Best Practices for the Conduct of Antitrust Procedures: Further Thoughts

Nikolaos Peristerakis, Ingrid Vandenborre, Apr 19, 2010

On March 3, 2010, the European Commission (the “Commission”) completed the public consultation of two “Best Practices” documents on the conduct of antitrust procedures under Articles 101/102 of the Treaty on the Functioning of the European Union (“TFEU”) and the procedures of Hearing Officers. This article describes the Article 101/102 procedures in light of the Best Practices in comparison with the procedures employed by other leading competition law enforcers, in particular the U.S. Federal Trade Commission (“FTC”) and the U.S. Department of Justice (“DOJ”).

The Best Practices were issued amid intense debate concerning the Commission’s dual role as prosecutor and judge and the lack of adversarial fact finding procedures, against the backdrop of the significant fines imposed by the Commission for anticompetitive conduct.  Many leading academics and practitioners have raised concerns about the protection of due process in light of the European Convention of Human Rights (“ECHR”) and the forensic quality of the evidence relied on by the Commission in its decisions.

These criticisms are not new.  The first criticisms of the system date back to the 1970s and the most recent round to the mid 1990s. About 10 years ago, similar concerns about the combination of prosecutorial and adjudicative powers and evidentiary standards were again raised in the context of merger control review procedures after a series of Commission prohibition decisions.

The Commission’s Best Practices clearly go a long way in improving the transparency of the Commission’s antitrust proceedings.  However, commentators may still question whether the Best Practices go far enough in addressing the concerns regarding the Commission’s dual role as prosecutor and judge and the absence of adversarial fact-finding procedures.

Some new issues have also been raised recently in connection with the Lisbon Treaty, as a result of which fundamental rights guaranteed under the European Charter for Human Rights (“Charter”) will acquire the full value of primary EU law.

We describe below the key features of the U.S. DOJ’s prosecutorial model and the FTC’s administrative model, and compare them against the EU’s procedures under Articles 101/102 TFEU.