On 30 March 2012, the European Commission published its Antitrust Manual of Procedures (the so-called “ManProc”), which comprises internal working documents on the procedures concerning the application of Articles 101 and 102 TFEU.
The publication comes as a response to a decision of 3 October 2011 of the European Ombudsman, according to which it was provisionally concluded that the Commission was guilty of maladministration in failing to make at least a partial disclosure of its internal Antitrust Manual of procedures under Articles 101 and 102 TFEU (see VBB on Competition Law, Volume 2011, No. 10, available at www.vbb.com).
The original complaint to the Ombudsman originated in September 2009 when the complainant, a Brussels-based competition lawyer and former Commission official, made a request under Regulation 1049/2001 seeking access to the ManProc. Initially, in January 2010, the Commission had agreed to publish practical guidelines on the conduct of proceedings relating to cartel behaviour and abuse of a dominant position (the so-called "Best practices for antitrust proceedings", published in October 2011 – see VBB on Competition Law, Volume 2011, No. 10, available at www.vbb.com). However, the complainant was not satisfied with this disclosure, arguing that the ManProc contains critical information which has been excluded from the “Best practices” guidelines. In particular, he claimed that the disclosure of the ManProc was necessary to enable companies to grasp fully the duties of Commission officials and therefore assess whether these duties have been properly carried out in the course of antitrust proceedings. While the Ombudsman agreed with certain arguments put forward by the Commission (namely, that the ManProc contains sensitive internal information and guidance on dawn raids), it nonetheless upheld the complainant’s right to partial disclosure of the ManProc.
In the recently published Antitrust Manual of Procedures, the Commission explains that this document is an internal working tool intended to give practical guidance to DG Competition staff on how to conduct an investigation under Articles 101 and 102. It does not contain binding instructions for staff, and the procedures set out therein may have to be adapted according to the circumstances of individual cases. It is oriented towards the practical needs of case teams, but does not claim to provide complete or exhaustive practical guidance.
The version of the ManProc that is now publicly available contains detailed guidance on many aspects of procedures under Articles 101 and 102, including:
- decision-making procedures within the Commission (issues regarding collegiality, consultation obligations and delegation of tasks);
- the Commission’s relations with the Hearing Officers;
- co-operation with national competition authorities and exchange of information within the European Competition Network (ECN), as well as co-operation with national courts and third country competition authorities;
- the Commission's power to request information under Article 18 of Regulation 1/2003 (including requests to undertakings outside the EEA);
- the Commission’s power to take statements under Article 19 of Regulation 1/2003 (i.e. the conduct of interviews);
- the handling of leniency applications;
- access to file and confidentiality;
- the drafting of the Statement of Objections;
- the right to be heard (at both the written and oral phases of the proceedings);
- the procedure for accepting commitments under Article 9 of Regulation 1/2003; and
- post-decision matters such as court litigation, recovery of fines and publication of decisions.
The Commission is understood to be preparing additional chapters on sector inquiries (Article 17 of Regulation 1/2003) as well as remedies and fines (Article 23 of Regulation 2003)
The ManProc provides a valuable insight into internal Commission procedures and will be of significant practical value to legal practitioners interacting with the Commission during antitrust procedures. In particular, it brings additional clarity to issues which are not presently covered by specific Commission guidance, such as commitment decisions. On the other hand, the public version of the ManProc, unsurprisingly, does not contain any guidance on the conduct of inspections (dawn raids) by the Commission.
The full text of the Antitrust Manual of Procedures is accessible at the following link:
http://ec.europa.eu/competition/antitrust/antitrust_manproc_3_2012_en.pdf
