Thursday, March 25, 2010
Posted by D. Daniel Sokol
James Modrall & Ruchit Patel, (Cleary Gottlieb) explain Oral Hearings and the Best Practices Guidelines.
ABSTRACT: On January 6, 2010, the European Commission (the "Commission") published for consultation three "Best Practices" documents. Two of these Best Practices documents contain provisions on the Oral Hearing, namely (1) the Guidelines on the procedures of the Hearing Officers in proceedings relating to Article 101 and 102 of the TFEU (the Hearing Officer Best Practices) and (2) the Guidelines on conduct of procedures concerning Articles 101 and 102 (the Investigation Best Practices) (the Hearing Officer Best Practices and Investigation Best Practices are referred to together as the Guidelines). The general aim of the Guidelines is to improve the transparency and predictability of Commission proceedings and, to this end, the Guidelines seek inter alia to formalize and codify practices relating to Oral Hearings.
This article examines whether the Guidelines satisfactorily address the most common criticisms on the Oral Hearing. In doing so, it (1) sets out some background to the Oral Hearing; (2) outlines six criticisms often leveled at the Oral Hearing process and analyses whether the Guidelines satisfactorily address these criticisms; and (3) makes specific recommendations on how shortcomings may be addressed.