On 17 October 2011 the European Commission (‘Commission’) has adopted a package of measures aimed at increasing the transparency and fairness of competition proceedings. The package consists out of best practices guidelines on the conduct of antitrust proceedings, best practices for the submission of economic evidence and data collection, and a revised hearing officer mandate.
In January 2010 the Commission presented a draft best practices document. Interested parties were invited to comment on this draft document. The Commission took those comments into account when drafting the new documents of the package. On 17 October 2011 it published the new package of best practices and a revised hearing officer mandate.
The Commission published the best practices to increase interaction with parties in antitrust proceedings and strengthening the mechanism for safeguarding parties’ procedural rights. With the best practices the Commission hopes that it gives parties a clear picture of what to expect during the different stages of an antitrust procedure. In addition the Commission would like to give parties the increased ability to interact with the Commission services. Key improvements of the best practices are for example that the Commission will now publish the rejection of complaints, either in full or as a summary. This means that not only the parties involved but also third parties can take notice of the rejection of a complaint. In addition, the Commission will from now on inform parties already in the Statement of objections about the main relevant parameters for the possible imposition of fines. During a Commission investigation parties receive first a Statement of Objections before the Commission publishes a decision. In the Statement of Objections the Commission sets out the suspicions it has against the undertaking involved. Until now it is does however not provide information about the amount of the fine. This will partly change now the Commission has indicated it will at least provide the main relevant parameters for the possible imposition of fines.
The package also contains a document that describes the expanded and strengthened role of the hearing officer. The hearing officer is independent from the case handling services and safeguards the procedural rights during antitrust procedures. If parties in an antitrust procedure for example have a dispute about their procedural rights they can turn to the hearing officer with their complaint. The hearing officer already existed before the publication of the new hearing officer’s mandate, however the hearing officer has new functions. One of the important new functions of the hearing officer is that it resolves issues regarding the confidentiality of communications between companies and their external lawyers (so called legal professional privilege). The Commission is not allowed to read this communication. However it happens often that a dispute arises between the Commission and the undertaking being investigated about the documents which are according to the undertaking legally privileged and which the Commission disputes. Those disputes will be resolved by the hearing officer. Under the new mandate parties are also allowed to refer matters to the hearing officer if they feel that they should not be compelled to reply to questions that might force them to admit an infringement.