There seems to be a clear trend of increased protection of ‘corporate human
rights’ and, more specifically, due process rights (or procedural fairness) in
the field of enforcement of competition law. To a large extent, that trend is
based on the uncritical extension of human rights protection to corporate
defendants by a process of simple assimilation of corporate and individual
defendants.
This new coauthored paper briefly explores the rationale behind the creation of due
process rights when the individual is the beneficiary of such protection. It
then goes on to critically assess if the same need exists for the extension of
those protections to corporate defendants, particularly in the field of
competition law or antitrust enforcement. It concludes with some warnings
concerning the diminishing effectiveness of competition law prohibitions and of
human law protection that can result from an overstretched conception of due
process protection in this area of EU economic law.
From a substantive perspective, this paper submits that the extension of human rights to corporations cannot be uncritical and should not be completely symmetrical to that for human beings; but that it rather needs to be necessarily adapted to their circumstances. To put it more bluntly, it is suggested that in the field of the enforcement of economic law, administrative law procedures should be sound and there should clearly be a strong system of judicial review in place, but corporations should not have access to broader constitutional or human rights protections and any perceived shortcomings in the design and application of those procedures should remain within the sphere of regulatory reform.
Sánchez Graells, Albert and Marcos, Francisco, “Human Rights” Protection for
Corporate Antitrust Defendants: Are We Not Going Overboard? (February 2, 2014).
University of Leicester School of Law Research Paper No. 14-04. Available at
SSRN: http://ssrn.com/abstract=2389715.