Relaxing whilst doing Competition Law is not an Oxymoron

Man Proc, Confidentiality and Red Little Riding Hood

with 4 comments

In preparation for my lecture at the Brussels School of Competition last week I read a couple of Commission documents that I had not had a chance to look at: the Manual on Procedure and the recent Guidance on Confidentiality Claims. For very different reasons both of them are commendable.

– The Manual of Procedure is much more comprehensive than what I think most of us had expected (even if the non-confidential version -which has 277 pages- appears to be half as long as the original one, which according to the Ombudsman was “roughly 500 pages”). John Temple Lang deserves to be congratulated for having managed to have the European Commission make its Manual public, but the Commission also deserves to be thanked for having favored transparency when drafting the publicly available version.

The only thing I find missing in the public version is a summary description of the content that has not been included in the Manual because of confidentiality concerns. It would have been nice if the Commission had followed the instructions set out in its own guidance on confidentiality claims which state that “[f]rom the non-confidential version it has to be clear where information has been deleted“.

The Guidance on Confidentiality Claims was not a promising document. There can be little of promise in a document whose subject-matter is the most boring thing a lawyer can do (I must confess that I started reading the doc very late at night on Thursday and was very tempted to skip it). But against all odds, the Guidance makes a fun skim read. Yep, I´m serious. Whoever wrote it has done a terrific job. The main characters of the Guidance are Red Little Riding Hood, her Grandma, Big Bad Wolf, Mr. Charming, Snow White, Ms. Magic Mirror, Wicked Step Mother, Mr. Humpty Dumpty, the Little Mermaid, the three little pigs and others.  😉


P.S. By the way, on the procedural front the Commission has in recent times issued not only the Manual, but also a comprehensive set of Best Practices and a new Hearing Officer’s mandate. Query: are any of these moves aimed at preempting a possible challenge to the current procedural framework before the European Court of Human Rights once the EU joins the Convention?

Written by Alfonso Lamadrid

23 April 2012 at 4:36 pm

4 Responses

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  1. […] Blog Chillin’ Competition gibt es einen netten Kommentar zur Veröffentlichung des ManProc zu lesen: The Manual of Procedure […]

  2. Re your final question, you did notice last month’s Bouygues Telecom v. France in the ECtHR?


    23 April 2012 at 6:21 pm

    • Thanks for the comment!

      I did notice it, but I don´t see how that Judgment or the one in Menarini have an impact on my question.

      These cases related respectively to the French and Italian systems, not to the EU one, and their conclusions are premised on the existence of a system which guarantees full judicial review of the decisions adopted by the administrative body. In the case of the EU there are many who argue that the standard or review applied by the General Court and the ECJ is insufficient. If the ECtHR were to agree with this, then there would be a problem. To my knowledge, Bouygues Telecom v France has not dissipated these concerns.

      To be sure, I do not think that the current enforcement system is contrary to the ECHR and I don´t envisage it being successfully challenged in Strasbourg neither.

      What I do think is that the European Commission and even the Courts have (very reasonably) decided to be prudent and address any potential risks well in advance, be it by issuing Best Practices or by pronouncing Judgments such as the one in KME.

      Alfonso Lamadrid

      23 April 2012 at 6:45 pm

  3. ManProc and the Confidentiality Guidance can be an interesting read (ok, only the first one!) but they do not add anything to the menu, I think.
    While I think ECHR will have a say on some specific procedural matters of antitrust proceedings, there will be no Copernican revolution as such.
    In my opinion, the KME judgment gave already many answers.
    On scope of review of legality, KME is the most important ruling from the ECJ after Tetra Laval (mergers), applying such stronger review standard to antitrust decisions.


    23 April 2012 at 8:01 pm

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