Competitive Enterprise Institute | 1899 L ST NW Floor 12, Washington, DC 20036 | Phone: 202-331-1010 | Fax: 202-331-0640
Intel's battle for the ages against the European Commission's antitrust regulators has a surprising new twist: Intel is claiming that its human rights were violated.
Yes, you read that correctly. Human rights. Intel is claiming that very large fines (€1,000,000,000 in this case, or $1,450,000,000) can only be handed down by a criminal court. And Intel was never actually charged with any criminal wrongdoing. The allegation that Intel threatened to withhold rebates from customers who also purchased AMD chips has been treated as a civil matter, not a criminal one.
The EU's antitrust investigations are an administrative process, not a legal one, like in the United States. Therefore, the European Commission violated the Intel corporation's human right to due process, or so the argument goes.
This has led to some ridicule. Intel is a corporation, not a human being, so how can it have human rights? Even Forbes described Intel's defense as "grasping for straws." A commenter at Ars Technica worried that "Any corporation that claims personhood for the purpose of asserting human rights opens a very scary Pandora's Box."
That line of thought deserves a closer look. To say that corporations should not have human rights is to deny corporations individual standing under the law. Without this convenient legal fiction, the global economy as we know it would cease to exist.
Sounds like hyperbole. It isn't. Intel, for example, has three million shareholders who collectively own the company. And those three million faces are constantly changing. More than fifty million shares of Intel stock change hands in an average day.
Now suppose your company wants to buy some computer chips from Intel. You could have each shareholder sign the sales contract - good luck finding them all - or you could treat Intel as a person with the right to sign a contract, and the obligation to honor it. To deal with one person or millions? That is why corporations have legal standing as individuals.
What if Intel violates the terms of that sales contract, bankrupting you and your family? If Intel doesn't have human rights, you can't sue it. Remember, you can only sue an entity with legal standing. Have fun tracking down all those shareholders again.
And make sure they're the ones who held shares during the life of that contract - if you wrongly sue a shareholder for violating something they didn't sign, they can sue you back. Righting a wrong becomes impossible. Denying corporations human rights makes corporate abuse more likely, not less.
When payroll comes around every two weeks for Intel's 83,500 employees, the same problem comes up yet again. Just give Intel the right to cut its own checks, then. Problem solved.
All of these individual trees are part of the same forest of corporate individual rights. To cut any one tree down weakens the rest. Cut too many down, and the forest disappears entirely. And with it, most of our modern economy.
Intel's human rights defense may sound a little unusual, but all it is doing is applying an uncontroversial, widely established principle in a way that people aren't used to. Despite its novelty, the tactic has been tried before in Europe. It's worked, too, though not yet in an antitrust case.
Article 34 of the European Convention on Human Rights says, plain as day, that "any person, non-governmental organisation or group of individuals" may seek redress of their grievances (emphasis added). Short of legal gymnastics, courts have to respect that.
In the U.S., media corporations routinely use human rights in their defense. The New York Times Co. won two Supreme Court cases by asserting its right to free speech.
Intel's appeal has one more point in its favor. It recently came out that antitrust regulators intentionally omitted "exculpatory evidence" from the case. At least one of Intel's major customers denied any coercion on Intel's part. If that had happened to a person, there would be no controversy. All defendants, whether human or corporate, have the right to due process.