The European Commission adopted on 17 October 2011 revised guidance on what to expect at the various stages of an EU antitrust investigation (such cases involve the EU prohibitions on restrictive agreements and/or abuse of dominance). This replaces the draft guidance on which the European Commission consulted in January 2010 (see our earlier law-now). Certain parts of the guidance also apply to EU merger cases.
The revised guidance adopted comprises:
- Best practices on the conduct of antitrust proceedings
- Best practices on the submission of economic evidence (applies to merger cases as well as antitrust cases)
- A decision on the function and terms of reference of the Hearing Officer (applies to merger cases as well as antitrust cases)
The revised guidance is aimed at increasing the transparency and fairness of competition proceedings and takes into account the European Commission’s experience to date in applying the EU competition rules, as well as responses to the January 2010 consultation. It now covers points such as:
- the statement of objections will give parties an idea of the parameters the European Commission will use in calculating any fines to be imposed;
- extending state of play meetings to cartel cases and to complainants in specific circumstances;
- enhanced access to “key submissions” of complainants or third parties, such as economic studies, prior to the statement of objections
- publicising the rejection of complaints, either in full or in summary
- the hearing officer will now be able to intervene during the investigatory phase of antitrust and certain merger proceedings
- the hearing officer has a new function in resolving issues regarding whether information is covered by legal professional privilege
- parties will be able to refer issues regarding possible self-incrimination to the hearing officer
- the hearing officer will be able to intervene in disputes about the extension of deadlines for responding to information requests by the European Commission.
The guidance also covers the procedure for the closure of cases due to the parties providing commitments which allay the European Commission’s competition concerns.
The guidance is generally to be welcomed. The access to key submissions of complainants/third parties noted above is enhanced because it occurs before the statement of objections, whereas access to the file normally takes place once the statement of objections has been issued. The European Commission believes that this earlier access may facilitate the assessment of the case. The European Commission notes that “key submissions” “would include significant submissions of the complainant or interested third parties but not, for example, replies to requests for information”.