Best practices: the European Commission reforms procedures in antitrust cases

In October 2011, the European Commission agreed a package of measures concerning the investigation of cartels and abuses ofdominant position, and adopted recommendations aimed at enhancing transparency and increasing the predictability of cases.

A Commission notice was approved on the best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU, published in the Official Journal on 20.10.2011¹: This notice consolidated certain guidelines that were already followed by the Commission and introduced some important features as the result of a public consultation during 2010.

Best practices to be implemented in the course of antitrust proceedings include measures such as:
(i) making public the opening of proceedings, through a press release and publication on the DG Comp website;
(ii) holding State of Play meetings between the Commission and the parties subject to the proceedings at key stages (including the possibility of ‘triangular meetings’, inviting the parties and, eventually, the complainants and/or third parties); or
(iii) providing the parties, at the early stages of an investigation, with access to a non-confidential version of the complaint (or of other “key submissions” in the file, such as economic studies, for example).

The notice further incorporates several measures to strengthen the publicity and transparency of proceedings initiated by the Commission, with emphasis on:
(i) providing the parties, in the statement of objections, with the main elements relevant to the calculation of possible fines (including the relevant sales figures and years to be considered); and
(ii) publication on the DG Comp website of decisions to reject complaints (if the complaints are not withdrawn following the Commission’s preliminary negative conclusion).

In addition to this best practices notice, a Decision was also adopted widening the scope of the Hearing Officer’s functions², in the context of its duty to safeguard the effective exercise, by the parties subject to proceedings and other interested parties, of their procedural rights in antitrust cases.

The hearing officer’s functions cover a wide range of matters, including the power to:
(i) resolve issues concerning legal professional privilege and the confidentiality of attorney-client communications;
(ii) assess situations where the addressee of a request for information refuses to reply to questions invoking the privilege against self-incrimination; or (iii) decide on requests for an extension of the time limits for replying to a decision requesting information.

Furthermore, from now on, the hearing officer will have additional powers in the preparation and organization of oral hearings in cases concerning Articles 101 and 102 TFEU and in merger proceedings, and will also be required to prepare an interim and a final report on the effective exercise of the procedural rights of the undertakings involved.

These changes brought about by the Commission seek to reinforce the parties’ rights of defense in antitrust cases, encouraging their participation throughout the proceedings and contributing to greater transparency.

This article was written by lawyer Gonçalo Machado Borges.

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