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MEMO/11/703

Brussels, 17 October

Competition: Best Practices to increase interaction with parties and enhanced role of hearing officer– frequently asked questions

(see also IP/11/1201)

When will the new package of measures be operational?

The notice on antitrust best practices and the best practices on the submission of economic evidence apply to pending cases (to procedural steps that still remain to be taken) and future cases as from the date of their publication.

The revised mandate of the hearing officer enters into force the day after its publication in the Official Journal of the European Union. There are transitional provisions for investigatory measures which were taken before the entry into force of the new mandate and with regard to the reporting duties of the hearing officer in cases which were opened before that date.

Notice on Antitrust Best Practices

Why has the Commission adopted a Notice on Antitrust Best Practices?

The best practices on the conduct of merger proceedings, adopted in January 2004 (see IP/04/70), have increased understanding of the merger review process, leading to greater efficiency and a high degree of predictability and transparency. It was therefore considered that antitrust proceedings would also benefit from the introduction of such measures. Draft antitrust best practices were published in January 2010 for consultation and have been provisionally applied since then. The final, improved, best practices have now been adopted. They take into account stakeholders' comments and the Commission's own experience in applying the measures in practice.

What has changed for the opening of proceedings?

The Commission will open formal proceedings as soon as the initial assessment phase has been concluded. This means that the scope of the investigation and the identity of the parties concerned are clarified at an early stage.

Why has the Commission introduced State of Play meetings and how will they work?

State of Play meetings allow for frank and open discussion. Case teams will inform the parties the parties about what the Commission is investigating and ensure that the Commission is aware of the parties' arguments from an early stage.

The case team will offer state of play meetings at key points in the proceedings: shortly after the opening of formal proceedings, at an intermediary stage between the opening of proceedings and the issuing of the statement of objections and after the statement of objections.

Specific state of play meetings are also foreseen in commitment proceedings, cartel proceedings (after the oral hearing), and for complainants in cases where the Commission has formally opened proceedings and intends to reject the complaint.

What are "key submissions" and when will parties have access to them?

The Commission has committed to provide the parties with key submissions of complainants or third parties, prior to issuing a statement of objections.

Such key submissions include the non-confidential version of complaints or economic studies, so that parties are better able to understand the issues that are being raised against them already in the investigative phase. Moreover, the Commission will be able to analyse and take account of possible defences at an early stage.

How will stakeholders be better informed about antitrust proceedings?

Key stages in antitrust proceedings, namely the opening of cases, the sending of a statement of objections, the closure of proceedings and the adoption of a decision will in principle be made public, either through a press release or an announcement on the Commission's website.

Why does the Commission provide guidance about commitment procedures?

A key aim of the notice on antitrust best practices is to give parties a clear picture of what to expect at different stages of antitrust procedures before the Commission. The commitments procedure allows an antitrust investigation to be closed by a commitment decision after the parties offer remedies that are sufficient to dispel the Commission's concerns. Since its introduction in 2004, the Commission has now gathered sufficient experience to provide parties with meaningful guidance on how the procedure works in practice and how best to proceed to offer commitments. The Commission encourages companies to signal their interest in discussing commitments at the earliest possible stage.

Will the parties get more information regarding the possible imposition of fines?

The Commission commits to provide, in the statement of objections, over and above what is legally required, additional information on the parameters relevant for the calculation of possible fines. Such information would not include the actual fine amounts but elements such as the value of the sales affected by the infringement, as well as the periods that the Commission intends to consider for determining the value of such sales.

The additional information will give the parties at an early stage a better view of how the Commission intends to calculate a possible fine. Parties can then better prepare their arguments and present them in the oral hearing. The exchange of information will also help the Commission to verify the accuracy of the factual elements relevant for possible fines at an early stage.

Will parties get more guidance on Inability to Pay requests?

In exceptional circumstances, the Commission may, upon request, consider to reduce or waive antitrust fines because of an undertaking's inability to pay. The notice clarifies at what stage such claims may be made and how and when the Commission will assess them.

Why does the Commission commit to publish its decisions rejecting complaints?

The Commission will systematically publish all of its decisions (or at least a summary thereof) rejecting complaints alleging antitrust infringements so that stakeholders will have a more accurate picture of the number of complaints rejected and the grounds for their rejection.

Revised mandate of the hearing officer

How will the revised mandate enhance the role of the hearing officer?

The hearing officer is a key interlocutor who guarantees the right for parties to be heard in antitrust and merger proceedings before the Commission since 1982. The hearing officer plays a crucial role as an independent arbiter in disputes between the case teams and the parties. Up to now, the role of the hearing officer was restricted to the stages of the procedure that follow the sending of the statement of objections.

The revised hearing officer's mandate extends the role of the hearing officer to the entire procedure. Crucially, the hearing officer has new functions in the investigation phase of antitrust cases and regarding investigatory measures in cases under the Merger Regulation that can result in the imposition of fines, as well as in commitment procedures.

How will the revised mandate strengthen the independence of the hearing officer?

The revised Mandate will explicitly specify for the first time that the hearing officers shall act independently in performing their duties. This was always the case in practice but an explicit statement in the mandate to this effect will be an important guarantee.

How will the hearing officer be able to intervene on legal professional privilege issues?

The principle of the confidentiality of communication between lawyers and their clients (legal professional privilege or LPP) has been recognised by the EU Courts as a fundamental right. In essence, during inspections the Commission may not read or copy documents that benefit from legal privilege. Where claims cannot be resolved on the spot, documents may have to be placed in a sealed envelope. The matter must then be resolved without the documents being seen, on the basis of the elements that parties come forward with to substantiate their claim. Under the revised mandate, a party that claims LPP could ask the hearing officer to review the document and express a view on whether the document is privileged. This new role of the hearing officer should go a long way in facilitating disputes about such claims and avoid unnecessary litigation. Where a consensual solution cannot be reached, the hearing officer can address a reasoned recommendation to the Competition Commissioner. If the matter is not resolved on this basis, the Commission will examine the matter further and, where appropriate, adopt a decision.

What other new functions does the hearing officer have in the investigation phase?

Parties are now able to call upon the hearing officer in the investigative phase of antitrust investigations if they feel that they should not be compelled to reply to questions that might force them to admit an infringement.

The hearing officer is also given a new role to resolve disputes about extensions of the deadline to reply to decisions requiring information under Article 18(3) of Regulation 1/2003 in antitrust investigations.

In antitrust proceedings, when the Commission sends a request for information or carries out an inspection, it has to inform the companies investigated whether they are potentially suspected of an infringement. If this is not done, the hearing officer now has the express power to intervene.

How can the hearing officer ensure that the oral hearing is well prepared?

The hearing officer is empowered to take all appropriate measures to prepare the hearing, such as circulating a list of participants in due time and identifying beforehand the focal areas of debate. This will help to ensure that the parties develop their arguments at the hearing effectively.

What changes in the reporting role of the hearing officer?

The remit of the reports which the hearing officer presents to the Competition Commissioner and the College is extended to cover the effective exercise of procedural rights during the whole procedure, including the investigation phase. The reports of the hearing officer are a crucial means to ensure the systematic follow up of procedural issues raised during proceedings.

What is the hearing officer's new role in commitment decisions?

Parties in antitrust commitment proceedings will be able to call upon the hearing officer at any time in relation to the effective exercise of their procedural rights. A similar right already exists in cartel settlement procedures.

What will happen to the draft guidance paper of the hearing officer?

A draft guidance paper on the procedures of the hearing officer was published for public consultation in January 2010. A significant enhancement of the role of the hearing officer could however only be achieved through a revision of the mandate. The draft Guidance on the procedures of the hearing officer has therefore become obsolete.

Best Practices on the submission of economic evidence

What is new in the Best Practices on the submission of economic evidence?

How will the Best Practices on the submission of economic evidence make it easier for parties to provide the Commission with economic data?

Firstly, the Best Practices on the submission of economic evidence contain recommendations regarding the presentation and content of economic and econometric analysis. By giving parties a better idea of what is expected, this will facilitate the assessment of such data by the Commission and the replication of any empirical results by the Commission and/or other parties.

Secondly, the Best Practices provide guidance on how to respond to Commission requests for large sets of quantitative data. This is to help parties to provide timely and relevant input to the Commission.

How have the Best Practices on the submission of economic evidence been modified?

A provisional version of the Staff Working Paper on the submission of economic evidence was published in January 2010 for public consultation.

To take into account the comments of stakeholders, the text has been revised as follows:

  • 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,

  • more specific guidance on consumer surveys is included to ensure that such evidence meets certain minimum standards.


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