Commission improves procedural rules in competition proceedings with a notice on best practices and a decision on the functions of the role of the hearing officer.
The European Commission has adopted a package of measures aimed at strengthening the mechanisms for safeguarding parties' procedural rights in competition proceedings.
Draft antitrust best practices were published in January 2010 for consultation and have been provisionally applied since then. The final version of the best practices as well as a decision of the president of the Commission on the functions and terms of reference of the hearing officer in certain competition proceedings entered into force in October 2011.
The Reforms, of which there are many, can be divided for ease into three:
1.reforms which increase access to information providing parties with a clearer picture of what to expect at different stages of an anti trust investigation;
2.reforms which enhance the role of the competition hearing officer who acts as the guardian of procedural rights in competition procedures; and lastly
3.reforms which increase the guidance offered to parties regarding the presentation and content of economic and econometric analysis.
Increased Transparency
Most notably, the best practice notice provides for the following in an effort to increase transparency as well as the ability of parties to interact with Commission services:
•Informing parties in the Statement of Objections of the main relevant parameters for the possible imposition of fines;
•Extending state of play meetings to cartel cases and complainants in specific circumstances;
•Enhanced access to "key submissions" of complainants or third parties, such as economic studies, prior to the Statement of Objections;
•Publishing rejection of complaints, either in full or as a summary.
Enhanced role for the Hearing Officer
The competition hearing officer is to have an enhanced role throughout the entirety of antitrust proceedings with the aim of increasing fairness.
It was always intended that the role of the hearing officer would be that of an independent arbiter in disputes between the case teams and the parties, but this has now been made more explicit. Additionally, greater powers of intervention have been attached to the role. Generally speaking, parties which offer commitments or are involved in cartel settlement procedures will be able to call upon the hearing officer at any time in relation to the effective exercise of their procedural rights.
By way of more specific examples:
the hearing officer may now intervene when a company considers that it has not been informed of its procedural status;
when there are disputes about the extension of deadlines to reply to information requests under Article 18(3) of the Antitrust Regulation 1/2003 or
where disputes arise about whether or not certain documents attract legal professional privilege.
Even during the investigatory phase of antitrust proceedings, the hearing officer may now intervene as under the new reforms parties are expressly admitted to refer matters to the hearing officer where they feel that they should not be compelled to reply to questions that might force them to admit to an infringement (self-incrimination).
This recently extended role will greatly facilitate disputes about such claims and hopefully avoid unnecessary litigation. Moreover, once litigation is underway, the hearing officer may continue to provide help and support.
For example, he/she may take all appropriate measures to prepare the oral hearing such as identifying beforehand the focal areas of debate thus ensuring parties develop their arguments at the hearing effectively.
Best Practices On Submission Of Economic Evidence
The package of recent measures also includes further developments to the best practices on submission of economic evidence by outlining the criteria economic and econometric analysis should fulfil explaining in greater detail how these will be dealt with.
From now on, sound but imperfect economic evidence that does not strictly meet the standard set out in the Best Practices will not be discarded, if the alternative is to rely on other economic evidence that is not subject to similar standards.
Parties should consult the Commission as early as possible to discuss the most suitable checks to be applied to a given methodology and more specific guidance on consumer surveys is included to ensure that such evidence meets certain minimum standards.
Entry Into Force
The notice on antitrust best practices and the best practices on the submission of economic evidence apply to future and pending cases as of 20 October 2011, whereas the revised mandate of the hearing officer entered into force on 21 October 2011.
