Practitioner's Survey on Transparency and Due Process in Competition Law Investigations

This survey concerns the transparency and due process procedures of competition law enforcement agencies. It is being conducted by the Non-Governmental Advisors (“NGAs”) of the International Competition Network (“ICN”) who are identified below. We are conducting this survey in parallel to the Investigative Process Project (the “Project”), chaired jointly by the U.S. Federal Trade Commission and the Directorate-General for Competition of the European Commission, currently being undertaken by the ICN’s Agency Effectiveness Working Group (“AEWG”). One of the Project’s areas of focus is the extent to which competition law enforcement agencies’ policies and procedures are transparent and protect due process during investigations and other administrative proceedings. A possible outcome of this Project is the development of international best practices with respect to transparency and due process. The purpose of this survey is to elicit feedback on actual experiences (both good and bad) with transparency and due process from prior investigations and proceedings before competition enforcement agencies. It is drafted primarily from the perspective of an investigation target. However, we are also interested in interactions with competition agencies in other capacities (i.e., complainant, third party, leniency applicant) as well. We are interested in both cartel and non-cartel (i.e., mergers, unilateral conduct, vertical restraints, sector review) matters. This survey only concerns competition law investigations and proceedings at the administrative or agency level -- it does not cover appeals, judicial review, or judicial proceedings, which may be the subject of a future survey. The survey is broken down into sections, in many cases based on various phases of an investigation. Not all questions may be relevant in all situations, and respondents should feel free to skip questions that are not relevant to their response. We request that respondents be as specific as possible in answering this survey. Responses should focus on experiences from individual matters before specific competition enforcement agencies. However, if a respondent would like to discuss experiences from more than one investigation, or concerning more than one agency, he or she is invited to complete this survey more than one time. Finally, in addition to experiences from a particular matter or investigation, Questions 74-79 provide an opportunity for respondents to comment on or discuss a jurisdiction’s practices with respect to transparency or due process in general. We recognize that this survey may request potentially sensitive information about past or current matters pending before competition enforcement agencies. ALL OF THE SPECIFIC RESPONSES GATHERED BY THIS SURVEY WILL BE KEPT CONFIDENTIAL. The results of this survey will be aggregated in a manner that protects both the identities of specific investigations or matters as well as the individual survey respondents, and a summary report will presented to the Project Chairs to give a meaningful overview of the survey responses. All respondents will have an opportunity to review this summary report before it is provided to the Project Chairs. THE DEADLINE FOR RESPONSE IS MARCH 11TH. The NGAs listed below are responsible for initiating this survey, and they will be the only people who will view the direct responses to this questionnaire. As noted above, the summary report that is generated as a result of this survey will be provided to the Project Chairs to encourage them to consider the views and experiences of practitioners as part of the Project. In addition, this summary report may be provided to other organizations (such as the OECD or APEC) which may consider the issue of due process and transparency in competition law investigations. Therefore, we hope and expect the results of this survey will materially inform any ICN recommended practices or other international best practices that are developed in this area. Questions about this survey or the process can be directed to any one of the following individuals. Thank you in advance for your participation in this effort. James Rill, Non-government advisor, ICN - james.rill@bakerbotts.com Chuck Webb, Non-government advisor, ICN - charles.webb@bakerbotts.com Sean Heather, Non-government advisor, ICN - sheather@uschamber.com
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Preliminary Questions






Opening an Investigation









During the Course of the Investigation
















Agency Use of Compulsory Process










Access to the File and Related Issues











Formal Statement of Charges or Statement of Objections









Other Potentially Relevant Issues During the Investigation








Final Agency Decision Making Process














Confidentiality








Concluding Questions









Thank you for your participation!


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