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Arianna Andreangeli, Jul 15, 2015
The question of the compliance of the framework and the procedures for the enforcement of the EU competition rules with human rights’ rules has been a vexed subject for many years. In that context, whether and how the European Union should become a party to the European Convention on Human Rights has been also hotly discussed.
In 2013, following a complex period of negotiations, a Draft Accession Agreement was submitted to the Court of Justice of the EU to obtain an opinion pursuant to Article 218(11) TFEU. The Draft Agreement had envisaged a series of arrangements designed to address issues of passive standing of the Union before the European Court of Human Rights and the possible involvement of the EU judiciary in respect of claims involving the Union and lodged in Strasbourg.
However, the CJEU ruled at the end of 2014 that the agreement, as it stood, did not comply with a number of founding principles of EU law, namely the principle of supremacy of EU law over domestic norms, the rules governing the inter-institutional architecture enshrined in the Founding Treaties, and—in that context—the judicial independence enjoyed by the same Court of Justice, especially in discharging its role vis-à-vis the domestic courts in the context of the preliminary reference procedure.
This brief paper aims to investigate some of the implications of accession for the public enforcement of the EU competition rules. It will review the 2014 Opinion and consider how the human rights’ scrutiny of inspections ordered by the Commission and carried out either directly or via the assistance of the competent NCAs could be conducted post-accession. It will argue that any future arrangements should encompass robust mechanisms to ensure that the “Union interests” are taken into account and the primacy and coherence of Union law is maintained, even in cases involving domestic authorities acting within the scope of EU law.
