Due Process in the EU: A New Era? Ingrid Vandenborre

1. Due Process in the EU: A New Era? Ingrid Vandenborre Dubrovnik, 16 June 2011 1

2. Due Process in the EU: A New Era? • EU Best Practices for the conduct of Antitrust Procedures • Limitations of the Best Practices • A New Era for Due Process? • The Court’s role in Document Disclosure

3. EU Best Practices • EU Draft Best Practices introduce additional procedural steps to improve transparency: • For Defendants: • State of Play meetings with the Case Team and senior DG Comp management at several key stages of the procedure; • Possibility to comment on a non-confidential version of the complaint; and • A negotiated disclosure procedure and data room procedures for access to file.

4. EU Best Practices – cont’d • For third parties: • Triangular meetings with DG Comp and the defendants; and • Review of key submissions by the defendant.

5. EU Best Practices – cont’d • In addition, the Best Practices provide following safeguards that benefit both defendants and third parties: • A non-confidential version of any written documentation prepared by undertakings in relation to a meeting or call with the case team, together with a note prepared by DG Comp, will be made accessible. • Increased importance of the Oral Hearing: • Presence of senior management; and • Possibility for Hearing Officer to allow questions on written or oral submissions.

6. EU Best Practices – cont’d • 30 May 2011 Speech of Commissioner Almunia announced further changes to Best Practices: • The inclusion of a section on fines in the SO; • Wider and earlier access to key documents before the SO; • State of play meetings in cartel cases and for complainants; and • Revised mandate for the Hearing Officer : • To hear all procedural claims throughout the investigation; and • To address privilege issues.

7. Limitations of the EU Best Practices • No clear separation of prosecutorial and decisional powers • Importance of separation of powers in antitrust versus merger cases. • Importance of separation of powers given limited judicial review by the EU Courts. • EU Court “Unlimited jurisdiction” re: size of fines reduced by EU Commission fining guidelines? • Effective separation of powers through peer review?

8. Limitations of the EU Best Practices • Limited role of the Oral Hearing • Not a trial resulting in a finding of fact or assessment. • No rights to cross-examine witnesses or submit new arguments. • No rules of evidence • Control of evidence by DG Comp. • No power to compel testimony • DG Comp can only obtain voluntary and unsworn oral testimony.

9. A New Era for EU Due Process • Entry into force of the Lisbon Treaty introduces the Charter on Fundamental Rights of the European Union into European Primary Law. • Lisbon Treaty may affect EU procedures based on appeals before the EU Courts. • EU Court judges Jaeger and Forwood anticipate a potential review of existing case law, indicating that • “the need for “restraints” has gone” and • there is “a window of opportunity to revisit old concepts” with • the new status of the charter “demanding a change of perspective.”

10. A Case on Point: Confidentiality of EU Commission Records • Private plaintiffs are seeking access to Commission records in cartel cases before the EU Courts: • Based on Regulation 1049/2001 • VKI judgment of April 2005 • Editions Odile Jacob judgment June 2010 – on appeal • TGI judgment of July 2010 • Multitude of others pending before EU court: • German utility appeal against Commission decision denying access to file in gas insulated switchgear cartel; • Dutch government appealed Commission decision denying access to Commission file in bitumen cartel proceeding; and • CDC appeal of Commission decision denying access to file index for bleaching agents cartel.

11. A Case on Point: Confidentiality of EU Commission Records – cont’d • Based on Article 4a (3) TFEU and Articles 11-12 and 15 Regulation 1/2003. • 1996 Postbank judgment: refusal to disclose to Member State courts only where “the disclosure of information would be capable of interfering with the functioning and independence of the Community.” • Commission 2004 Cooperation Notice excludes corporate statements from cooperation obligation. • Currently pending: Reference for a preliminary ruling – Pfleiderer AG v Bundeskartellamt. • AG proposed that access to voluntary self-incriminating statements should not be provided.

12. Due Process in EU Member State procedures • In some Member States, the defendant and third parties enjoy limited rights. • For example, differences exist in relation to • The obligation of the authority to inform complaints or third parties about the opening of a procedure; • The extent of judicial review in relation to decisions to open a procedure; and • The existence of mandatory timeframes for the completion of a procedure. (See N. Petit, “Cross-country survey of the discretion of competition authorities in the course of their enforcement activities”) • EU Courts’ position will have impact also on procedures in Member States for Article 101 infringements.

13. Biography Ingrid Vandenborre has worked on EU and other non-U.S. merger control issues, Article 101 issues, and Article 102 enforcement issues both at the EU and EU Member State level. She is representing multinational firms in Article 101 enforcement issues both before the EU Commission and EU Member State competition authorities and has successfully assisted in obtaining conditional immunity or leniency with the European Commission and other competition law agencies around the world. Ms. Vandenborre was involved in the EU Commission proceeding against Intel, which was the first Article 102 case in which the European Ombudsman in response to a complaint by Intel issued a decision finding that the Commission committed an act of maladministration in respect of substantive aspects of a Commission antitrust proceeding. Ms. Vandenborre was directly involved in representing Intel before the European Ombudsman. She recently was chosen as a “Rising Legal Star” for antitrust by Law360.