European Commission Publishes Antitrust Manual of Procedures

On 30 March 2012, the European Commission ("Commission") published its antitrust manual of procedures, disclosing parts of its internal guidelines applicable to investigations on procedures for the application of Articles 101 and 102 of the Treaty on the Functioning of the European Union ("TFEU"). After the publication of the Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU ("Best Practices"), this is another step in the Commission's efforts to provide transparency on how it is conducting administrative procedures. Lawyers and corporations have claimed that in light of the increasing amount of fines imposed by the Commission and its role as investigator and decision-maker in the administrative procedure, companies should at least be able to know how the Commission would investigate their case.

Background

The combination of very large fines imposed by the Commission and its responsibility to investigate and decide administrative proceedings for the application of Articles 101 and 102 TFEU have always been criticized by both antitrust practitioners and corporations. The Commission has tried to respond to these concerns by strengthening the procedural guarantees for corporations under investigation. However, bolstering the role of the Hearing Officer (an independently acting institution within the Commission charged with the task of monitoring whether the procedural rights of corporations are complied with throughout the administrative proceedings) and the publication of the Best Practices did not satisfy the calls for more transparency.

Last week's publication of the Commission's internal handbook on the procedures investigating cartels and the abuse of a dominant position – the so called Manual of Procedures ("Manual") – is part of the friendly solution proposed by the European Ombudsman ("Ombudsman") with whom a complaint has been lodged accusing the Commission of administrative misconduct. The background of the Ombudsman's inquiry was a request from a private practitioner asking for access to the Manual.

This request brought under EU transparency rules has been turned down by the Commission inter alia on the grounds that the disclosure of the Manual would put the Commission's investigative strategy in the public domain, jeopardizing the future successful conduct of investigations in the field of antitrust enforcement. The Ombudsman concluded that the Commission was entitled to refuse to disclose certain parts of the Manual, but that this was not the case in regard to the document in its entirety. To remedy the situation, the Ombudsman suggested granting partial access to the Manual and trying to find a fair solution regarding access to the remaining parts.

The Manual of Procedures

On the basis of the Ombudsman's inquiry, it was already public knowledge that the Manual as compiled by the Commission for internal use was basically an internal website comprising some 40 modules, 22 checklists, 2300 templates (including translations and archived draft versions of the templates) and 220 annexes (including legislation, notices and other public information).

The Commission has now made public many of the modules, which – according to the Commission – have already been the basis for the Best Practices. The modules published cover topics such as dealing with leniency applications or access to the file and confidentiality. Some of the chapters such as sector-inquiries and fines still have to be finalized. Guidance on surprise inspections (which are understood to be accessible even to Commission officials only if and when necessary) have entirely been kept out alleging that they benefit from an exception to transparency rules. The Commission emphasizes that today's publication does not change the Manual's character as purely internal guidance to staff and that the Manual does not claim to be complete or exhaustive. Updates to the Manual will be made public at regular intervals.

The legal community and the complainant initiating the procedure leading to last week's publication will now carefully study the Manual in order to assess whether the Commission has complied with its duties under the EU transparency rules or whether a new complaint should be lodged with the Ombudsman.

Click here to download the Manual of Procedures [PDF]