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Antitrust Law Journal

Volume 85, Issue 3

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

Despina Pachnou and Eduardo Mangada Real De Asua


  • Due process is the backbone of the rule of law, and it is essential for the effectiveness and impartiality of antitrust enforcement. Despite individual approaches, there are universal minimum standards, such as those endorsed in the 2021 OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement.
  • Examining due process in EU and U.S. antitrust enforcement, this article focuses on (1) access to the case file versus the protection of confidential information and (2) the protection of legally privileged information.
  • In questions of investigated parties’ and defendants’ access to the case file—including confidential material from third parties—access could be secured through data rooms and confidentiality rings, both of which can allow full disclosure to limited persons while protecting the interests of information providers and shielding business secrets.
  • With respect to privilege, extending legal privilege to advice given by in-house counsel in merger cases can be useful, as can harmonization of legal privilege protection across jurisdictions.
Due Process in Competition Law Enforcement: Minimum Standards on Accessible and Protected Information
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Due process in the enforcement of competition laws has gained significance 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 procedural frameworks and safeguards from other areas of the law and adjusted them in accordance with the corresponding legal system, history, and culture.

Scholars and international organizations have traditionally focused more on the analysis of substantive legal matters and less on process. 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. 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.

With increasing levels of international business activity, companies might be subject to competition enforcement in several jurisdictions for the same conduct or transaction. In this context, international consensus on what constitutes a fair and transparent competition enforcement process, and the observance 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. 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.

This article focuses on two aspects of the enforcement process and aims to contribute to an understanding of minimum due process standards. In Part I, the article addresses the investigated parties’ right to access the case file, in particular regarding exculpatory evidence and materials. Part II discusses the protection of legally privileged information as a component of the parties’ rights of defense and privacy. The article looks at the enforcement practices in the European Union and the United States as well as standards endorsed by the OECD and the ICN in these two areas.

Continue reading the full text of this article in PDF format.