Marcus Glader, Jan 07, 2011
DG Competition has recently published three draft guidance papers setting out best practices for antitrust proceedings. The aim is to enhance transparency and predictability in the Commission’s proceedings, while ensuring the efficiency of investigations into suspected competition law violations. This article focuses on the Commission’s Best Practices on the conduct of proceedings concerning Articles 101 and 102 TFEU (the Best Practices) and considers potential improvements regarding access to documents and information in the Commission procedure.
The Commission has developed a number of practices to increase both efficiency and transparency during the investigative phase; these have now been fleshed out in the Best Practices. These practices include different kinds of meetings and disclosure of key submissions prior to the Statement of Objections (“SO”), thereby providing the parties concerned with some insight into the investigation and allowing them to express their views at an early stage in the proceedings. Nevertheless, the Commission could do more within the current institutional structure, in particular, to increase transparency and due process in the critical phase between SO and the Commission’s decision. The Competition Commissioners and other Commission officials have often emphasized that due process is safeguarded since there are a number of “checks and balances” and that the decision is ultimately made by other people than those involved in the investigation. Against this background, two particular suggestions for further improvement will be made. First, the Commission should let the company under investigation (the defendant) have continuous access to the file from the SO until it has finalized the draft decision. The defendant then knows what is being submitted to the Commission and is given the opportunity to respond prior to the decision being made. Second, the defendant should be given access to, and the opportunity to comment on, key documents drawn up within the Commission during this critical phase.DG Competition has recently published three draft guidance papers setting out best practices for antitrust proceedings. The aim is to enhance transparency and predictability in the Commission’s proceedings, while ensuring the efficiency of investigations into suspected competition law violations. This article focuses on the Commission’s Best Practices on the conduct of proceedings concerning Articles 101 and 102 TFEU (the Best Practices) and considers potential improvements regarding access to documents and information in the Commission procedure.
A brief comparison will be made to how similar procedural issues are handled by the Swedish Competition Authority (“SCA”). This is relevant since the Swedish system involves an institutional structure with a division between the investigator (the SCA) and the adjudicator (the Stockholm City Court) and far-reaching transparency (under the principle of public access)-two aspects that have often been criticized as missing in the current Commission procedure.
