full jurisdiction, as the national court review was apparently restricted to verifying the legality of the AGCM decision. Thus, under this legal and factual framework, the company maintained in the complaint that Italy had breached Article 6 of the Convention.

The court confirms the application of article 6 to antitrust proceedings

The decision of the ECHR of September 27, 2011, confirmed that the procedure against Menarini in the Italian jurisdiction had a “criminal nature” for the purpose of Article 6 of the Convention. The elements taken into account by the court to determine whether the procedure had a criminal nature, based on settled case law, were: (i) the classification of the infringement by the national legislation; (ii) the nature of the offence; and (iii) the nature and severity of the applied penalty.

The infringement was formally qualified by the domestic legislation as having an administrative nature and not criminal, but this criterion was not determinant for the ECHR. In relation to the nature of the infringement, the court stated that the application of competition rules by a competition authority affecting the general interests of economic agents has already been held to be criminal for the purpose Article 6. In addition, the amount of fine applied to Menarini and the respective deterrent effect led the ECHR to determine that the sanction had a criminal nature.

In this context, we recall what the ECHR has stated in the case of Engel and others v. the Netherlands for the purpose of applying Article 6: “If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a “mixed” offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 would be subordinated to their sovereign will. A latitude extending this far might lead to results incompatible with the purpose and object of the Convention.”²

Notwithstanding the fulfillment of the admissibility criteria regarding the complaint – as Article 6 of the Convention was considered applicable to Menarini’s case –, the European Court of Human Rights considered that the Convention had not been infringed by Italy, as the Menarini case was assessed at the national level by a judicial court with full jurisdiction to review the administrative decision.

Comentário

The “Menarini” ruling of the European Court of Human Rights paves the road to a material and significant enhancement of a company’s rights of defense in antitrust cases based on Article 6 of the Convention and on the respective seminal case-law of the European Court of Human Rights which materializes in a detailed manner the principles associated with the due process of law.

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