COMPETITION • EUROPEAN LAW • PROCEDURE
The Commission is required to comply with the procedural guarantees provided for by EU law. Among the guarantees granted by the EU legal order, is the principle of sound (alternatively expressed as “good”) administration, a general principle laid down in Article 41 of the Charter of Fundamental Rights, which requires the relevant body to handle with care and impartiality all the relevant facts of the case at hand. Subjective impartiality i.e. no member of the Commission who is responsible for the matter may show bias or personal prejudice, is different in that respect from objective impartiality which requires that there be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the institution concerned. The General Court has stated that objective impartiality is guaranteed in a number of internal documents requiring it to comply with certain rules when communicating publicly, such as the Code of Conduct for Commissioners, the Code of good administrative behavior for Staff of the European Commission in their relations with the public and the Code of Ethics and Integrity of DG Competition.
The Commission infringes the principle of sound (or good) administration when it discloses to the press, before adoption of the decision, the amount of the fine envisaged or within the space of a few days, it clearly makes known to a cooperating undertaking its intention not to disclose the fact that other undertakings have approached its services in order to obtain immunity from a fine, and then indicates to another that a fair warning will be given to it if another undertaking attempts to overtake it in relation to cooperation. By contrast, the conduct of an official of the team responsible for the case who, by his/her verbal remarks, casts discredit on the applicant’s activities, does not infringe the principle of sound administration where the remarks in question were made after the decision was adopted. Statements made by a Commissioner for Competition at a press conference which merely inform the public about investigations in progress, with the discretion and circumspection necessary for the presumption of innocence to be respected, do not contradict the principle of sound administration. Furthermore, the principle of sound administration does not require the Commissioner for Competition to attend the hearings of undertakings, nor does it oblige DG Competition to organize a re-examination of every case by an internal panel. In any case, infringement of the principle of sound administration may lead to annulment of the decision only if it is established that the decision would have been different if that irregularity had not occurred.
