Public comment on active antitrust cases 1

The European Competition Law Review is a refereed journal for which the Publishing Editor welcomes contributions which can be

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This journal may be cited as 2015 ECLR followed by the page number

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B The role of EU CompetitionCorn miss ioners

EU Competition Commissioners wield considerable

power1 they may order dawn raids subject companies

to lengthy investigations and propose decisions to impose

substantial fines or to prohibit mergers In addition to

exercising a quasi judicial role as decision makers

Competition Commissioners preside over the 800 lawyers

economists and other officials who comprise DG COMPthe Commission Directorate General that oversees the

application and enforcement of EU competition rules2

Competition Commissionerstherefore “unite the functions

of investigator prosecutor and judge” 3

As a result the EU system even more so than many

other administrative systems carries inherent risks The

OECD has observed in this regard that “combining the

function of investigation and decision in a single

institution can save costs but can also dampen internal

critique” 4 while various commentators have recognized

the risk of prosecutorial bias 5 criticized the absence of a

public hearing before the ultimate decisionmaker6 called

on the Commission to hold hearings “before a new team

which would hear with an open mind the case team’s

arguments as well as the arguments in defense from the

investigated companies” 7 and suggested that the

combination of the Commission’s investigative

prosecutorial and judicial functions “puts into doubt the

independence and objective nature of the entire

procedure.” 6

In response to these concerns successive Competition

Commissioners have acknowledged that “due process

and scrupulous attention to procedural fairness are

Why Competition

Commissionersshoulld be cautious in

commenting pubAic y

on active antitrust

cases

Ncho as Levy

Andrs Rmsa

Anticompetitive practices EU law European

Commission Impartiality Media

A Overview

This article examines the duty on EU Competition

Commissioners to act impartially in discharging their

functions as investigators prosecutors and

decision makers in EU antitrust cases and explains why

application of that duty counsels in favour of exercising

caution in commenting publicly on active cases where

the companies under investigation are still exercising

their rights of defence

Nicholas Levy and Andris Rimsa are antitrust lawyers in the Brussels office of Cleary Gottlieb Steen Hamilton LLP The authors are very grateful for the assistance

and insightful comments of Mario Siragusa John Temple Lang Maurits Dolmans Robbert Snelders Mark Nelson Paul Gilbert Tilman Kuhn Paul Stuart Saverio Valentmo

Bradley Justus and Charlotte Emin The views expressed are personal to the authors and all errors omissions and opinions are their own Cleary Gottlieb acted as counsel

to NYSE Euronext Google and Lundbeck in the EU proceedings referred to in this article

ISee eg K Lenaerts Judge at tlse Court of Justice “Due Process in Competition Cases” 2013 l 5NeueZeitschr fiJiirKartellrecht 175 182

2 Among other things DG COMP’s officials propose legislation conduct investigations send information requests and interview business people draft charges or in EU

terminology “ statements of objections” negotiate remedies interpret tile law decides the need for economic analysis determine whether fines should be imposed and

effectively set the level of those fines and prepare decisions

European Parliament DirectorateGeneralfor Internal Policies Citizens’Rights and C’onstitutional Affairs Workshop on EUAdninistrative Lair State ofPlay and

Future Prospects Leon Spain 2011 p238

DECO Country Studies Competition Law and Policy in the European Union 2005 p62 see also pp151 63 69 available at httpwss’woecd oigdaf conipetition

j roseculionandlawenforce nent 35908641 pdf Accessed October 29 2014

See eg EM Fox and MJ Trebilcock eds The Design of Competition Lass’ Institutions Global Norms Local C’hoices Oxford Oxford University Press 2013 p7W Wils “The Combination of the Investigative and Prosecutorial Function and the Adjudicative Function in EC Antitrust Enforcement A Legal and Economic Analysis”

2004 27 World Competition 201—224 and J Temple Lang “Three Possibilities For Reform Of The Procedure Of Thc European Commission In Competition Cases Under

Regulation 12003” 2011 CEPS Special Report available at httpaeipitt edu 32989 l Reform of Coinnissio ij’ ocedure inCompetition Casessvithcovei pdf Accessed

October 28 20146D Geradin and N Petit “Judicial Review in European Union Competition Law A Quantitative and Qualitative Assessment” 2011 8 TILEC Discussion Paper Series

16 D SIster S Thomas and D Wselbroeck “Competition law proceedings before the European Commission and the right to a fair trial no need for reform?” 2008 The

Global Competition Law Centre working Paper 04 08 37 40 In light of the quasi criminal nature ofEU infringements proceedings some have suggested that the Commission

should guarantee similardue process rights to those required in criminal proceedings under art6l of the Convention for the Protection of Human Rights and Fundamental

Freedoms “ECHR” including a public hearing before an independent an impartial tribunal See eg IS Forrester “Due process in EC competition cases A distinguished

institution with flawed procedures?” 2009 34 European Lass’ Review 817 an International Chamber of Commerce Comnsission on Competition Policy Statement Due

process in EUantitrust proceedings April 15 2014 para 2.1.5 available at

antitrust proceedings “ the right to an independent and impartial tribunal is so fundamental for the safeguarding of human rights that it has to be complied with at each

instance and most importantly at the first instance i e at the stage of administrative review]” See however W Wils “The Compatibility with Fundamental Rights of

the EU Antitrust Enforcement System in which the European Commission Acts both as Investigator and as First instance Decision Maker” 2014 37 World Competition

5—25 and C de Ia Torre “Evidence proof and judicial review in cartel cases” 2009 32 World Conipetition 505—578

Intemational Chamber of Commerce Commission on Competition Policy Statement Due process in EU antitrust proceedings April 15 2014 para 2.3.4 available at

Accessed October 28 2014

European Parliament Directorate Generalfor Internal Policies Citizens’ Righits and Constitutional Affairs Workshop on EUAdniinistrattve Lasu State ofPlay and

Future Prospects LeOn Spain 2011 p238 See also EM de Rivery E Lagathu and E Chassaing “EU Competition Fines and Fundamental Rights Correcting the

Imbalance” 2012 78 European Lass’ Reporter 190 192—193 and R O’Donoghue and T Johnston “ Notes From a Small Island Natural Justice and the Institutional Design

and Practice of Competition Authorities and Appellate Courts” Spring 2014 10 1 Competition Policy International 57 91

2015 36 ECLR Issue I 7 2014 Thomson Reuters Professional UK Limited and Contributors

2 European Competition Law ReviewPublic comment on active antitrust cases 3

imperative” 9 and various mechanisms have been put in

place to guarantee companies’ rights of defence including

the appointment of Hearing Officers who preside over

oral hearings and adjudicate on procedural matters,’ the

use of “peer review” scrutiny panels in complex cases,’

the establishment of a European Ombudsman,’ 2 and

review by the Commission’s Legal Service Commission

decisions may also be appealed to the EU Courts

although judicial review does not extend to a full review

on the merits’3 and the EU Courts frequently defer to the

Commission in particular in matters of economic

assessment.’ 4

The duty on the Commission to act impartially extends

not only to those officials charged with carrying out

investigations but also and afortiori to senior agency

figures including the Competition Commissioner As

one US commentator has observed

“To be effective a commitment to fairness and

objectivity must come from the highest levels of an

agency and must be affirmatively promoted by

agency leadership so that it becomes an ever present

‘ second nature’ concern at every level and in all

activities of the agency While specific rules should

be implemented to help assure procedural fairness

such a commitment must transcend rulemaking No

set of rules or checklist of concerns can anticipate

and enumerate every requirement of procedural

fairness in all possible cases and in all future

circumstances

Moreover even sound and detailed procedural

rules —even if strictly enforced —are easily

rendered useless by carelessness inattention or even

a spirit of evasion The procedures of an agency

must be administered in a spirit of practicality and

with the ultimate objective clearly in mind to make

D The risks associated with publicly

commenting on active cases

The need to avoid prejudgment or the appearance of

pre judgment is therefore important to maintain

confidence in the integrity of the investigative and

decision making process This principle has implications

for what Competition Commissioners may appropriately

say in public about ongoing investigations While

investigations are active there should be no suggestion

or impression that their outcomes have been prejudged

including because any such impression may aggravate

the risk of confirmation bias28 or negatively affect a

company’s market value 29

In light of these considerations Commission officials

including the Competition Commissioner are required

to exercise care and discretion in publicly commenting

on ongoing antitrust investigations Although DGCOMP’s Code on Ethics and Integrity discussed below

acknowledges that Commission officials are “free to

publicly express herhis personal opinions,” it requires

them to “make it absolutely clear that these views are

her his personal opinions and do not necessarily reflect

the views of the Commission and or DG COMP.” 3 It

further cautions that “when making a public statement

the staff member is acting defacto as a spokesperson for

the Commission”3’ and counsels that “those views can

carry a certain weight with those hearing them who will

probably see herhim as a Commission official as well as

a private individual.” 32 These principles apply with

particular force to Competition Commissioners given

their role as effective decision makers

The Commission has in the past been obliged to

acknowledge the possibility that its conduct during an

ongoing investigation may give an impression of

accurate decisions efficiently so that harmful

practices are properly identified and remedied while

benign practices are minimallyburdened and quickly

removed from jeopardy.”5

Competition Commissioners must therefore

demonstrate the highest standards of objectivity and

impartiality so that ‘ justice should not only be done but

should manifestly and undoubtedly be seen to be done.” 6

C The importance of impartiality

The Commission’s duty to act in accordance with the

principle of good administration which includes a

company’s right to have proceedings handled impartially

is enshrined in the Charter of Fundamental Rights of the

European Union “CFR”).’7

“The requirement of impartiality encompasses on

the one hand subjective impartiality insofar as no

member of the institution concerned who is

responsible for the matter may show bias or personal

prejudice and on the other hand objective

impartiality insofar as there must be sufficient

guarantees to exclude any legitimate doubt as to bias

on the part of the institution concerned.” 6

As the UK Supreme Court has recognised respecting

procedural fairness is “liable to result in better decisions,”

avoid any sense of injustice and promote the rule of law.’ 9

Consistent with these general principles the EU Courts

have detennined that the Commission is subject to a duty

to “examine carefully and impartially all the relevant

aspects of the individual case” 2 and to avoid “subjective

impartiality in so far as no member of the institution

concerned who is responsible for the matter may show

bias or personal prejudice.” 2’ Successive Competition

Commissioners have in turn recognized that “our

compliance with fundamental rights is an integral part of

our enforcement practice at all stages of our cases,” 22 and

the European Code of Good Administrative Behaviour

which governs the conduct of Commission officials

provides that

“quality service calls for the Commission and its

staff to be courteous objective and impartial

Staff shall always act objectively and impartially

in the Community interest and for the public good.” 23

The duty to remain fair impartial and objective

means among other things that evidence should be

examined with an open mind and that only after all the

available evidence has been considered weighed and

tested and all available rights of defence have been

exhausted should an agency reach a conclusion on the

legality of a given practice agreement course of conduct

or transaction 24 Pre judgment or the appearance of

pre judgment25 should be avoided 26 including of course

by the Competition Commissioner who presides over

the officials charged with investigating a given practice

or transaction and is ultimately charged with acting as

decision maker27 Accordingly it is incumbent on

Competition Commissioners to keep their minds open

until an investigation has been completed The

circumstance that Competition Commissioners rarely if

ever review the full body of written evidence available

to the Commission or attend an oral hearing makes it even

more important that they avoid rushing to judgment or

expressing a view when it would be premature or

inappropriate to do so

International Chamber of Commerce Commission on Competition Policy Statement Due process in EU antiSrust proceedings March 8 2010 para 1.2 available at littp

Accessed October 28,20141 See too J Almunia “Due

process and competition enforcement” IBA —14th Annual Competition Conference Florence September 17 2010 Speech 10 449 “Some argue that the Commission

as an administrative authority cannot guarantee the same procedural safeguards as the courts I respect this concern butt find it misguided we all know that due process

is a fundamental principle and it is one to which the Commission applies the highest standards Our decision making process —and the decisions that result frons it —are open and respectful of the rights of defence of the parties”

of the President of the European Commission on the function and terms of reference of the hearing officer in certain competition proceedings 20111 OJ L275 29

See too M Albers and 3 Jourdan “The Role of Hearing Officers in EU Competition Proceedings A Historical and Practical Perspective” 2011 2 Journal ofEuropean

Conipetition Lan’ Practice 185—200

M Monti “Merger control in the European Union a radical reform” European CommissionIBA Conference on EU Merger Control Brussels November 7 2002 Speech

02 545‘ 5Article 228 TFEU and art 43 of the Charter of Fundamental Rights of the European Union‘~‘ Judicial review is limited to ensuring compliance with procedural rules confirming that a contested decision is sufficiently reasoned veritying the accuracy of facts relied

upon by the Commission identitying any manifest errors of assessment and determining whether any misuse of power has occurred Under art26l TFEU the EU Courts

have full jurisdiction only with respect to fines See too Sir Christopher Bellamy former President of what is now the General Court “ECHR and competition law posl

Menarini Au overview of EU and national case law” eCoinpetitions N 47946 July 5 2012 “Under a control of legality approach it is inevitable that the Commission

will always retains substantial margin of discretion” and GM Berrisch “The EU Courts Play a Crucial Role in Ensuring Compliance of the EU’s System of Competition

Law Enforcement with Due Process Rights” 2014 1 June CPlAntitruist Chronicle I—S‘ 4See eg Air France v Conniission ofthe European ConiniunitiesT393 1994 ECR 11121 at 113 “ it is not for the Court to substitute its own appraisal for

that of the Commission” and Petrolessence SA v C’o nnuission oft ic European communities T 342 00 2003 ECR 11 1161 at lol]—t02 Court must not “substitute

its own economic assessment for that of the Commission,” although it is entitled to performs “close examination in particular of the circumstances which in each individual

case are relevant for assessing the effects of the concentration on competition in the market in question”S Heather “Due process in competition proceedings Procedural fairness within administrative enforcement agencies for antitrust and competition law A US point

of view” 2010 3 Concurrences 17—22 paras 11—12 See also P Lugard “Procedural Fairness and Transparency in Antitrust Cases Work in Progress” 2014 1 June

CT Antitrust Chronicle 2—8

‘6R v Sussex Justices Exp Mccarthy 1924 1 KB 256 259 per Hewart LCJ‘7Article 41 CFR Following the adoption of the Lisbon Treaty on December 1,2009 art6l TFEU provides that the CFR “shallhave the same legal value as the Treaties.”

SA v European omniission C439 1 1 P 20131 5 CMLR 36 at l54]—155 C’hronopost SA and La Poste v U uon Francaise de l’Express UFEX and others

C341 06 P C342 06 P 2008 ECR 14777 at 54 and GorostiagaAtxalandabaso v European Parliamnemil C308 07 P 2009 ECR 11059 at 46‘ Osborn v Parole Board 2013 UKSC 61 at 67]—7 15ABB Asea Brosvn Boveri Ltd s’ C’omnnuission ofthe European Conimunities T 3 199 2002 ECR 111881 at 99 See also Hauptzollomnt MOnch en Mitte s’ echumusche

Universitdt MOnchen C269 90 19911 ECR 15469 at 14 La C’inq SA v Conunission ofthe European Coniniunities T44 90 1992 ECR Il I at 86 and Métropole

Télévision SA v Conunuission ofSite European Comiimuuties T 528 93 T 542 93 T 543 93 T 546 93 1996 ECR 11 649 at 93‘ Ziegler 20131 5 CMLR 36 at 155

22j Alnsunia “Fair process in EU competition proceedings” European Competition Day Budapest May 30 2011 speech 11 396 See also J Almunia “Presenting the

Annual Competition Report” Septensber 23 2014 Speech 14 615 “the European Commission—and in particular the Commissioner for Competition—must stand firm

to preserve the independence impartiality and objectivity of our procedures and decisions We are the most respected competition authority in the world precisely because

of the way we guarantee these principles”

23European Code of Good Administrative Behaviour 2000 OJ L267 6324 411 a CFR guarantees “the right of every person to be heard before any individual measure which would affect him or her adversely is taken.”

See eg ECtHR Olujic v Croatia 22330 05 2011 52 EHRR 26 February 5 2009 at 63 “ in respect of the question of objective impartiality even appearances

may be of a certain importance or in other words ‘justice must not only be done it must also be seen to be dotse”

265ee eg R v Gong i 1993 AC 646 Lord Goff “But there is also the simple fact that bias is such an insidious thing that even though a person may in good faith believe

that he was acting impartially his mind may unconsciously be affected by bias “27 See eg Paul Rand Dixon fonner Federal Trade Consmissioner “There is in fact and law authority in the Commission acting in the public interest to alert the public

to suspected violations of the law by factual press releases whenever the Commission shall have reason to believe that a respondent is engaged in activities made unlawful

by the Act This does not give individual Commissioners license to prejudge cases or to make speeches which give the appearance that the case has been prejudged Conduct

such as this nsay have the effect of entrenching a Commissioner in a position which he has publicly stated making it difficult if not impossible for him to reach a different

conclusion in the event he deems it necessary to do so after consideration of the record” Cinderella Career and Finishing Schools v FTC425 F2d 583 DC Circuit 1970

590

25For a definition of confirmation bias see eg RS Nickerson “Confirmation bias A Ubiquitous Phenomenon in Many Guises” 1998 2 Review ofGeneral Psychology

175 220 defining confirmation bias as “the seeking or interpreting of evidence in ways that are partial to existing beliefs expectations or a hypothesis in hand” AsMolihre’s character George Dandin once said “It infuriates me to be wrong when I know I’m right.” Moliere Georges Dandin on le Man confondu 1668 “J’enrage de

bait coeusr d’avoir tort lorsquej ‘ai raison” See also CA Anderson MR Lepper and L Ross “ Perseverance of Social Theories The Role of Explanation in the Persistence

of Discredited Information” 1980 39 Joisr ial ofPersonality and Social Psychology 1037—1049 L Festinger JM Carlsmith “Cognitive Consequences of Force

Compliance” 1959 58 Journal ofAbnormnal and Social Psychology 203—210 More generally see Wils “The Combination of the Investigative and Prosecutorial Function

and the Adjudicative Function in EC Antitrust Enforcement A Legal and Economic Analysis” 2004 27 World Coinpetitio i 20 1—22425 to research conducted by DG COMP’s current Chief Economist Professor Massimo Motta an EU infringement decision reduces on average a company’s

valuation by 3.57 and by as much as between 3.03 and 4.55 if the effect of dawn raids is taken into account See L Aguzzoni G Langus and M Molts “The effect

of EU antitrust investigations and fines on a firm’s valuation” 2013 61 The Journal ofIndustrial Eco iomics 29O—338 3O8 310 and 324 In the merger context see by

way of example the suggestion that uncertainty as to whether the UPSTNTExpress transaction would be approved by the Commission contributed to a decline in TNT’s

share price See Bloomberg News MJ Credeur A White and A Webb “UPS TNT Deal Stirs Investor Doubt in EU Approval Struggle” November 12 2012 available

at Accessed October 28 2014 “sIfter TNT shares flirted with

UPS’s 9.50 euroashare offer price they have given up most of a 54 percent takeover premium and ended last week at 7.35 euros That drop shows doubts about the sale

after the top EU antitrust official urged ‘substantial remedies’ according to eight analysts surveyed by Bloomberg” The transaction was ultimately prohibited in February

2013 Case COMPM6570 UPSTNT Express Commission decision of January 30 2013Code on Ethics amid Imitegritv ofDG COMP Staff Version 3.1 January 2013 the “Code on Ethics and Integrity” para 93

‘ C’ode on Ethics and Imitegrity ofDG COMP Staff pars 114

32code on Ethics and Integrity ofDG COMP Staff pars 94

2015 36 ECLR Issue I 2014 Thomson Reuters Professional UK Limited and Contributors2015 36 ECLR Issue I 2014 Thomson Reuters Professional UK Limited and Contributors

4 European Competition Law Review Public comment on active antitrust cases 5

prejudgmenL In 1999 following the initiation of legal

action before what is now the General Court it

apologized to the Federation Internationale de

l’Automobile “FIA” for comments reportedly made

about an on—going investigation into certain of FIA’s

commercial arrangements and for handing out to

journalists at a December 1997 press conference a

“warning letter” apparently sent to FIA The Commission

expressed “regret” about the statements in question which

it acknowledged “have been understood as prejudging

issues relating to the FIA”and in respect of the “warning

letter” distributed to journalists undertook to “see to it

that this does not happen in the future.”34 Finally the

Commission pledged to ensure that “any future statement

will make it clear that no decision has been taken as long

as this remains the case.” 35

The need to avoid any impression of prejudgment is

all the more important given the slim prospects for

successfully bringing an appeal to the EU Courts on the

ground that a given investigation has been procedurally

flawed due to pre judgment Although the EU Courts

have confirmed that oral statements may in certain

circumstances be subject to judicial review 36 such

statements generally lack the requisite legal effect to be

“binding on and capable of affecting the interests of the

applicant by bringing about a distinct change in his legal

position.” 37 In the FIA case the application brought

before the EU Courts challenged the Commission’s

“decision” to provide journalists with a copy of the

allegedly prejudicial “warning letter.” 35

Moreover in cases where prejudgment has been

alleged the EU Courts have been reluctant to annul the

decisions in question requiring applicants to bear the

burden of demonstrating that a contested decision would

not have been adopted or would have been materially

different had the procedural irregularities not occurred 39

This burden is difficult to discharge to the relevant

evidentiary standard The EU Courts’ jurisprudence in

this respect may be contrasted with that of the European

Court ofHuman Rights “ECtHR” which has recognized

it may be difficult to show how apparent bias or

pre judgment has affected the outcome of a given

proceeding 4 but has nevertheless found a violation of

due process in a number of cases41 holding that

“it is no answer to a charge of bias to look at the

terms of a decision and to say that no actual bias is

demonstrated or that the reasoning is clear cogent

and supported by the evidence.” 42

E Striking the right balance

The increased profile and importance of antitrust

investigations has been matched by heightened media

and public interest in ongoing cases In response to that

interest the Commission has become increasingly

transparent it maintains and updates daily a database

containing the procedural status of active cases 43 responds

to questions from journalists at regular briefings issues

detailed press releases explaining its then current thinking

on matters under investigation cases 44 including when it

issues a statement of objections or opens an indepth

investigation in merger cases summarizes developments

in weekly enewsletters 43 and publishes annual reports

that include descriptions of important decisions adopted

during the prior year 46 In addition unlike in the United

States the Commission renders lengthy reasoned

decisions and DG COMP officials often write

commentaries about important cases or in the case of the

Competition Commissioner present decisions at press

conferences and give speeches at conferences

Accordingly the Commission has injected considerable

transparency into the application of EU antitrust rules

Notwithstanding the alreadysignificant degree of

transparency concerning ongoing cases journalists and

others including speculators and market analysts who

follow the outcome of antitrust proceedings are eager to

obtain additional information about developments in

high profile cases Although it may be unrealistic to

expect Competition Commissioners to refrain from

responding to questions about the status of ongoing cases

and the Commission’s then current thinking on matters

under investigation interest in such cases makes it all the

more important that Competition Commissioners are

careful in their public comments lest they be

misunderstood to have prejudged or pre determined the

outcome 47 The following examples from former

Commissioner Almunia’s tenure underline the difficulties

associated with striking the right balance

In connection with the Lundbeck and

Servier cases then CommissionerAlmunia

signaled the Commission’s intention to

reach adverse decisions in October 2012

well before the investigations in question

had ended stating that

“i n the pharmaceutical industry

Lundbeck and Servier received our

objections before the summer break

We are concerned that these

companies misused their patents to

keep markets closed to cheap generic

medicines I hope that the decisions

we will adopt—hopefully in 2013

will change current practices by some

players in the industry that leave a lot

to be desired.”48

Fines were imposed on Lundbeck in June

2013 and on Servier in July 2014

• In connection with the Libor and Euribor

investigations where there were important

questions about whether the conduct at

issue was subject to competition law at all 49

then Commissioner Almunia was reported

as having said in September 2012 when

the Commission’s investigation was at an

early stage 5 that

“according to competition rules we

need to enforce and implement based

on the sales turnover figures affected

by the cartel We also need to

account for gravity of infractions I

think in this case this level of gravity

is above average.” 3’

In August 2014 the European Ombudsman

opened an investigation into Credit

Agricole’s complaint that “Almunia and

his team trampled on its defense rights by

announcing last year that a cartel existed

before giving it a proper chance to fend off

the accusation.” 52 The Ombudsman’s

investigation is pending at the time of

writing

• In connection with the Deutsche

BdrseNYSE Euronext transaction

then Commissioner Alrnunia told the

European Parliament several months before

the transaction had been notified that

“f rom the competition point of view

I tend to prefer models that are not a

vertical silo the model operated by

Deutsche Börse More open

competition more opportunities this

more open business model together

33Action brought on May 29 1998 by Fédération Internatsonale de ‘Automobile against the Commission oft se European cosnownities T 85 98 1998 OJ C234 34

Commission PPrreessss RReelleeaassee ccoommmmiissssiioonn ssttaatteemmeenntt

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ppeennddiinngg ccoouur ti ccaassee rreeggaarrddiinngg FFoorrmmuullaa OOnnee BBrmusssseellss

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36Ai Frances’ Commission 1994 ECR 11121 at 43 54 General Court accepted as admissible an annulment actiois brought by Air France against an oral statement

made by the Competition Commissioner’s spoke man that the acquisition of Dan Air by British Airsvays was not notifiable under the EU Merger Regulation on the ground

that the statement had legal effect

37IBMcomp v onunission ofthe European Communsties 60 81 1981 ECR 2639 at 9 See alsoAirFrances commission 1994 ECR 11121 at 43 and Assicurazioni

Genera i SpA v C’ommission ofthe European communities T87 96 1999 ECR 11 203

35Fédération Internationa e de I ‘ Auto nobi e against the omnission oft se European Communities T 85 98 1998 OJ C234 34395ee eg UnitedBra ids Co v Commission ofthe European communities Rect catton 27 76 1978 3 CMLR 83 at 280]—288 Court of Justice rejected United

Brands’ contention that the reported view of a Commission official before an infringement decision had been adopted disclosed pre judgment due to a lack of evidence

that “the contested decision would not have been adopted or would have been different had it not been for these disputed statements which are in themselves regrettable”

or that theywould have had “an adverse effect on the way the procedure is normally canied out” BASFAG v commission ofthe European communities T15 02 2006ECR 11 497 at 591]—593 General Court rejected contention that press reports concerning the size of a fine that would be imposed on BASF the day before the College

of Commissioners met to adopt the contested infringement decision constituted procedural unfairness finding that irregularities “may lead to annulment of the decision in

question if it is established that the content of the decision would have been different if that irregularity had not occurred” and Volkswagen AG v Commission ofthe

Eisropean commuutjes T 62 98 2000 ECR 11 2707 at 279]—284 and Volkssvagen AG v commission ofthe European communities C338 0o P 2003 ECR19189 at 154]—167 General Court rejected a claim to annul a decision adopted by the Commission afterthe amount of a fine to be imposed on Volkswagen was reported

in the press before the draft decision had been shared with the Advisory Committee

45See eg EC1HR Tsfayo v United Kingdom 60860 00 2009 48 EHRR 18 November 14 2006 at 33 “ one of the essential problems which flows from the

connection between a tribunal determining facts and a party to the dispute is that the extent to wlsich ajudgment of fact maybe infected cannot easily be if at all discerned

The influence of the connection may not be apparent from the terms of the decision which sets out the primary facts and the inferences drawn from those facts”Tsfayo 2009 48 EHRR 18 at 33 See too EC1HR Buscemj vItals 29569 95 September 16 1999 at 64]—69 ECtHR determined that a judge had not acted

impartially and violated art6 1 ofthe ECHR in commenting on an on going matter in a way that could be understood as taking an unfavourable view ofthe case in question

42See eg ECtHR Lavents v Lah’ia 58442 00 November 28 2002 at 11 8]—t 21 ECtHR found a lack of impartiality and a violation of ECHR Article 61 because a

judge engaged in public criticism of the defence publicly suggested that complete acquittal of the accused was not possible and expressed surprise that a defendant had

pleaded not guilty and Oujidv Croatia 2011 52 EHRR 26 at 6lJ68 ECtHRidentifieda lack of impartiality and a violation of ECHR art6l because during

disciplinary proceedings the President and two other members of the National Judicial Council gave interviews suggesting bias

43Available at ittp ec eiuopa eisconipetitioti elojade tsef Accessed October 28 2014Available athttp eisropaeu rapid5earch e5idtht sik i Qrdsaitttt Accessed October28 2014 and httpeuropa euapidsearc iresil tht i2ke sods

—mnemger ocale ei Accessed October 28 2014 See too DG COMPAntitrustMa isa ofProcedures March 2012 Chapter 10 pars 17Available at http ec eumvpa euconipetitioli pilb icatiosisiveek y nesvssum nayd ht Accessed October 28 2014

46 at sttpeceuropa eu competitson publicatio isan iisa meport i idexht til Accessed October 28 2014

By way of background EU investigations in antitrust cases may last several years aisd in merger cases several months before a statement of objections akin to a

prosecutorial brief is issued articulating the Commission’s concerns about the legality of a particular agreement practice or transaction Under established jurisprudence

of the EU Courts a statement of objections is a preparatory document that contains a prelinsinary finding of fact and law See Aalborg Portland AS v Commission of the

European conunisntties C 204 00 P 205 00 P 211 00 P 2 13 00 P 2 1700 P 2 19 00 P 2004 ECR I I 23 at 67 Britis i American Tobacco Co Ltd v conimission of

t ie European C’oni nunittes 142 84 1986 ECR 1899 at 70 and IBM Corps Comnussion oft se European communities 60 81 1981 ECR 2639 The EU Courts

have further confirmed that the Commission is not obliged “to maintain the factual or legal assessments” advanced in a statement of objections or “to explain any differences

with respect to its provisional assessments set out in the statement of objections.” lBerte smann AG v Independent Music Publishers Lahels Association IMPALAC4l306 P 2008 ECR 14951 at 64]—65 and 71 Findings reached in a statement of objections do not carry any evidentiary weight of their own and may be

departed from in a final decision Accordingly companies’ rights of defense are exhausted only once they have been afforded an opportunity to respond to a statement of

objections present their views at an Oral Hearing and adduce additional evidence and the Commission Isas taken a final decision

48J Almuisia “Presenting the Competition Policy Work Progransme for 2013 14” October 8,2012 Speech 12 701

49See eg In reLIBOR Based Fin Instruments Antitrust Litig 666 738 935 F Supp 2d SONY 2013 and Laydon vMizuho Bank Ltd No l2cv 3419 GBD2014 WL 1280464 SDNY Mar 28 2014

December 2013 settlements with eight banks were announced Antitrust Commission floes banks € 1.71 billion for participating in cartels in the interest rate derivatives

industry Commission Press Release of December 4.2013 IPl31208 “What is shocking about the LIBOR and EURIBOR scandals is not only

tls

e

manipulation of

benchmarks which is being tackled by financial regulators worldwide but also the collusion between banks who are supposed to be competing with each other” and in

April 2014 statements of objections were issued to a number of other banks Foo Yun Chee “EU Commission charges HSBC JPMorgan Credit Agricole with rigging”

Reuters May 20 2014 available at httpwwscreuters comarticle 2014 05 20 useu bamiks euivriggiiig idUSBREA4JO8W2OJ4O52O Accessed October 28 2014“AR Rego “Gravity’ of Conduct over lnterbank Rates ‘Above Average’ Almunia says” MLex September 24 2012 available at ittp sswss nilexconi E U Content

aspx 1D276715 Accessed October 28 2014

‘ 2Bhoomberg News G Sebag “Credit Agricole Sparks Probe of EU Bias on Rate Rigging” September 24 2014 available at http si’wss bloombemg conihiesvs 2014 09

23 creditagricolesparksprobe ofeu bias ineuribor riggingcase htnil MLex L Crafts “EU Commission faces probe over Eunbor cartel comments” September 23

2014 available at httpsvss’sinilex comEU Content aspxID59 286 Accessed October 28 2014 See also MLex L Crofts “ ICAP files complaint about EU Libor

investigation at administrative watchdog” October 13 2014 available at ittp svwss mlexcons EU Content aspx1D598149 Accessed October 28 2014 reporting that

ICAP another company under investigation in relation to LIBOR rates had lodged a complaint with the Ombudsman concerning “similar issues to those raised in Credit

Agricole’s case”

2015 36 ECLR Issue 1 2014 Thonssois Reuters Professional UK Limited and Contributors

2015 36 ECLR Issue I 2014 Thomson Reuters Professional UK Limited sod Contributors

6 European Competition Law Review Public comment on active antitrust cases 7

P Stafford and T Demos “ Deutsche Bdrse deal faces hurdle” Financial Times March 22 2011 available at http wwsv ft com int1cmss0e128d6 78 54d9 IleO 9 613

OUI44feab49a hlnjl axzz3CoTQeZQn Accessed October 28 2014 “f rom the competition point of view I tend to prefer models that are not a vertical silo the model

operated by Deutsche BSrse More open competition more opportunities this more open business model togetlser with interoperability from the competition point of

view is preferred” See too Bloomberg News A White “Deutsche Boerse NYSE Deal Faces Lengthy EU Antitmst Revie Almunia Says” March 22 2011 available

at Accessed October 28 2014 “I will

not be surprised if this merger once it is notified will be one of those cases where we are obliged to go to phase two”J Almunia “State aid control usa resolution tool in the EU,” Eurofi Financial Forum 2011 September 15 2011 Speech 11577Case COMPM61 66 Deutsche Bdrse NYSE Emonext Comnsission decision of February 1 2012

6D Nelson “Memo reveals BC split over Deutsche Bdrse NYSE objections” MLex October 20 2011 available at hopsvsvwmlex comEU Content aspxID 183679

Accessed October 28 2014

7See eg A Barker and R Waters “Brussels takes tough stance on Google” Financial Times January 10 2013 available at http svsvw ft comintl cms s02b5bead6

5b3c 11e2 8d06 OOl44feab49a htmlsiteeditionintlaxzz3BJsBphcq Accessed October 28 2014 and “Almunia won’t budge on Google after FTC decision” Global

Competition Review January 11 2013 available at Accessed October

28 20143tSee eg A Barker and R Waters “EU rejects Google’s antitrust deal again” Financial Thnes Septembcr 8,2014 available at http wsvwJi comintl cmss04aJ20576

3 75 7l e4 8472 00144feabdc0 htmlsiteedition intl axzz3Co5jZU9m Accessed October 28 2014 “Some complainants have introduced new arguments new data new

considerations We now need to analyse this and see if we can find solutions Google can find solutions to some of these concems that we find justified”

59See eg T Fairless “EU Antitrust Chief Defends Landmark Google Deal” Wall Street Jout nal May 15 2014 available at httponlinewsj com nesvsarticles

SB100014240527023049083 045795633415371 74798 Accessed October 28 2014 thenCommissioner Almunia reportedly “launched a robust defense of a landmark

deal with Google Inc.,” stating that “ I’m pretty sure of my arguments” and “I think

it’s perfectly possible to complete the case in the weeks after the summer break”

and T Fairless “Genuan French Pressure Led To EU’s About Face On Google” Wall Street Journal September 10 2014 available at httponline ss’sjcomarticles

german french pressure ledtoeus about faceon google 1410382048 Accessed October 28 2014 reporting that “after months of critical comments from top EU

politicians including the economy ministers of Gennany and France then Commissioner Almunia admitted that he was seeking fresh concessions from Googlefor an

unprecedented fourth time”

65See eg “Almunia Google commitments are not acceptable” Global Competition Reviess’ December 20 2013 available at http globalcompetitionreview coin news

article34938 almuniagoogle comniitments not acceptable “At this moment there is little time left but the ball is still in Google’s court But within a short timeframe the

ball will be here and then it will be the moment to take a decision” and V Mock “EU Issues Stark Waming to Google” Wall Street Journal January 15 20t4 available

at httpoiline ssujco nneissarticles SB10001424052702303465004579322422379377920 Accessed October 28 2014 then Commissioner Almunia quoted as having

said “Google had one

last

chance to put forward proposals to definitely address concems that it is abusing its dominance in online search,” insisting “We need more not

during the next year but during the next weeks I have not yet received this answer”61 See eg A Barker “EU antitrust chief says Google case may be bigger than Microsoft” Financial Times September 23 2014 available at httpsvwsvft comintl cmss

0e4e9f1J8 42ff 11e4 9a58 OOl44feabdcO htmlaxzz3FkBcV200 Accessed October 28 2014 “Microsoft was investigated for 16 years which is four times as much as

the Google investigation has taken and there are more problems with Google than there were with Microsoft During this five year legislative term we will continue

to talk about Google and your colleagues will continue to do so in the next legislative tenn”

G Conc uson

62 Code on Ethics and Integrity ofDC COMP StaJ7 Version 3.1 January 2013 “Code on Ethics and Integrity” para 96 See also S Heather “Due process in competition

proceedings Procedural faimess within administrative enforcement agencies for antitrust and competition law A US point of view” 2010 3 ‘ oncurrences l722para 24 proposing that “pubhic statements by the agency regarding formal clsarges or otlser pending proceedings should make clear that the agency has reached no

conclusion about the merits of the complaints or the lawfulness of the conduct that is the subject of the complaint or investigation”

63 Code on Ethics and Integrity para 110 See too DC Competition Antitrust Manual ofProcedures March 2012 Cli 10 para 17

64 Code on Ethics and Integrity para 111 “In principle contacts with the media shall be restricted to the Commissioner’s spokesperson and press officer Requests for

information or statements made directly to DG COMP should be redirected to the office of the spokesperson” and para 115 “Any public announcement of a new policy

initiative orprovision of new information to the media or the outside world on on going activities and cases shall be made by the Commissioner either personally or through

a spokesperson unless he asks the Director General or through him other DG COMP officials to take charge of the task”

65DOJAntitIisst Division Manual ChVII Antitrust Division Relationships with Other Agencies and the Public Section H2 available at httpsrww justice go vatrpublic

divisionmanual chapter7 pdf Accessed October 28 2014 the “Antitmst Division Manual”66 DOJAntitrust Division Manual ChV11 Section H2

67DQJA titrust Division Manual Ch VII Section H266DOJAntitrust Division Manual Ch VlI Section H269DOJAntitriIst Division Manual Ch VII Section H27tSee US FTC Administrative StaffManual Ch 17 Section 2.5 a’ ailable at httpw vwflc gov sitesdefaulp’files attachnients ftc administratis’e staff tnanuals

chl 7publicinforniationandeducalion pdf Accessed October 28.2014 which establishes a general rule that FTC staff should not initiate media contacts about investigations

or otlser non public law enforcement matters under any circumstances and that any media communications should be handled by the Office of Public Affairs

71 Compare for example tlse January2014 comments of Bill Baer Assistant Attomey General of the DOJ’s Antitrust Division on a possible combination of Sprint and

T Mobile “It’s going to be hard forsomeone to make a persuasive case that reducing four firms to three is actually going to improve competition for the benefit of American

consumers Any proposed transaction would get a very hard look from the Antitrust Division” B Wyatt “Wireless Mergers Will Draw Scrutiny Antitrust Chief Says”

Nes,’ York fines January 30 2014 available at

r0 Accessed October 28 2014 with the December 2013 comments of Tom Wheeler Chainnan of the Federal Communications Commission “The mobile business

is today with four carriers a competitive business and it’s important it stay that way” R Knutson B Henning and T Gryta “Sprint Working on Bid for T Mobile,” Wall

Street Journal December 13 2013 available at httponline wsj com newsarticles SB100014240527023O32936O4579256S61000513396 Accessed October 28 2014

72See eg C’ode of Conduct for United States Judges Canon 3 Section A6 aailable at httpsiwisuscourts gov RulesAndPolicies CodesOff’onduct

C’odeConductUnitedState iJudges acpx Accessed October 28 2014 “A judge should not make public comment on the merits of a matter pending or impending in any

court”

with interoperability from the only a dominant position I think—I F The case for clearer guideNnes As a result of strict compliance with the Antitrust

competition point of view is fear —there is an abuse of this DG COMP has adopted a Code on Ethics and Integrity FDTivCi s7ionarMe acnauuatilo uosffiacbiaolust fwrohmat ththeeDyOsJa y apsuwbelilcllyas athned

preferred.” 33 dominant position.” 7 that prohibits officials from “creating confusion or rarely if ever comment publicly on the substance of

Following notification he reportedly Subsequently in response to intense public uncertainty when making public statements” and ongoing matters other than through carefullyscripted

expressed interest he commented further on the case 38 “discussing any case or policy matter which is still at the press releases 71 Importantly this restraint is exercised in

including to make Irnown his thinking on preparation or discussion stage on which the Commission a judicial system where DOJ and FTC officials act as

“concern that a very large player may commitments offered by Google 39 to has not adopted an official position.” 62 The Code further investigators and prosecutors but have no power to

monopolise the derivatives markets in encourage improvements in those provides that “contacts with the media should be handled impose fines or to block a merger instead they must

Europe eliminating the possibility commitmentstu and to identii~’ other aspects carefully by all Commission staff’ and recognizes that enjoin a court to do both if no settlement can be reached

ofnew entry and user flexibility that of Google’s business that might merit “this is of specific relevance for DG COMP staff given u judges who exercise decision making powers akin

would be unacceptable to us.”34 investigation by his successor 6’ the nature of the work and the immediate consequences to those of the Commission avoid making any public

In February 2012 the transaction was There is no suggestion that Commissioner Almunia’s twhoartlda”

n6

y3

pOufbfilcicialsstaateremednirtecmteady thoavcehaonnnetlheanbyusmineedsias

ca

ot

mthemeenndt

oo

nf

tchaesepsrotcheeeydhinegasr uinntqiul ejusdtiognm 7e2nt is rendered

prohibited 53 Press reports suggest that an reported statements in these cases biased the outcome of requests to the Competition Commissioner 64

internal memorandum authored by DG the investigations in question The statements in question The Code although valuable is less forceful than

Enterprise was critical of then typically summarized the Commission’s then current guidance developed by the Antitrust Division of the US

CommissionerAlmunia’s public comments thi cing and were understood by investigating officials Department of Justice “DOJ” which prohibits officials Sound principles of good administration require

contending that they “repeatedly prejudged and those familiar with the proceedings in question to including the agency heads from commenting on active investigators and decision makers in antitrust cases to

the outcome of this investigation in reflect no more than the Commissioner’s preliminary proceedings other than through the DOJ’s Office ofPublic avoid any impression of predetermination Where as is

public.” 36 views Nevertheless since these cases were complex and Affairs63 The Antitrust Division Manual states that the case in the European Union the investigator also

In connection with the ongoing Google at times controversial any expression of opinion by the effectively acts as the decision maker the case for

investigation then Commissioner Almunia Competition Commissioner risked giving the appearance “public out ofcourt statements regarding discretion is especially strong Given the intensity of

was reported as having said at an early of prejudgment The circumstance that the outcomes in investigations indictments ongoing litigation and media interest in high profile antitrust cases Competition

stage in the Commission’s investigation certain of these cases were consistent with public other activities should be minimal consistent with Commissioners are under considerable pressure to

thatcomments made by then Commissioner Almunia while the Department’s responsibility to keep the public comment on their status and the issues under

“we are still investigating but my the investigations in question were ongoing may have informed Such comments as are made are handled

conviction is that Google are aggravated that perception through the Office of Public Affairs.” 66 tinovreesmtigaaintiosnil

eannt

din

it

sisucphrosbiatubalytiounnsr eaTlhisatitcstaoide xptheecrtethiesma

diverting traffic They are The Manual further states that “t he Division does thin line between disclosing the Commission’s current

monetising this kind of business the not wish to prejudice the rights or affect the interests of views on a given matter and expressing an opinion that

strong position they have in the anyone accused of a crime or a civil violation of the risks giving the appearance ofpre determination Striking

general search market and this is not law,” 67 that “generally even the existence of particular the right balance is difficult In case of doubt the need

criminal investigations should not be acknowledged or to respect due process rights and avoid any impression

commented upon,” 66 and that of pre judgment militate strongly in favor of caution An

“because charges that result in an indictment or a ugpredaatteerdcElaUritCyoodne othfeCcoinrcduumctsctaonucldesalisnowusheicfhulliyt pmroavyidbee

civil action should be argued and proved in court appropriate for Competition Commissioners to comment

not in a newspaper or broadcast public comment

on such charges should be limited out of fairness to publicly on active investigations

the rights of individuals and corporations.” 69

2015 36 ECLR Issue 1 2014 Thomson Reuters Professional UK Limited and Contributors 2015 36 ECLR Issue I c 2014 Thomson Reuters Professional UK Limited and Contributors