A transparent and fair competition enforcement process ensures the impartial and reasonable treatment of subjects of competition investigations. It also improves the accuracy and comprehensiveness of competition enforcement decisions, by making sure that all arguments are heard. Observing due process reinforces the legitimacy of competition enforcement and its credibility vis-à-vis interested parties as well as all citizens.

Over the years, the OECD has developed extensive work on transparency and procedural fairness. In 2010 and 2011, the OECD Working Party on Co-operation and Enforcement held three roundtables on transparency and procedural fairness. In 2014 and 2015, the Competition Committee hosted two roundtables on the institutional design of competition authorities. In 2016, the OECD issued a report on the resolution of competition cases by specialised and generalist courts. In 2017, the Global Forum on Competition held a roundtable on judicial perspectives on competition law, which examined aspects of judicial review of competition enforcement decisions.

Transparency and procedural fairness were also recognised as enforcement standards in OECD legal instruments concerning competition law enforcement. The  OECD Council Recommendation on International Co-operation in Competition Investigations and Proceedings recognises that transparent and fair processes are essential to achieving effective and efficient co-operation in competition law enforcement. The OECD Council Recommendation on Merger Review requires that merger laws should ensure procedural fairness for merging parties. The OECD Council Recommendation on Effective Action against Hard Core Cartels regulates important aspects of enforcement powers and investigation and decision-making against hard core cartels.

VIDEO: Professor Christopher Yoo on procedural transparency and fairness and the draft OECD Recommendation

Latest developments

In 2018, the OECD Competition Committee chose transparency and procedural fairness as one of its long-term themes for 2019 and 2020, acknowledging that procedural defects can taint investigations and harm the rights of individuals, and that the enforcement of competition law should comply with universal transparency and procedural fairness standards. In the context of this long-term theme, the OECD first hosted a roundtable on the treatment of legally privileged information in competition proceedings in November 2018, a second roundtable on the standard of review by courts in competition cases in June 2019 and a third roundtable on the access to the case file and the protection of confidential information in December 2019.

At the same time, the Competition Committee started working on a Recommendation of the Council on Transparency and Procedural Fairness in Competition Law Enforcement, drawing on past OECD work, the discussions at the 2018 and 2019 roundtables and relevant work at other international fora, like the International Competition Network. The draft Recommendation is based on the acknowledgement that competition enforcement should be fair, predictable and transparent, and combine effective rules, impartial institutions and sound enforcement practices.

Contacts

If you have questions, comments or would like further information regarding OECD's work on transparency and procedural fairness, please contact Despina.PACHNOU@oecd.org or Antonio.CAPOBIANCO@oecd.org.

RELATED MATERIALS

Access to the case file and protection of confidential information, 2019

The standard of review by courts in competition cases, 2019

Treatment of legally privileged information in competition proceedings, 2018

Judicial perspectives on competition law, 2017

The resolution of competition cases by specialised and generalist courts: Stocktaking of international experiences, 2016

Changes in institutional design of competition authorities, 2015-2014

Procedural fairness and transparency - Key topics, 2012

Procedural Fairness: Competition Authorities, Courts and Recent Developments, 2011

Procedural fairness: Transparency issues in civil and administrative proceedings, 2010