A transparent and fair competition enforcement process supports the impartial treatment of investigated persons. 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 and the public.
On October 6, 2021, OECD Ministers adopted the Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement. This document is the first multilateral instrument that provides governments with recommendations on due process standards for competition law. It acknowledges that competition enforcement should be fair, predictable and transparent, and combine effective rules, impartial institutions and sound enforcement practices.
The Recommendation sets 7 specific principles for competition law enforcement:
The Competition Committee will monitor the Recommendation’s implementation, dissemination and continued relevance and will report to the OECD Council five years after its adoption.
READ ALSO: BLOG - Due Process in Competition Law Enforcement -The New OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement by Despina Pachnou (2022)
Chronology of OECD Competition work
Over the years, the OECD developed extensive work on transparency and procedural fairness, leading up to the adoption of the Recommendation.
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.
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 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.
Recommendation on Transparency and
VIDEO: Professor Christopher Yoo on procedural transparency and fairness and the draft OECD Recommendation
Director Disqualification and Bidder Exclusion in Competition Enforcement, 2022
Due Process in Competition Law Enforcement -The New OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement, Despina Pachnou, 2022
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
Transparency and procedural fairness are also recognised as enforcement standards in other 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.
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.