On 17 October 2011, the European Commission released a new Notice on Best Practices which apply to the way the Commission conducts proceedings for anti-competitive conduct and misuse of market power. The clarification provided on access to the competition regulators file is particularly significant in light of recent Australian cases.

The Notice is directed towards improving understanding of the Commission’s investigation process and ensuring that parties are kept informed of the issues they need to address and the progress of any proceeding against them. The documents cover a range of issues, including by providing:

  • a practical description of the way cases progress through the various phases of investigation and prosecution
  • for parties to get earlier and clearer information regarding the issues being investigated
  • for ongoing meetings between parties and the Commission to facilitate transparency, full understanding of the investigation and issues, and give greater opportunities for cooperation and efficiency
  • improved transparency of decisions by publicising the opening of investigations and rejection of complaints
  • for greater information in the Statement of Objections of the main parameters for the possible imposition of fines, and
  • greater power and clarity to the office of Hearing Officer, who provides procedural safeguards on behalf of the parties

The Notice also clarifies the rights and abilities of the parties to get access to the file held by the Commission. The European Commission has been criticised in the past that its processes resulted in procedural unfairness to defendants. This was addressed in 1997 and again in 2005 by way of a Notice on Access to File, which sets out practical provisions on access and provides for the categories of documents which will be made available.

The Best Practices Notice does not alter the practical aspects of access provided for by the existing Notice on Access to File, but does clarify that it is the Directorate General for Competition who has responsibility for granting access, and the Hearing Officers who are empowered to decide disputes between the parties, information providers and the Directorate General over access.

While the Notice emphasises that efficient access to the file depends on the cooperation of the parties, it also provides for negotiated disclosure to a restricted circle of persons as well as data-room procedures to facilitate the exchange of confidential information between parties. The Notice also addresses record keeping issues by setting out when and how meetings will be recorded as part of the file. Significantly, the Notice makes a clear effort to state that the Commission will respect genuine requests for confidentiality in order to protect legitimate interests and avoid discouraging information providers from coming forward to the commission.

The ACCC has been resistant to providing access to documents collected as part of its investigations, largely on the basis that providing those documents risks discouraging cooperation.  In this regard, see further the article by Ben Kiely.