PRIVILEGE AGAINST SELF-INCRIMINATION: THE DILEMMA OF APPROPRIATE STANDARDS IN COMPETITION LAW

Abstract

The procedures of the European Commission regarding privilege against self-incrimination and its application in competition law proceedings have come under intense scrutiny, yet there has been little analysis of how it is applied in national proceedings. What analysis there is has been confined to how the standards developed by the Court of Justice of the European Union are applied, with little or no reference to the case law of the European Court of Human Rights. In the context of Lithuania and its legal practises, this article presents an analysis of privilege against self-incrimination from the perspective of Lithuanian procedural rights of the administrative process, human rights, and the European Union law. It finds that neither case law of the European Court of Human Rights nor the European Court of Justice of the European Union provide a definitive answer on the implementation of privilege against self-incrimination in competition law proceedings, since undertakings and employees may have a different status in the procedure in order for different guarantees to be applied. Thus, a systematic approach should prevail with national authority applying these standards, taking into consideration distinct features of both competition law and national administrative law.