Brussels, 17/10/2011 (Agence Europe) - On Monday 17 October, the European Commission adopted a series of measures aimed at reforming its antitrust procedures. It thus plans to: - increase transparency of proceedings and improve information for the parties involved, to keep them informed of what they can expect at the different stages in the investigation and, where necessary, how commitment procedure is used; - give parties the possibility of interacting with Commission services throughout the proceedings in order to make the unfolding of those proceedings more fluid; - and ensure respect of the parties' procedural rights by giving them the possibility of referring the matter, in cases of litigation, to an independent hearing officer for competition cases, who will play a greater role throughout the proceedings with a view, in particular, to preventing or resolving potential disputes between the parties and the Commission. The package of measures is based on three factors:
Notice on best practices in antitrust proceedings. The notice is a non-binding document that aims to improve an earlier project presented in 2010 taking into account comments from the interested parties gathered during consultation, and to establish systematic practice with regard to antirust investigations. The key improvements introduced are to: - inform parties, from the moment of the statement of objections, of the main relevant parameters for the possible imposition of fines (value of sales allocated by infringement, periods considered in order to determine the value of these sales, etc), to allow the parties to prepare their arguments with a view to the hearing and to provide possible information; - extend state of play meetings to cartel cases and complainants in specific circumstances; - enhance access to “key submissions” of complainants or third parties, such as economic studies, prior to the statement of objections, so that the parties are better placed when it comes to understanding the suspicions raised against them at the investigation phase; - and publish complaint rejections, either in full or as a summary.
Revision of the hearing officer's mandate. The hearing officer is an independent person responsible for ensuring parties have the right to be heard in antitrust and merger proceedings before the Commission. The new mandate will allow him/her to intervene from the outset of the investigation in the case of concentrations and, at a later stage in the review, in the case of cartels and abuse of dominant position (essentially in order not to hamper the investigation due the number of parties involved). Thus, from the investigation stage, the hearing officer should: - resolve issues regarding the confidentiality of communications between companies and their external lawyers (legal professional privilege or LPP), being able to give an opinion regarding the possibility whether a document should come under the principle of confidentiality and, in the case of dispute, address a substantiated communication in this respect to the competition commissioner, with the Commission taking the final decision as a last resort; - intervene when a company considers that it has not been informed of its procedural status in the context of an antitrust inquiry, or that it is not obliged to answer questions which could force it to acknowledge infringement; - intervene in the case of disputes concerning the extension of deadlines to reply to information requests under Article 18(3) of the Antitrust Regulation 1/2003. During hearings, moreover, the hearing officer is empowered to take all appropriate measures to allow the parties to develop their arguments effectively. Also, the new mandate expressly empowers parties to refer matters to the hearing officer in antitrust commitment procedures.
Best practices on the submission of economic evidence. A guide to best practices aims to rationalise the presentation and assessment of elements of proof. It sets out the criteria that every economic and econometric analysis must meet and explains the way such analyses will be treated.
The new procedural package will be operational as soon as it is published in the Official Journal but there are transitional provisions regarding investigation measures begun before entry into force of the new mandate for the hearing officer and regarding his/her obligations to report in cases opened before that date. (FG/transl.jl)