The right to a fair trial : the application of article 39(1) of the Constitution and Article 6(1) of the ECHR to Competition Law proceedings

Abstract

Fundamental rights and competition law may no longer be viewed as two separate legal spheres. Accordingly, the application of the fundamental right to a fair trial to competition law proceedings should no longer be disputed. This is made mandatory by the very dicta emerging from the rule of law. That being said, the position, both under EU, as well as under Maltese competition law, remains one which classifies such proceedings as falling under the ―administrative‖ regime; thus, implying that the procedural safeguards under Article 6 of the European Convention on Human Rights and Article 39 of the Maltese Constitution, are irrelevant in this regard. The aim behind this Paper is to outline how the current classification, both at EU level, and even more so, at the domestic level, presents a false picture of the antitrust regime. This is highlighted through consideration of particular factors, particularly, the inherent nature of the act, the penalty risked, and the attaching stigma – all suggesting that competition law proceedings are criminal in nature. The establishment of the criminal nature of the proceedings would automatically render Article 6(1) ECHR and Article 39(1) of the Constitution applicable. The emerging implications of such a statement visà- vis the right to a fair trial under Article 6(1) ECHR shall be examined. This shall be followed by attention to the procedural requirements under Article 39(1) of the Constitution, which are more rigorous than the requirements under Article 6(1) ECHR. This point has been one of the main claims which led the Court, in the recent Federation of Estate Agents judgement, to pronounce that the present competition law enforcement system amounts to an erosion of the fundamental rights of companies; a claim which leads to the conclusion that the amendments introduced via Act VI of 2011 to the Competition Act, are unconstitutional.