10 Colum. J. Eur. L. 137 (2003)
An Hertogen.lawyer at the Brussels Bar (Linklaters) and assistant at the Institute for European Law, Katholieke Universiteit Leaven, Belgium, during the 2002-2003 academic year. LL.M Candidate 2004, Columbia Law School, New York.
According to article 85 EC, the European Commission (hereafter”Commission”) has to “ensure application of the principles laid down in articles 81and 82 EC”; the two basic provisions of EC antitrust law prohibiting respectively restrictive agreements and the abuse of a dominant position. To enforce these provisions, the Commission can, if certain conditions are met, conduct investigations at the premises of an undertaking allegedly involved in anti-competitive practices.
If, however, the Commission wishes to use coercive measures during these investigations, the assistance of the national authorities is required. In principle, the conditions under which the assistance is accorded are defined by the national law of the Member States, and many of them provide for a prior judicial review. In reality, however, the Court of Justice determined in 1989 that the powers of a national judge are not unlimited.
Since 1989, the European Court of Human Rights has, for its part, gradually expanded the scope of protection accorded by article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter “EC-R”) to the home and private life. In the light of these evolutions, the French Cour de Cassation asks the European Court of Justice whether the limits it defined in 1989 should not be reconsidered.
The annotated case raises questions on the limits of control to be exercised by a national judge when ruling on coercive measures and on the interaction between EC law and fundamental rights conferred by the European Convention on Human Rights.
