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On 30 March 2012, the European Commission published its
Antitrust Manual of Procedures (the so-called "ManProc"),
which comprises internal working documents on the procedures
concerning the application of Articles 101 and 102 TFEU.
The publication comes as a response to a decision of 3 October
2011 of the European Ombudsman, according to which it was
provisionally concluded that the Commission was guilty of
maladministration in failing to make at least a partial disclosure
of its internal Antitrust Manual of procedures under Articles 101
and 102 TFEU (see VBB on Competition Law, Volume 2011, No. 10,
available at www.vbb.com).
The original complaint to the Ombudsman originated in September
2009 when the complainant, a Brussels-based competition lawyer and
former Commission official, made a request under Regulation
1049/2001 seeking access to the ManProc. Initially, in January
2010, the Commission had agreed to publish practical guidelines on
the conduct of proceedings relating to cartel behaviour and abuse
of a dominant position (the so-called "Best practices for
antitrust proceedings", published in October 2011 –
see VBB on Competition Law, Volume 2011, No. 10, available at
www.vbb.com). However, the complainant was not satisfied with this
disclosure, arguing that the ManProc contains critical information
which has been excluded from the "Best practices"
guidelines. In particular, he claimed that the disclosure of the
ManProc was necessary to enable companies to grasp fully the duties
of Commission officials and therefore assess whether these duties
have been properly carried out in the course of antitrust
proceedings. While the Ombudsman agreed with certain arguments put
forward by the Commission (namely, that the ManProc contains
sensitive internal information and guidance on dawn raids), it
nonetheless upheld the complainant's right to partial
disclosure of the ManProc.
In the recently published Antitrust Manual of Procedures, the
Commission explains that this document is an internal working tool
intended to give practical guidance to DG Competition staff on how
to conduct an investigation under Articles 101 and 102. It does not
contain binding instructions for staff, and the procedures set out
therein may have to be adapted according to the circumstances of
individual cases. It is oriented towards the practical needs of
case teams, but does not claim to provide complete or exhaustive
practical guidance.
The version of the ManProc that is now publicly available
contains detailed guidance on many aspects of procedures under
Articles 101 and 102, including:
decision-making procedures within the Commission (issues
regarding collegiality, consultation obligations and delegation of
tasks);
the Commission's relations with the Hearing Officers;
co-operation with national competition authorities and exchange
of information within the European Competition Network (ECN), as
well as co-operation with national courts and third country
competition authorities;
the Commission's power to request information under Article
18 of Regulation 1/2003 (including requests to undertakings outside
the EEA);
the Commission's power to take statements under Article 19
of Regulation 1/2003 (i.e. the conduct of interviews);
the handling of leniency applications;
access to file and confidentiality;
the drafting of the Statement of Objections;
the right to be heard (at both the written and oral phases of
the proceedings);
the procedure for accepting commitments under Article 9 of
Regulation 1/2003; and
post-decision matters such as court litigation, recovery of
fines and publication of decisions.
The Commission is understood to be preparing additional chapters
on sector inquiries (Article 17 of Regulation 1/2003) as well as
remedies and fines (Article 23 of Regulation 2003)
The ManProc provides a valuable insight into internal Commission
procedures and will be of significant practical value to legal
practitioners interacting with the Commission during antitrust
procedures. In particular, it brings additional clarity to issues
which are not presently covered by specific Commission guidance,
such as commitment decisions. On the other hand, the public version
of the ManProc, unsurprisingly, does not contain any guidance on
the conduct of inspections (dawn raids) by the Commission.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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