A guide to the changing laws on bribery and corruption in England and Wales

On 6 January 2010 the European Commission published guidance aimed at providing companies with further certainty and transparency about the relationship between them and the European Commission during EU competition law (also known as antitrust) cases. Such cases involve the EU prohibitions on restrictive agreements and on abuse of dominance. The guidance does not apply to state aid cases or merger cases (apart from in relation to submission of economic evidence). Issues covered by the guidance include publicity regarding the opening and closing of competition cases as well as rejection of complaints about breaches of competition law.

The guidance comprises three documents:

• Best practices for antitrust proceedings
• Best practices for submission of economic evidence (antitrust and merger proceedings)
• Guidance on the role of the Hearing Officers in antitrust proceedings

The European Commission is consulting on these documents. Although it notes that it will be applying these documents immediately, the European Commission also emphasises that it welcomes comments on the guidance until 3 March 2010, with a view to adjusting it in the light of comments received. These documents complement the existing law and guidance from the European Commission in this area, for example, the Regulation on the conduct of proceedings under what are now Articles 101 and 102 TFEU, the European Commission's notice on access to its file and the European Commission's notice on the handling of complaints.

Best practices in antitrust proceedings

Notable points include:

• the European Commission states that it will offer state of play meetings to the parties at key points of the proceedings;
• the European Commission explains that it is to publicly announce the opening and closure of procedures, as well as when Statements of Objections have been sent;
• details of practical aspects of using the commitments procedure;
• as regards rejection of complaints, the guidance gives some practical details of how the European Commission will operate, but it does not add a great deal to what is said in the European Commission's notice on the handling of complaints.

An interesting development is the European Commission's statement that its policy is to publish the opening of proceedings on its website and issue a press release, unless such publication may harm the investigation. This is to be welcomed, as to date it has often been very difficult to find out details of the opening of proceedings. However, for cartel cases, it seems that little will change in practice as the Commission has stated that for these cases "opening of proceedings normally takes place simultaneously with the adoption of the Statement of Objections".

Best practices for submission of economic evidence

This document outlines the criteria which submissions of economic data should fulfil. It also explains the practice of DG Competition's case teams when interacting with parties which submit economic evidence.

Guidance on the role of Hearing Officers in antitrust proceedings

The aim of this document is to make the role of the Hearing Officer more transparent. The guidance:

• sets out various tasks of the Hearing Officers as established in their mandates, but also outlines how they are usually carried out;
• explains how companies can make the best use of an oral hearing;
• provides companies subject to investigations, complainants and other third parties with a manual of when they can turn to the Hearing Officers to ensure due process is ensured; and
• explains the reporting obligations and the advisory role of Hearing Officers towards the Competition Commissioner, the College of Commissioners and the addressees of Commission decisions.