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The Balance Between Effectiveness and Fundamental Rights Protection in the Law and Enforcement of Article 101 TFEU journal article

Baskaran Balasingham

European Competition and Regulatory Law Review, Volume 3 (2019), Issue 4, Page 363 - 370

Effectiveness and due process require careful balancing in order to safeguard a workable enforcement environment. On the one hand, the legal qualification of collusive conduct has been facilitated to some degree by a broad interpretation of Article 101(1) TFEU and the use of presumptions. On the other hand, the burden and standard of proof, as well as the judicial review in relation to EU cartel proceedings satisfy the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR). This article argues that the EU Courts have succeeded in establishing a proper balance between effective cartel enforcement and the protection of fundamental rights. Keywords: Article 101 TFEU, Cartel Enforcement, Effectiveness, Fundamental Rights, Judicial Review


15 Years after Courage v Crehan: journal article

The Right to Damages under EU Competition Law

Baskaran Balasingham

European Competition and Regulatory Law Review, Volume 1 (2017), Issue 1, Page 11 - 25

15 years ago the Court of Justice of the European Union created the right to damages for the infringement of EU competition rules. While the right to damages can fulfil a compensatory and a deterrent function for a long time it was not clear what the primary objective of the EU right to damages is. The answer to that question is of relevance to the interaction between public and private enforcement, particularly with respect to the relationship between the access to leniency documents for private claimants in follow-on actions for damages and the protection of the EU leniency programme. If the EU right to damages is about effective judicial protection this would mean that its objective is compensation and private claimants should be granted access. If, on the other hand, the EU right to damages is about effective enforcement of EU law, then this would point to deterrence as the primary objective. Balancing these two interests can lead to more complementarity between public and private enforcement, which in turn can enhance overall enforcement.

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