16 May 2012
On 30 March 2012, the European Commission published its Antitrust Manual of Procedures, comprising internal working documents on the procedures relating to the scope of a competition investigation for the application of Articles 101 and 102 of the Treaty on the Functioning of the European Union ("TFEU").
The Commission considers that the Antitrust Manual or "ManProc" is complementary to the "Best Practices" it published in October 2011. It emphasises that the Manual is a practical working tool intended to provide internal guidance to staff. It is being published in the interests of transparency and does not create or alter any rights or obligations under the competition rules.
The disclosure of the ManProc follows a recommendation by the European Ombudsman, who had to examine a refusal by the Commission to disclose internal documentation on its proceedings in antitrust cases further to a Regulation 1049/2001 request. Regulation 1049/2001 foresees ccess by the public of documents held by the EU institutions, with some exceptions. In October 2011, the European Ombudsman accepted that the Commission had been entitled to refuse access to certain parts of the internal manual on the grounds that disclosure would
reveal its investigatory strategy and so undermine the purpose of investigations and its decision-making process. However, it provisionally concluded that the Commission should have made, at least, partial disclosure and its failure to do so constituted an instance of maladministration.
In response the Commission has produced a publicly disclosable version of the internal manual, the Antitrust Manual of Procedures ("Antitrust Manual"), comprising internal DG Competition working documents on procedures.
The Commission explains that the Antitrust Manual is an internal working tool intended to give practical (but not complete or exhaustive) guidance to DG Competition staff on how to conduct an investigation applying Articles 101 and 102. It does not contain binding instructions for staff, and the procedures set out in it may have to be adapted to the circumstances of individual cases.
The ManProc covers the internal Commission procedures relating to the scope of a competition investigation including initiating proceedings, requests for information, conducting interviews, dealing with leniency applications, drafting and issuing statements of objections, granting access to the file, the commitments procedure, reaching final decisions, and post-decision matters such as litigation and publication of decisions.
The Commission is currently also preparing additional chapters on sector inquiries (Article 17 of Regulation 1/2003) and remedies and fines (Article 23 of Regulation 1/2003, and relevant Commission Notices).
The document published does not contain any information on the Commission's internal procedures relating to conducting inspections or in its prioritisation of which cases to pursue, which was deemed sensitive internal information the disclosure of which could undermine the successful conduct of future investigations.
However, the move to publish a version of the Manual has not spelt the end of the dispute. Only weeks after the Manual was made available publically, the European Commission has received further requests for access to its full ManProc.
