Antitrust Proceedings under Articles 101 and 102 TFEU: EU Commission Publishes a Notice on Best Practices

The Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU was published in the Official Journal on 20 October 2011 (available HERE).

As stated in the first part of the Notice, the purpose is to provide practical guidance on the conduct of proceedings before the Commission. The Notice consequently contributes to more transparenct in the procedure for enforcement of the Treaty's antitrust provisions, and is to read together with the provisions of Council Regulation (EC) No 1/2003, and Commission Regulation No. 773/2004 relating to the conduct of proceedings by the Commission pursuant to the former Articles 81 and 82 EC Treaty (Implementing Regulation). The Notice also reflects the case law of the Court.

The Notice does not cover proceedings before national competition authorities when they apply the provisions. It does not deal in detail with specific procedures (e.g., imposing sanctions or fines when misleading information was submitted or seals were breached) or interim measures.

As presented by the Commission itself:

"This notice is structured in the following way. Section 2 sets out the procedure followed during the investigative phase. This part is relevant for any investigation regardless of whether it leads to a prohibition decision (Article 7 of Regulation (EC) No 1/2003), a commitment decision (Article 9 of Regulation (EC) No 1/2003) or a rejection of complaint decision (Article 7 of the Implementing Regulation). Section 3 describes the main procedural steps and rights of defence in the context of procedures leading to prohibition decisions. Section 4 describes the specific features of the commitment procedure. Section 5 covers rejection of complaints. The remaining sections are of general application: Section 6 describes the limits to use of information, Section 7 deals with the adoption, notification and publication of decisions and Section 8 with future revisions."