Soft Administrative #EULaw? Some comments on Temple Lang's views on #DGComp Manual of Procedure

Prof. Temple Lang has published an interesting assessment of the European Commission's Antitrust Manual of Procedures: 'The strengths and weaknesses of the DG Competition Manual of Procedure' (2013) Journal of Antitrust Enforcement 1-30. In his very detailed account, Temple Lang identifies a rather lengthy list of shortcomings of the Manual. The most relevant are that:
The Manual does not deal with submissions made to other parts of the Commission. It says nothing about the need for impartiality, or the duty to respect the Charter of Fundamental Rights, or the need to expect judicial review of all decisions. It allows officials to hold meetings without keeping minutes. It says too little about interim measures, and does nothing to reduce the two basic flaws in the Commission's procedure: the same officials draft the statement of objections and the decision, and none of the Commissioners who formally take the decision have seen the evidence or read the arguments. There are several examples of failure to deal with difficult questions, which are precisely those on which guidance is needed.
Certainly, as Temple Lang further elaborates in the paper and despite the general administrative practices of DG Comp meeting a high standard of procedural requirements, there are some shortcomings that, given the increasing transparency of the competition investigation procedures, will most likely lead to actions for judicial review. 

Even if the Manual is only adopted as guidance (and only after the Commission was forced to do so, precisely as a result of Temple Lang's request to access the document under Regulation 1049/2001), it is easy to see how its content, its shortcomings and any instances of non-compliance will be exploited to the furthest possible extent by defendant companies, despite the Commission stressing that 'the fact that the [Manual is] in the public domain does not change [its] character as purely internal guidance to staff. The published modules therefore do not create or alter any rights or obligations arising under the competition rules of the Treaty' (which remains to be seen). As Temple Lang rightly points out 'It seems [...] that companies will be able to claim that they have legitimate expectations that their cases will be dealt with in accordance with the Manual, and that they will be treated equally in whatever way the Manual provides' (p. 15). Therefore, a proper understanding of the content of the Manual and a future correction of its shortcomings are much needed in order to avoid excessive litigation--potentially, on the basis of formalities without significant impact on the outcome of the cases (as Temple Lang acknowledges in p. 26).

In Temple Lang's view, the Manual is particularly lacking as regards the regulation of due process and impartiality, and he raises the issue that the 'principle of good administration' is not expressly discussed, whereas 'this is a legal rule with legal consequences and not merely an administrative standard' (p. 5). This point is relevant. However, the Manual does refer (once...) to the Code of Good Administrative Behaviour, which does analyse and impose compliance with the principle of good administration on all staff of the European Commission [see J Mendes, ‘Good Administration in EU Law and the European Code of Good Administrative Behaviour’, EUI Working Paper Law 2009/09]. A similar criticism is raised by Temple Lang in relation with the duty of sincere cooperation in Article 4(3) TEU (pp. 24-25), but it may equally be counter argued that this is an issue that applies across the broad and that DG Comp staff must know about it as a matter of general training.

Similarly, Temple Lang criticizes that the Manual fails to remind DG Comp officials about the Charter of Fundamental Rights and the European Convention of Human Rights, particularly as regards 'the possibility and intensity of judicial scrutiny' (p. 5). In this regard, the silence in the Manual may be understandable, given the heated debate that surrounds this issue [as I already discussed here]. I agree with Prof. Temple Lang that 'an introduction to the Manual calling attention to the Charter and the fundamental principles of due process would add much to the stature of the document, and to the professionalism of its approach' (p. 5). However, I also see how drafting such an introduction could backfire and could come to restrict the Commission's space for manoeuvre, particularly on the basis of the hardening of such soft law instruments due to the extensive application of the principle of legitimate expectations. Therefore, maybe such omission is not that negative after all.

Other than on these matters of principle, where the position of the Commission may be more justifiable than in Temple Lang's view, the rest of the detailed assessment that he carries out is very accurate and practically oriented, and definitely offers lessons and valuable recommendations for the review of the Manual--which the European Commission has endeavored to undertake 'from time to time'. As Temple Lang suggests, it would be desirable that they do so rather soon, and that they open a proper public consultation along the way. After all, every improvement that can be introduced in the procedures of the European Commission will increase the quality of its Decisions and will reduce the need for judicial scrutiny (as Temple Lang stresses in p. 21, with reference to the case law of the ECtHR)--and, consequently, is a worthy effort.

More generally, the publication of the Manual and the controversies that may arise from it come to support the need for a further development of a consistent set of 'hard' EU Administrative Law rules, particularly as regards infringement procedures against private parties, not only in Competition Law (as Temple Lang also supports, pp. 27-28). In that regard, there are some interesting projects carried out by the members of ReNEUAL.