On 30 March 2012 the European Commission published its "Antitrust Manual of Procedures" (ManProc). The document serves as an "internal working tool" for Commission staff when conducting investigations under Article 101 (the cartel prohibition) and Article 102 (the prohibition of abuse of dominance) of the Treaty on the Functioning of the European Union ("TFEU").
The publication of ManProc marks the end of two years of resistance by the Commission to publish this internal guide. Early 2010, a request for publication of the document was submitted to the Commission. The Commission initially refused disclosure of the document indicating that it would reveal its "investigative strategy". Instead it referred to the upcoming publication of its 'Best Practices on the conduct of proceedings concerning Articles 101 and 102 of the TFEU' which would provide sufficient transparency with respect to its way of working in these investigations. After intervention from the Ombudsman however, the Commission decided to partially disclose ManProc. With approximately half of the original version of ManProc published, the remaining pages continue to be the subject of requests for disclosure.
ManProc contains 28 "modules" describing the Commission's way of working in the context of various aspects or stages of the relevant investigations. The modules cover topics such as the cooperation of the Commission with other stakeholders (National Competition Authorities, national courts, third countries), the various procedural phases within the investigations and on various decisions that can be taken in the course of the investigations (prohibition decisions, commitment decisions, interim decisions etc.). Further, ManProc deals with some of the specific powers of the Commission for instance its power to issue requests for information, its power to take statements and its power to impose fines and periodic penalty payments. Finally, the handling of complaints, use of languages and the publication of decisions are discussed.
While not containing any binding substantive or procedural rules (according to an explicit remark made in the introduction), Manproc consolidates previous experiences gained by the Commission when conducting investigations as well as case law. Laying down these experiences and rules sanctioned by the European courts in an internal document for staff clearly has the intention to structure and guide the Commission officials in their actions and decisions in the future. It is mainly for this reason that ManProc may prove valuable for in-house and outside counsel.
By way of example, the section on leniency applications expresses that the Commission in providing its services "should remain neutral in their contacts with undertakings. They do not favour one undertaking over another in terms of treatment under the Leniency Notice." Although the same would follow from general principles of administrative diligence (and - arguably - case law), it is nevertheless a positive sign that such statements are actively communicated to staff. Furthermore, it is not entirely excluded that such phrases may under certain circumstances bear relevance in court proceedings. In addition, the detailed internal steps to be followed by the Commission in the event of receipt of a leniency application provide welcome guidance especially in view of the importance for the parties involved.
It remains to be seen whether the continued efforts to realise additional disclosure will lead to more noteworthy results.