Dutch Judge at the European Court of Human Rights (Photo by Adam Lang)
A friend of mine recently commented that it seems like everything is a human right these days. He may be on to something. Case in point: Earlier today Intel appealed a landmark antitrust fine imposed on them by the European Union on the basis that the fine violated the company’s human rights.
In May, the EU fined Intel a record-setting $1.45 billion dollars for violating EU antitrust law in the way the company used rebates to potentially penalize clients who purchased too many computer chips from their smaller rival, Advanced Micro Devices Inc. Intel is the world’s biggest computer chip maker and controls roughly 80% of the computer chip market. The fine against Intel came a few months after the EU levied a then-record setting fine of $1.35 billion dollars against the American software giant Microsoft for failure to comply with sanctions. When added to other fines levied by the EU against Microsoft, the total bill currently stands at roughly $2.5 billion.
So what does this have to do with human rights? Intel and a growing number of other companies argue that the EU method of investigating antitrust violations is contrary to European human rights law since it is a political appointee who oversees the investigation and decides guilt, therefore denying companies the right to present a defense in the same way they could in court. While the other 27 EU commissioners must sign off on the decision, insiders say that the decision of the antitrust commissioner is rarely questioned.
Furthermore, the massive size of recent fines suggests that the fines are “deterrent and punitive” and therefore implies that they are criminal in nature. Cases from the European Court of Human Rights in Strasbourg detail what constitutes a criminal case, and one factor is the severity of the punishment. Most common people would agree that billion dollar fines are quite severe. But criminal cases are overseen by an impartial tribunal and defendants are allowed to present a defense, two things guaranteed under European human rights law through the European Convention on Human Rights and two things that the current EU antitrust system lacks. This is expected to be the basis of Intel’s human rights claim.
As Ashby Jones over at the Wall Street Journal points out, the argument is more of one concerning due process rather than the typical human rights violations that often spring to mind. After all, this is not a case of false imprisonment or arbitrary execution, or using his examples, forced sterilization and prison torture. But due process is just as much of a human right as the right not to be unjustly arrested or forcibly taken from your home in the middle of the night. The presence of due process actually protects us from authority’s abuses and lends credibility to the punishment of human rights violators. But the question remains: do corporations, those slippery creations that both fall under and escape the rules of international law, have the right to due process in the human rights sense the same as individuals?
The argument appears to be gaining ground among some human rights advocates in Europe, but not everyone agrees. It is expected to be at least a year before the case is heard in front of the Court of First Instance in Luxembourg, and Intel’s exact arguments will not be known until then, since court files are sealed until the actual trial. But until then, the case will likely generate a substantial amount of debate among human rights practitioners, legal scholars, and the corporate world.
