Commission Publishes Best Practice Antitrust Guidelines: Some Initial Thoughts
The European Commission (“the Commission”) today published its best practice guidelines in relation to antitrust proceedings (“the Guidelines”). Within the cartel setting, there are a number of interesting points which can be teased out from the Guidelines. The document is part of a wider Commission drive to increase transparency in the way it conducts its investigations in order for companies under investigation and complainants to better understand the administrative process. The Commission sets out in its document that it believes such guidance will “further enhance the efficiency of the investigations” and increase the “predictability of the process.”
Whilst each section of the Guidelines is not discussed here, the aim of this blog is to give you a flavour of some of the highlighted issues. However, in summary, the Commission examines:
1. its procedures during the investigative stage;
2. its procedural steps in coming to a prohibition decision (i.e. the issuing of a Statement of Objections (SO), a company’s Reply, Commission meetings and formal decisions);
3. commitment procedures;
4. rejections of complaints;
5. the use of information provided to the Commission;
6. publication and notification of Commission decisions; and
7. the additional powers granted to the Hearing Officer.
In reading through the Guidelines, the following items caught our eye based on the experience we have gained in various cartel investigations.
Privileged Documents: The Commission sets out how legal professional privilege (LLP) can apply to certain communications between lawyer and client. For a comprehensive review of LLP see our note here. The general rule is that communications between an external independent lawyer and his client are protected and cannot be used as evidence by the Commission.
Comment: The Hearing Officer (an independent individual who presides over the Oral Hearing where the Commission listens to the accused companies arguments) will have additional decision making powers to decide upon the classification of such privileged documents in the event of a dispute. This is a significant extension to the Hearing Officer’s powers. Parties to proceedings will now “have a right of independent review of their procedural claims over the entire process.”
State of Play Meetings: The Commission appears to be formalising set times when it may appropriate for companies under investigation and the Commission to discuss the scope and issues at the heart of the proceedings. Such meetings include a) just after the Commission opens proceedings, b) prior to an SO being issued and c) after a company’s Reply to the SO. The Commission appears also open to the possibility of “triangular” meetings where all parties to the investigation are invited to attend if for example, there are conflicting views on important facts and/or documents. Such state of play meetings are of specific use to the Commission prior to an SO being issued in order to “reach a more informed conclusion as to issues of substance.”
Comment: In one cartel case we have been involved in, such meetings prior to an SO being issued to our client, would have helped considerably in narrowing the allegations concerning certain meetings where there was conclusive evidence employees of the client were not present. Such meetings should therefore help both sides clarify factual and evidential issues at an earlier stage of the investigation.
Greater Fining Transparency in the SO: The Commission explains that it will set out in more detail its fining parameters and specifically the aggravating and mitigating circumstances the Commission will take into account for the company.
Comment: In previous cartel cases, there was less opportunity for a company to comment on any potential fine prior to the actual Commission Decision. The Commission, in setting out its fine intentions in more detail, (e.g. including the relevant sales figures that it will use to make the fine calculation) will allow parties to comment on the fine assessment at an earlier stage of the proceedings (i.e. at the latest in its Reply and at the Oral hearing).
Use of Information: The Commission is at pains to stress that evidence collected and used to demonstrate the cartel activity cannot be used by companies for any other purpose than the current administrative Commission proceedings.
Comment: Things get tricky in cartel investigations when claimants (usually from the US) make disclosure requests asking for evidence which forms part of the Commission’s evidentiary file. Such multi-jurisdictional litigation poses problems for the Commission because if such disclosure requests are agreed to by, for example, a US judge, this would have the knock-on effect of discouraging companies from submitting immunity and leniency applications to the Commission. This would be for fear of assisting claimants in a different jurisdiction in helping them prove the infringement. This will continue to be an issue for the Commission and immunity/leniency applicants.
Key Stages in the Proceedings Being Made Public: The Guidance states that when the Commission opens or closes a case, sends an SO, or adopts a Decision, such steps will be made public either through a press release or an announcement on the Commission’s website.
Comment: It remains to be seen whether each company who is party to the investigation will be mentioned by the Commission or whether just the fact that the Commission has opened proceedings in a particular sector will suffice. It no doubt remains the case that when the Commission adopts a Decision all those companies who are subject to the Decision will become known.
Click here for a link to the full document. The last page of the Guidelines has a good summary flowchart which illustrates the different ways the Commission can progress or conclude an investigation. Click here for a recent Commission speech on this topic.