The European Commission has recently held a consultation on its draft “Best Practices” papers. The principal purpose of these papers is to provide a guide to the day-to-day conduct of antitrust proceedings before the European Commission (E.C.) under articles 101 and 102 on the Treaty on the Functioning of the European Union (equivalent, broadly speaking, to §§ 1 and 2 of the Sherman Act). They are not intended to create new law. Instead, the Directorate General for Competition (D.G. Competition) is seeking to enhance understanding of its antitrust proceedings and ensure that its procedures are viewed and accepted as fair process.
It is worth noting at the outset that the best practices papers assume a high level of importance because D.G. Competition has significant investigative and enforcement powers. Indeed, there is a sharp contrast between the E.U. system and that in the United States, where the Federal Trade Commission and Department of Justice cannot block conduct without a court order. In the European Union, D.G. Competition has the power to start an investigation on its own initiative or based on a complaint from a third party; to investigate the case; to “prosecute” the parties; and to make the final decision, subject to later judicial review.
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