Fifth Annual Conference on Competition Enforcement in the CCE Member States
21 February 2014, Bratislava
Due Process in EU Competition Law Recent Package of Best Practices and Mandate for
the Hearing Officer
Paul Csiszár
Director
Markets and Cases IV: Basic Industries, Manufacturing and Agriculture
DG Competition
European Commission,
DG Competition
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Drivers for change
Why does improving enforcement procedures matter?
•enhances fact-finding ability
•helps to avoid errors
•wins stakeholder respect
•ensures accountability
•supports intervention by agencies
European Commission,
DG Competition
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Respect of procedural rights and
transparency
How to integrate these principles?
• Each agency has its own solutions to common
problems: there is no one-size fits all formula
• Agencies should seek constant improvement: there
must be willingness to listen and adjust
• Need to bear in mind the need for efficient
proceedings
European Commission,
DG Competition
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The EU System of Competition Enforcement
Final Review by
Court of Justice
Judicial Review
by General Court
European Commission
(integrated public enforcer)
European Commission,
DG Competition
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The EU System of Competition Enforcement
• EU enforcement system of an integrated authority plus court
review is fundamentally sound
• The recent judgment of the ECtHR (Menarini) confirms that
this system is compliant with the ECHR
• The Commission’s enforcement procedures are subject to the
rule of law and ensure a high standard of procedural rights
• The Commission is committed to ensuring the “right
outcome” and has in place a range of internal checks and
balances
European Commission,
DG Competition
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Checks and Balances
Decision taken by the College
Within DG COMP
Hierarchical approval
Peer review panel
Horizontal Case
coordination
Independent
review functions Reporting directly
to the Competition
Commissioner
Chief Economist
Hearing Officer
(interim report)
Other Commission
departments
Legal Service
Other Commission DGs
Member States’
competition
authorities
Advisory
Committee
Hearing Officer
(final report)
DG COMP
case team
European Commission,
DG Competition
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Comprehensive rights of defence and
procedural guarantees for parties
• Procedural rights and guarantees during the investigation
phase
• Right to receive a Statement of Objections
• Full right of access to the Commission’s investigation file
• Right to be heard:
– Right to respond to the Commission’s objections
– Right to a formal oral hearing
• Right to a reasoned decision
European Commission,
DG Competition
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Room for Improvement
New package of measures:
– Definitive Best Practices: increase interaction
with parties and enhance transparency and
predictability of proceedings
– Revised Hearing Officer’s Mandate: strengthens
mechanisms for safeguarding procedural rights
European Commission,
DG Competition
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How we got there
Four steps:
1. Publication of a draft set of Antitrust Best Practices, the
Hearing Officer Guidance and Best Practices for the
submission of economic evidence, published in 2010
2. Ensured immediate, provisional application
3. Gained experience and listened to stakeholders
4. Made adjustments, factoring in the need for efficient
proceedings, and make definitive
European Commission,
DG Competition
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Increasing transparency and predictability
Antitrust Best Practices
•
•
•
•
Provide A-Z of antitrust proceedings for the first time
Provide guidance as to how commitment procedure
works in practice
Provide greater transparency to all stakeholders
(public announcements at key stages, publication of
rejection of complaints)
Improve interaction with parties
European Commission,
DG Competition
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Enhanced interaction with parties
Antitrust Best Practices
 Early opening of proceedings so that parties & scope of
investigation is known rapidly
 State of Play meetings to the parties offered at key points
of the proceedings
 Early access to key submissions, including the complaint
 Inclusion of a section on fines in the Statement of
Objections, including parameters for the calculation of
possible fines. Greater transparency also introduced with
regard to Inability to Pay requests.
European Commission,
DG Competition
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Enhanced interaction with parties (cont.)
BPs on submission of economic evidence
– Outline the criteria economic and econometric analysis
provided by companies should fulfil
– Will streamline the submission, and assessment of, such
economic evidence
– Explains practice of DG COMP when interacting with
parties which submit economic evidence
European Commission,
DG Competition
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New safeguards to ensure respect of
procedural rights
Revised Mandate for the Hearing Officer:
– The HO is independent of DG COMP and has ensured respect of
the right to be heard since 1982
– Expands and consolidates role of the HO:
• Expands the role of the HO to encompass the effective
exercise of procedural rights throughout proceedings
• Reinforces and bolsters the independence of the HO
• Increases possibilities to go to HO as independent arbiter
– Does not fundamentally change role of HO or the oral hearing
European Commission,
DG Competition
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New safeguards to ensure respect of
procedural rights (cont.)
• HO new role in investigation phase: LPP, right not to selfincriminate, deadlines, information on procedural status
• Report on procedural rights throughout proceedings
• Commitments / settlements: HO role as introduced in the
settlements procedure reflected and extended to
commitment procedures
• Enhances means of preparation of the Oral Hearing
European Commission,
DG Competition
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To conclude
• The Best Practices and the revised Hearing Officer Mandate
are intended to underline the Commission’s commitment to
constantly improve its procedures
• Transparent and fair procedures benefit not just the parties,
but are crucial for an effective and credible competition
regime
European Commission,
DG Competition
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Thank you for your attention!
European Commission,
DG Competition
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