Investigations in antitrust case: Getting ready to adopt good behaviours

Antitrust Procedure Workshop organized by Concurrences in partnership with Mayer Brown.


David Bosco (Professor, University of Aix Marseille)

Competition law is a young law and for a number of years now the authorities have been striving to spread a culture of competition. the issues related to competition law are therefore beginning to be well perceived by companies, as evidenced by the growth of compliance programmes. Preparing for a competition investigation also means appropriating the competition culture. The European Commission would not be in favour of these methods, which seems contradictory, because one cannot want to spread the competition culture while at the same time being offended that some people get caught up in it.

The deutsche bahn case provides an overview of the issues at stake in the question of investigations. At the end of March 2011, a system of illegal discounts is detected. European Commission officials investigate at the premises of the German railway undertaking. During the visit, evidence of other offences is uncovered (restricted access to an essential infrastructure). Deutsche bahn maintains that the Commission’s agents were looking for other offences than the one they were supposed to investigate. But the argument was not accepted by the Union Court. It must be said that at no time did the management of Deutsche Bahn express its opposition to the Commission’s investigations, nor did it ask for their dissatisfaction to be recorded in minutes. Consequently, there was no tangible evidence of the abuses they alleged to have committed to support their arguments. It is therefore essential for companies to be fully aware of their rights and the prerogatives of the investigators and, one might be tempted to add, to implement them as soon as possible during the visit and seizure operation.

Photos © Léo-Paul Ridet.

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