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Legal Professional Privilege and the Privilege Against Self-Incrimination in EC Law: Recent Developments and Current Issues - Chapter 27 - International Antitrust Law & Policy: Fordham Corporate Law 2004
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International Antitrust Law & Policy: Fordham Corporate Law 2004 - Hardcover International Antitrust Law & Policy: Fordham Corporate Law 2004 - PDF ___________________________________________________________________________________ Preview Page Chapter 27
LEGAL PROFESSIONAL PRIVILEGE AND
THE PRIVILEGE AGAINST SELFINCRIMINATION
IN EC LAW: RECENT
DEVELOPMENTS AND CURRENT ISSUES
Bo Vesterdorf†
In 1989 my former colleague David Edward delivered a brilliant
speech at the Fordham conference about “Constitutional Rules of
Community Law in EEC Competition Cases.”1 He concluded by noting
that “the number of competition cases in which the Court [of Justice of the
European Communities] has sustained an argument based on
fundamental rights is very small indeed” but that it was not “too late to
bring out the big guns of constitutional artillery.”2
Fifteen years later, following substantial modifications of the
enforcement scheme of EC competition law, it remains interesting to
inquire how the “big guns” have shaped EC competition law and, in
particular, whether their number and range have somehow evolved.
In that regard, it is difficult to escape the conclusion that the
fundamental rights artillery has developed and evolved substantially
over the years. The rhetoric of fundamental rights or principles in
competition cases pervades a significant number of areas such as the
rights of the defence, the prohibition of double jeopardy and the
prohibition of arbitrary and disproportionate investigations. However,
given that the theme of this conference is “Rights, Privileges and Ethics
in Competition cases,” I will focus my contribution on two distinct
limitations on the Commission’s investigative rights in competition
proceedings, namely (i) legal professional privilege and (ii) the privilege
against self-incrimination.
About the Editor:
Barry Hawk, Director, Fordham Corporate Law Institute; Professor of Law, Fordham University and Partner, Skadden Arps Slate Meagher & Flom (New York and Brussels)
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