Cracks in the Finish: Affirming Fundamental Rights in the Cement Cartel Case

May 25, 2016

CPI Europe Column edited by Anna Tzanaki (Competition Policy International) & Juan Delgado (Global Economics Group) presents:

Cracks in the Finish: Affirming Fundamental Rights in the Cement Cartel Case  by Kyle Le Croy[1] (Sidley Austin LLP)

Intro by Juan Delgado (Global Economics Group)

How much disclosure can the European Commission request from the investigated parties? A recent decision by the Court of Justice of the European Union puts this question on the table but, according to Kyle Le Croy, it does not provide a satisfactory answer to it. The HeidelbergCement judgment rightly identifies the need to put limits on the discretionary power of competition authorities to request information but “falls short in missing what should have been an overwhelming vindication of the limits of the discretionary power of institutions in the EU”.

In quashing a European Commission (“Commission”) decision that had required a party under investigation to make excessive disclosures, the Court of Justice of the European Union (“CJEU”) affirmed in a recent judgment that certain fundamental protections which apply in the context of Commission dawn raids also apply in the context of Commission requests for information.

This affirmation is welcome, of course. Yet the judgment itself falls short of affording the clarity and judicial scrutiny appropriate to cases alleging interference with the same fundamental rights which the judgment purports to prote