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Antitrust Alerts

Commission Consultation on Best Practices


On 7 January 2010, the European Commission invited comments on three consultation documents published the same day, namely Best Practices for antitrust proceedings, Best Practices for the submission of economic evidence (both in antitrust and merger proceedings) and Guidance on the role of the Hearing Officers in the context of antitrust proceedings.

The purpose of the documents is to make it easier for companies under investigation to understand how the investigation will proceed, what they can expect from the Commission and what the Commission will expect from them. From the European Commission's perspective, formulated Best Practices are meant to enhance the transparency of investigations, while at the same time ensuring the efficiency of their investigations.

Best Practices on Antitrust Proceedings

Formulations of "Best Practices" usually restate the Commission's experience, policy and practice as it has evolved, but may also be used to bring about changes in its procedure. In antitrust proceedings, important areas where the Commission will be amending its procedures include:

  • earlier opening of formal proceedings, as soon as the initial assessment phase has been concluded,
  • offering state of play meetings to the parties at key points of the proceedings,
  • disclosing key submissions, including giving early access to the complaint, so that parties can already express their views in the investigative phase,
  • publicly announcing the opening and closure of procedures, as well as when Statement of Objections have been sent,
  • providing guidance on how the new instrument of commitment procedures is used in practice.

If implemented, these amendments will increase the quality of the investigation. This is particularly true for an early opening of formal proceedings as well as an early disclosure of key documents. It remains to be seen, however, to what extent the European Commission will actually follow its own Best Practices. These possibilities existed already in the past but were not used by the Commission, while the newly issued Best Practices are not binding. And even if implemented consistently, this would only meet some but not all of the due process concerns raised against the Commission's practice.

Best Practices on the Submission of Economic Evidence

Recognizing the ever-increasing importance of economics in complex cases, the European Commission also issued a consultation document on the submission of economic evidence. The Best Practices outline the criteria which these submissions should fulfill and explain the interaction of the competition department's case teams and the Chief Economist with parties submitting economic evidence.

Guidance Paper on the Hearing Officer

The Guidance Paper on the Hearing Officer sets out the various tasks of the Hearing Officers and delineates how they are usually carried out. It furthermore sets out how companies can make best use of an Oral Hearing. Procedurally, the Guidance Paper explains the reporting obligations and the advisory role of Hearing Officers towards the companies that are addressees of decisions, the Competition Commissioner and the College of Commissioners.

The documents will be applied by the Commission provisionally as of the day of their publication. Stakeholders are free to submit comments over the coming eight weeks until 3 March 2010.

In the past, there were numerous examples of public criticism resulting in formal changes in the consultation documents after the expiration of the period for the submission comments. Crowell & Moring is pleased to assist you in drafting comments on any of the consultation documents. If you want further assistance, please contact the professionals listed to the above or your regular Crowell & Moring contacts.


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