The Role of the Hearing Officer in Antitrust Cases. A Critical Assessment of the New Mandate and Practice after 2011

In 1981, under some pressure from the industry, lawyers and academics, the European Commission announced the appointment of a Hearing Officer (HO), ‘duly authorized to chair hearings, vested with genuine autonomy and the right of direct access to the responsible Member of the Commission’. This was intended to increase the objectivity of the procedure and favor better informed decisions. Just one year later, the first mandate was adopted. Initially, the HO was placed under the authority of the Director General for Competition and was solely responsible for the preparation and conduct of the hearing. Subsequently, in 1994, the HO was entrusted with requests for access to file and confidential treatment of sensitive information. And yet, it was only in 2001 that the HO was attached, for administrative purposes, to the Commissioner for Competition and that his final report was made available to the parties and published on the Official Journal. The mandate of the HO was amended once again in 2011 as part of a broader reordering of antitrust procedures. In fact, it should not be forgotten that the Best Practices for the conduct of proceedings were also adopted in October of that same year, followed, in March 2012, by the release of the Manual of Procedures. The former document was issued after a public consultation conducted in 2010, with a strong participation of the legal and business community, to foster ‘understanding of the Commission’s investigation process’. The latter, instead, was the result of a complaint brought before the Ombudsman by a Brussels-based lawyer who lamented the lack of clarity as to the organization of the file in antitrust cases decided under Regulation No 1/2003. Following the proposal for a friendly solution, the Commission accepted to prepare a publicly available and updated version of the internal manual of procedure elaborated by the Directorate-General Competition ‘in order to provide greater transparency about the […] procedures in applying the competition rules’. In light of the above, the present contribution will try to assess the role of the HO in the context of cartel cases and verify the desirability of future reforms in this delicate and complex area of law. To that effect, after some brief considerations on the struggle between the effective enforcement of competition law and the rights of defense of undertakings involved in antitrust cases (Section 2), attention will be drawn to alternative procedural solutions (Section 3) and to the most relevant novelties and missed opportunities of the new Terms of Reference (TR), read jointly with the Best Practices and the Manual of Procedure and in light of the most recent final reports of the Hearing Officer (Section 4). Lastly, based on the applicable legal framework and the gathered empirical evidence, some proposals to further enhance fairness, impartiality and objectivity will be advanced (Section 5).