Due Process in Competition Law Enforcement: Minimum Standards on Accessible and Protected Information.

• Date: 01 January 2024
• Author: Despina Pachnou & Eduardo Mangada Real de Asúa

597

DUE PROCESS IN COMPETITION LAW ENFORCEMENT:

MINIMUM STANDARDS ON ACCESSIBLE AND

PROTECTED INFORMATION

D P

E M R  A*

INTRODUCTION ......................................... 597

I. ACCESS TO THE CASE FILE ........................... 599

A. A   C F   E U ....... 601

B. A  I M

  U S .............................. 606

II. PROTECTION OF LEGALLY PRIVILEGED

INFORMATION ...................................... 609

A. T P R B 

C   L M .................... 612

B. T P  L P H P

I  E ...................... 615

CONCLUSION ........................................... 617

INTRODUCTION

Due process in the enforcement of competition laws has gained signifi-

cance in past decades in parallel with, and as a consequence of, the adoption

of competition regimes across the world and the granting of increasing powers

to competition authorities. Competition law enforcement has imported proce-

dural frameworks and safeguards from other areas of the law1 and adjusted

them in accordance with the corresponding legal system, history, and culture.2

1 Andrew T. Guzman & D. Daniel Sokol, Introduction, in A P

F 1 (D. Daniel Sokol & Andrew T. Guzman eds. 2019).

2 See Despina Pachnou, Due Process in Competition Law Enforcement: The New OECD

Recommendation on Transparency and Procedural Fairness in Competition Law Enforce-

ment, CPI C 2 (Feb. 2022), www.competitionpolicyinternational.com/wp-content/

uploads/2022/02/OECD-Column-February-2022-2-Full.pdf.

* Despina Pachnou, OECD; Eduardo Mangada Real de Asúa, Sciences Po/LSE Masters in

European Affairs. The opinions and arguments in this article are those of the authors and do not

necessarily reflect the official views of the OECD or its member countries.

598 A L J [Vol. 85

Scholars and international organizations have traditionally focused more

on the analysis of substantive legal matters and less on process.3 Still, the due

process of law is essential not only to the formal steps for investigations and

decisions; it also defines their substance and legitimacy. To the extent that due

process promotes meaningful engagement between parties and enforcers, it

allows relevant arguments and evidence to be brought forward and improve

the substance of enforcement. Conversely, an absence of due process is likely

to give rise to complaints and litigation, and it may cause decisions to be set

aside on procedural matters, thus preventing the application of competition

law in cases that might have been correct on the merits.

Due process is the most valuable defense against arbitrariness.4 It helps

competition regimes and authorities in being perceived as just and can inspire

respect for the law based on voluntary compliance; people may be more likely

to comply with the law if they believe that the procedures followed for its

enforcement are fair.5

With increasing levels of international business activity, companies might

be subject to competition enforcement in several jurisdictions for the same

conduct or transaction.6 In this context, international consensus on what con-

stitutes a fair and transparent competition enforcement process, and the obser-

vance of common enforcement principles, become crucial for legal certainty,

enforcement predictability, and the respect of the rule of law.

Divergence in enforcement procedures in different legal systems does not

preclude agreement on broad principles of universal application.7 Recent

soft-law instruments by international institutions like the Organization for

Economic Cooperation and Development (OECD) and the International

Competition Network (ICN) are evidence of the existence of consensus on

good practices and minimum competition law enforcement standards.8

3 See Guzman & Sokol, supra note 1, at 1.

4 See generally Inês Neves & Kim Steffens, Right(s) of Defence, Access to the File and

Fairness in Competition Procedures: A Reflection on the Judgment of the Court of Justice in

Case C-607/18 P, 4 E. C & R. L. R. 260 (2020).

5 Caron Beaton-Wells, Substance and Process in Competition Law and Enforcement: Why We

Should Care If It’s Not Fair, in P F  C P 3, 7 (Paul

Nihoul & Tadeusz Skoczny eds., 2015) (“[T]he potentially most effective, efficient and stable

form of compliance is... based on a voluntary normative commitment to adhere to the law....

[P]eople are also likely to obey a law where they see that law, and its enforcement, as ‘legitimate’,

and... judge legitimacy by whether the relevant legal authorities are procedurally fair.”).

6 See Pachnou, supra note 2, at 2.

7 See D. Daniel Sokol, The Case for Global Best Practices in Antitrust Due Process and

Procedural Fairness, in A P F, supra note 1, at 4, 6.

8 See generally Org. for Econ. Coop. & Dev. [OECD], Recommendation of the Council on

Transparency and Procedural Fairness in Competition Law Enforcement, OECD/LEGAL/0465

(May 10, 2021) [hereinafter OECD, Recommendation], legalinstruments.oecd.org/en/instruments/

OECD-LEGAL-0465; ICN Framework for Competition Agency Procedures, I’ C