Undertakings’ Right to Access Files in Competition Proceedings : Enforcement of Article 101 of the TFEU in the Light of the Rights of Defense and the Right to Good Administration

Abstract: The European Commission has extensive powers to investigate and enforce infringements of EU competition law. Its investigations under Article 101 TFEU may result in extensive fines amounting up to almost a billion euros. In these proceedings the Commission is entrusted with three roles which are usually difficult to combine within one and same institution. It conducts the investigations, decides on sanctions as well as it to a certain extent adopts the rules of conduct for its procedure. The Commission is entrusted with a margin of appreciation which to a certain extent limits the CJEU’s judicial review of its decisions. There seems to be a conflict between the need to protect business secrets and other confidential information and the investigated undertakings’ need to access information in the Commission file in order to effectively exercise their rights of defence. This study examines which protection of the right to access the Commission file undertakings, subject to investigation under Article 101(1) TFEU, have under the fundamental rights of European Union. The study examines the requirements relating to file access under the rights of defence as provided by Article 6 ECHR. The conclusions made are that undertakings’ right to access the Commission file in proceeding under Article 101 TFEU is protected under Article 41, 47 and 48 of the CFREU. The limitations of the investigated undertakings’ right to access the Commission file are not violating their rights of defence, as the Commission’s extensive powers are counterbalanced in several ways. An efficient control of the Commission’s use of its powers is however necessary to avoid a risk for abuse of the powers in question.