The Role of the Hearing Officer in Competition Proceedings before the European Commission

Wouter P.J. Wils, 2012 - all rights reserved. The Role of the Hearing Officer in Competition Proceedings before the European Commission Wouter P.J. Wils* forthcoming in World Competition, Vol. 35, No. 3, September 2012 and accessible at http://ssrn.com/author=456087 This paper deals with the role of the Hearing Officer in competition proceedings conducted by the European Commission for the enforcement of Articles 101 and 102 TFEU (antitrust proceedings) and under the EU Merger Regulation (merger proceedings). After a brief discussion of the status of the Hearing Officer, the paper examines the various powers and tasks of the Hearing Officer (other than the organisation and conduct of the oral hearing, which is discussed in a parallel paper 'The Oral Hearing in Competition Proceedings before the European Commission', also forthcoming in World Competition, Vol. 35, No. 3, September 2012 and accessible at http://ssrn.com/author=456087). * Hearing Officer, European Commission; Visiting Professor, King s College London. I am grateful to Michael Albers, Dorothe Dalheimer, Jérémie Jourdan, Manuel Kellerbauer and Ailsa Sinclair for their comments on an earlier draft of this paper. All views expressed in this paper are strictly personal, and should not be construed as reflecting the opinion of the European Commission or any of the above mentioned persons. The paper was completed on 20 April 2012. Comments are welcome at Wouter.Wils@ec.europa.eu.

TABLE OF CONTENTS I. INTRODUCTION... 3 II. STATUS... 4 III. GENERAL MISSION... 5 IV. DIRECT ROLE IN THE CONDUCT OF COMPETITION PROCEEDINGS... 7 A. Oral hearing... 7 B. Decisions on applications to be heard by interested third persons... 8 V. INDEPENDENT REVIEW OF ISSUES CONCERNING THE EFFECTIVE EXERCISE OF PROCEDURAL RIGHTS... 10 A. Decisional powers... 10 1. Extension of the time limit for replying to a decision requesting information in antitrust proceedings... 10 2. Right to be informed of one's procedural status in antitrust investigations... 12 3. Extension of the time limit for replying to a statement of objections or for making known one's views... 13 4. Access to the file or access to documents or information... 15 5. Disclosure of business secrets and other confidential information... 17 B. Recommendation powers... 19 1. Legal professional privilege... 19 2. Privilege against self-incrimination... 22 C. Reporting powers... 23 1. Commitment and settlement procedures... 23 2. Other issues regarding the effective exercise of procedural rights in antitrust and merger proceedings... 24 VI. VERIFICATION OF THE RESPECT FOR PROCEDURAL RIGHTS ON THE HEARING OFFICER'S OWN INITIATIVE... 25 A. General reporting powers... 25 B. Specific reporting obligation as to whether the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views... 26 VII. ADVICE TO THE COMPETITION COMMISSIONER ON ANY MATTER ARISING OUT OF ANY ANTITRUST OR MERGER PROCEEDING... 27 2

I. INTRODUCTION This paper deals with the role of the Hearing Officer in competition proceedings conducted by the European Commission for the enforcement of Articles 101 and 102 TFEU (antitrust proceedings) and under the EU Merger Regulation (merger proceedings). Article 101 of the Treaty on the Functioning of the European Union (TFEU) prohibits agreements between undertakings which restrict competition without redeeming virtue. Article 102 TFEU prohibits abuse of a dominant position. The main implementing regulation of Articles 101 and 102 TFEU, adopted on the basis of Article 103 TFEU, is Regulation 1/2003. 1 Under Regulation 1/2003, both the European Commission and the competition authorities of the EU Member States have the task of enforcing Articles 101 and 102 TFEU. 2 This paper only considers enforcement proceedings conducted by the European Commission. Under the EU Merger Regulation (hereafter: "the Merger Regulation"), 3 concentrations that meet certain thresholds must be notified to the European Commission prior to their implementation, and the Commission must prohibit concentrations that would significantly impede effective competition. Antitrust proceedings conducted by the European Commission are further regulated by Regulation 773/2004, 4 and merger proceedings by Regulation 802/2004 (hereafter also: "the Merger Implementing Regulation"). 5 These two implementing regulations provide 1 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L1/1, last amended by Council Regulation (EC) No 1419/2006 [2006] OJ L269/1. 2 Articles 101 and 102 TFEU are also enforced through private litigation. 3 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings, [2004] OJ L 24/1. 4 Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty, [2004] OJ L 123/18, last amended by Commission Regulation (EC) No 662/2008 of 30 June 2008 amending Regulation (EC) No 773/2004, as regards the conduct of settlement procedures in cartel cases, [2008] OJ L 171/3. See also Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU, [2011] OJ C 308/6 ("Notice on Best Practices"). 5 Commission Regulation (EC) No 802/2004 of 21 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of undertakings, [2004] OJ L 133/1, last amended by Commission Regulation (EC) No 1033/2008 of 20 October 2008, [2008] OJ L 279/3. 3

for a (formal) oral hearing as a step in (certain of) the Commission's proceedings, and stipulate that such oral hearings shall be conducted by a Hearing Officer. 6 The function of Hearing Officer was created in the early 1980s, and the powers and functions of the Hearing Officer were expanded in 1990, 1994, 2001, and most recently in 2011. 7 They are currently defined by Decision 2011/695 of the President of the European Commission on the function and terms of reference of the Hearing Officer in certain competition proceedings (hereafter: "Decision 2011/695" or "the Terms of Reference"). 8 II. STATUS The European Commission is a collegiate body composed of a number of Commissioners equal to the number of EU Member States. 9 One of these Commissioners has special responsibility for competition ("the Competition Commissioner"). The Directorate- General for Competition ("DG Competition") is the department of the Commission services that conducts competition investigations, under the authority of the Competition Commissioner. The Hearing Officer is a member of the Commission's staff, appointed by the Commission in accordance with the normal staff regulations. 10 In a departure from the normal rules, Decision 2011/695 provides that "the appointment shall be published in the Official Journal of the European Union. Any interruption, termination or transfer of the 6 Article 14 of Regulation 773/2004 and Article 15 of the Merger Implementing Regulation; see my paper 'The Oral Hearing in Competition Proceedings before the European Commission', forthcoming in World Competition, Vol. 35, No. 3, September 2012 and accessible at http://ssrn.com/author=456087. 7 For a historical overview (not covering the latest changes in 2011), see I.S. Forrester, 'Due process in EC competition cases: A distinguished institution with flawed procedures' (2009) 34 European Law Review 817 at 834-836 and M. Albers and J. Jourdan, 'The Role of the Hearing Officers in EU Competition Proceedings: A Historical and Practical Perspective' (2011) 2 Journal of European Competition Law & Practice 185 at 186-188. As to the further changes in 2011, see European Commission Press release IP/11/1201 'Commission reforms antitrust procedures and expands role of Hearing Officer' (17 October 2011). As to the application in time of the successive terms of reference of the Hearing Officer, see Judgment of the General Court of 14 December 2005 in Case T-210/01 General Electric v Commission, [2005] ECR II-5575, paragraphs 714 to 731. 8 Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the Hearing Officer in competition proceedings, [2011] OJ L 275/29. 9 According to Article 17(3) of the Treaty on European Union (TEU), "in carrying out its responsibilities, the Commission shall be completely independent", and "the members of the Commission shall neither seek nor take instructions from any Government". 10 Article 2(1), first sentence, and recital 6 of Decision 2011/695; recital 6 recalls that "in accordance with those rules, consideration may also be given to candidates who are not officials of the Commission". 4

Hearing Officer shall be the subject of a reasoned decision of the Commission. That decision shall be published in the Official Journal of the European Union". 11 One of the recitals of Decision 2011/695 adds that the Hearing Officer should be "an independent person experienced in competition matters who has the integrity necessary to contribute to the objectivity, transparency and efficiency of [competition] proceedings". 12 Decision 2011/695 stipulates that, in order to ensure independence from DG Competition, the Hearing Officer is attached, for administrative purposes, to the Competition Commissioner, 13 and that, "in exercising his or her functions, the Hearing Officer shall act independently". 14 III. GENERAL MISSION Article 1(2) of the Terms of Reference sets out the general mission of the Hearing Officer as follows: "The Hearing Officer shall safeguard the effective exercise of procedural rights throughout competition [antitrust and merger] proceedings before the Commission". These procedural rights include all rights set out in the applicable regulations, all rights recognised by the Charter of Fundamental Rights of the EU (and hence also all rights guaranteed by the European Convention on Human Rights), as well as all rights recognised in the case-law of the Court of Justice. 15 11 Second, third and fourth sentence of Article 2(1) of Decision 2011/695; for the most recent such publications, see Communication from the Commission Termination of appointment of Hearing Officer, [2010] OJ C 78/1, and Appointment of the Hearing Officer, [2010] OJ C 278/16, as well as Press release IP/10/1114. 12 Recital 3 of Decision 2011/695. 13 Article 2(2) and recital 5 of Decision 2011/695; recital 7 adds that the Commission should provide for supporting staff. 14 Article 3(1) of Decision 2011/695. The attachment to the Competition Commissioner is thus only for administrative purposes. In exercising his functions, the Hearing Officer shall act independently, and shall thus neither seek nor take instructions from the Competition Commissioner. 15 Recital 2 of Decision 2011/695 and recital 37 of Regulation 1/2003; the reference to the Court of Justice must be understood as referring to the Court of Justice of the European Union, the EU institution which includes also the General Court; see Articles 13(1) and 19(1) TEU. For an analysis of the different sources of procedural rights in EU competition enforcement (including the relationship between the Charter of Fundamental Rights of the EU and the European Convention on Human Rights), see my paper 'EU Antitrust Enforcement powers and Procedural Rights and Guarantees: The Interplay between EU Law, National Law, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights' (2011) 34 World Competition 189. 5

It is also clear from the Terms of Reference that in principle the procedural rights of all parties involved in competition proceedings are covered, thus also the rights of complainants and third persons. 16 The Hearing Officer's mission is limited to competition proceedings before the European Commission. The Hearing Officer is thus not competent to deal with complaints in relation to the effective exercise of procedural rights in competition proceedings before the competition authorities of the Member States, even if these complaints concern the cooperation between the Commission and a national competition authority. 17 The Hearing Officer has no role in state aid proceedings or in proceedings pursuant to Article 106(3) TFEU. Whereas the focus of the Hearing Officer's mission is on safeguarding the effective exercise of procedural rights, Article 3(2) of the Terms of Reference adds as follows: "In exercising his or her functions, the Hearing Officer shall take account of the need for effective application of the competition rules in accordance with Union legislation in force and the principles laid down by the Court of Justice". 18 As the Terms of Reference recall, the primary obligation to respect the procedural rights of all parties involved in competition proceedings lies with DG Competition, which is responsible for the conduct of these proceedings. The Hearing Officer provides a safeguard, in that parties may refer to the Hearing Officer for independent review any issues regarding the effective exercise of their procedural rights which have not been resolved in prior contacts with DG Competition. 19 Whereas Article 1(2) of the Terms of Reference sets out the general mission of the Hearing Officer, this provision is largely programmatic, the precise powers and functions 16 Recital 3 of Decision 2011/695. 17 See for instance Cases T-607/11 and T-64/12, Henkel v Commission, currently pending before the General Court, concerning the refusal by the Commission to transmit certain documents to the French Competition Authority for use in proceedings before the latter. 18 Compare with Opinion of Advocate General Geelhoed of 19 January 2006 in Case C-301/04 P Commission v SGL Carbon [2006] ECR I-5915, paragraph 67: "it must be said that the interplay between the fundamental rights of legal persons and competition enforcement remains a balancing exercise: at stake are the protection of fundamental rights versus effective enforcement of [EU] competition law. As the Court of Justice held in Eco Swiss, [Article 101 TFEU] is a fundamental provision which is essential for the accomplishment of the tasks entrusted to the [Union] and, in particular, for the functioning of the internal market. [Article 101 TFEU] forms part of public policy. [ ] It is self-evident that the effective enforcement with reasonable means of the basic tenets of the [EU] public order should remain possible, just as it is evident that the rights of the defence should be respected too." 19 Recital 8 and Article 3(7) of Decision 2011/695. 6

of the Hearing Officer being set out in the various detailed provisions of the Terms of Reference. 20 These powers and functions can be grouped into four categories, which are discussed in detail in the following chapters: First, the Hearing Officer plays a direct role in the conduct of competition proceedings, in that he organises and conducts the oral hearing, and decides on applications to be heard by interested third persons. Secondly, parties involved in competition proceedings may refer issues relating to the effective exercise of their procedural rights to the Hearing Officer for independent review. Depending on the procedural right and the situation concerned, the Hearing Officer has decisional powers, may make a recommendation, or may report on the matter to the Competition Commissioner and to the College of Members of the Commission. Thirdly, on his own initiative, the Hearing Officer may, and to a certain extent must, verify the respect for procedural rights, and report on the matter to the Competition Commissioner and to the College of Members of the Commission. Finally, the Hearing Officer may provide advice to the Competition Commissioner on any matter arising out of any antitrust or merger proceeding, including thus not only procedural but also substantive matters. IV. DIRECT ROLE IN THE CONDUCT OF COMPETITION PROCEEDINGS Commission competition proceedings are in principle conducted by DG Competition. By way of exception, two parts of the proceedings are conducted directly by the Hearing Officer: the oral hearing, and decisions on applications to be heard by interested third persons. A. Oral hearing At the request of parties to whom the Commission has addressed a statement of objections (or also, in merger proceedings, other involved parties, that is: parties to the concentration other than the notifying parties), an oral hearing will be held, so that such parties can further develop their written submissions. The Hearing Officer organises and conducts this oral hearing. 21 This is the oldest task of the Hearing Officer, going back to the creation of the function in the early 1980s. 22 20 See Article 1(1) of Decision 2011/695. 21 Articles 6(1) and 10 of Decision 2011/695. 22 See note 7 above. 7

For a detailed discussion of the oral hearing, the reader is referred to my paper 'The Oral Hearing in Competition Proceedings before the European Commission'. 23 B. Decisions on applications to be heard by interested third persons In antitrust proceedings, the Commission must, before taking an adverse decision, give the undertakings or associations of undertakings which are the subject of the proceedings the opportunity of being heard. 24 Complainants must also be given the opportunity to be heard. 25 Other natural or legal persons also have a right to be heard, provided that they show a sufficient interest. 26 Similarly, in merger proceedings, the Commission must, before taking an adverse decision, give the notifying parties as well as other parties to the concentration the opportunity of being heard. 27 Other natural or legal persons showing a sufficient interest are also entitled, upon application, to be heard. 28 Article 5 of the Terms of Reference empowers the Hearing Officer to decide whether third persons are to be heard, after consulting the Director from DG Competition responsible for the case. 29 23 Forthcoming in World Competition, Vol. 35, No. 3, September 2012 and accessible at http://ssrn.com/author=456087. 24 Article 27 of Regulation 1/2003 and Articles 10 and 11 of Regulation 773/2004. 25 See Articles 7(2) and 27(1) of Regulation 1/2003 and Articles 5, 6 and 7 of Regulation 773/2004, and Commission Notice on the handling of complaints, [2004] OJ C101/5. 26 Article 27(3) of Regulation 1/2003 and Article 13 of Regulation 773/2004. Recital 32 of Regulation 1/2003 clarifies what is meant by "a sufficient interest", namely that the third party's interests may be affected by a decision, and recital 11 of Regulation 773/2004 indicates that consumer associations that apply to be heard should generally be regarded as having a sufficient interest, where the proceedings concern products or services used by the end-consumer or products or services that constitute a direct input into such products or services. 27 Article 18 of the Merger Regulation and Article 11(a) and (b) and 13 of the Merger Implementing Regulation. 28 Article 18(4) of the Merger Regulation and Articles 11(c) and 16 of the Merger Implementing Regulation. According to these provisions, a sufficient interest always exists for members of the administrative or management bodies of the undertakings concerned and the recognised representatives of their employees, as well as for consumer associations, where the proposed concentration concerns products or services used by final consumers. The General Court has held that "the Commission cannot interpret Article 11(c), second indent of Regulation No 802/2004 in restrictive terms which limit the application of that provision, in essence, to cases in which a merger has direct effects on markets concerning ultimate consumers"; Judgment of 12 October 2011 in Case T-224/10 Association belge des consommateurs test-achats v Commission, not yet published in ECR, paragraphs 40 to 44. 29 Article 5(2) of Decision 2011/695 adds that, in assessing whether a third person shows a sufficient interest, the Hearing Officer shall take into account whether and to what extent the applicant is 8

Applications to be heard by interested third persons must be submitted in writing, and explain the applicant's interest in the outcome of the procedure. 30 In antitrust proceedings, applications to be heard can be submitted from the date of the initiation of proceedings and until the Advisory Committee has delivered its opinion. 31 In merger proceedings, applications to be heard can be submitted from the date of the notification of the concentration and again until the Advisory Committee has delivered its opinion. 32 Where the Hearing Officer considers that an applicant has not shown a sufficient interest to be heard, he must inform the applicant in writing of the reasons thereof, and set a time limit for a further written submission. If the applicant responds within the time limit and the written submission does not lead to a different assessment, the Hearing Officer will take a reasoned decision. 33 If the application to be heard is granted by the Hearing Officer, DG Competition will then inform the interested third person in writing of the nature and subject matter of the procedure, 34 and set a time limit within which it may make known its views in writing. 35 The Hearing Officer must inform the parties to the proceedings as from the initiation of proceedings of the identities of interested third persons to be heard, unless such disclosure would significantly harm a person or undertaking. 36 In particular, according to sufficiently affected by the conduct which is the subject of the competition proceedings or, in merger proceedings, whether the applicants fulfils the requirements of Article 18(4) of the Merger Regulation; see note 28 above. The second sentence of recital 12 of Decision 2011/695 adds that consumer associations that apply to be heard should generally be regarded as having a sufficient interest, where the proceedings concern products or services used by end-consumers or products or services that constitute a direct input into such products or services. 30 Article 5(1) of Decision 2011/695. 31 See Article 11(6) of Regulation 1/2003, Article 2 of Regulation 773/2004 and paragraphs 17 to 23 of the Notice on Best Practices, and Judgment of 7 June 2006 in Joined Cases T-213/01 and T-214/01 Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v Commission, [2006] ECR II- 1601, paragraphs 148 and 149. 32 Judgment in Case T-224/10, as note 28 above, paragraphs 53 to 59, and, by analogy, Judgment in Joined Cases T-213/01 and T-214/01, as note 31 above, paragraphs 148 and 149. 33 Article 5(3) of Decision 2011/695. 34 The General Court has held that the Commission may, without being obliged to do so, provide this information by transmitting to the interested third person a non-confidential version of the statement of objections; see Judgment in Joined Cases T-213/01 and T-214/01, as note 31 above, paragraph 107, and paragraph 36 of DG Competition Best Practices on the conduct of EC merger control proceedings (20 January 2004). 35 Article 13(1) of Regulation 733/2004 and Article 16(1) and recital 14 of the Merger Implementing Regulation. In these written comments the interested third person may also request to develop its arguments at the oral hearing, if there is an oral hearing; see my paper 'The Oral Hearing in Competition Proceedings before the European Commission', as note 6 above. 36 Article 5(4) of Decision 2011/695; see Article 11(6) of Regulation 1/2003, Article 2 of Regulation 773/2004 and paragraphs 17 to 23 of the Notice on Best Practices, and Article 6(1)(c) of the Merger Regulation. 9

the case law of the Court of Justice and the General Court, keeping the identity of third parties confidential is justified where there is a risk that an undertaking holding a dominant position on the market might adopt retaliatory measures against competitors, suppliers or customers that have collaborated in the investigation carried out by the Commission. 37 V. INDEPENDENT REVIEW OF ISSUES CONCERNING THE EFFECTIVE EXERCISE OF PROCEDURAL RIGHTS As the Terms of Reference recall, the primary obligation to respect the procedural rights of all parties involved in competition proceedings lies with DG Competition, which is responsible for the conduct of these proceedings. The Hearing Officer provides a safeguard, in that parties may refer to the Hearing Officer for independent review any issues regarding the effective exercise of their procedural rights which have not been resolved in prior contacts with DG Competition. 38 Depending on the procedural right and the situation concerned, the Hearing Officer has decisional powers, may make a recommendation, or may report on the matter to the Competition Commissioner and to the College of Members of the Commission. A. Decisional powers The Terms of Reference have granted the Hearing Officer decisional powers in relation to five matters: extension of the time limit for replying to a decision requesting information in antitrust proceedings; right to be informed of one's procedural status in antitrust investigations; extension of the time limit for replying to a statement of objections or for making known one's views; access to the file or access to documents or information; and disclosure of business secrets or other confidential information. 1. Extension of the time limit for replying to a decision requesting information in antitrust proceedings In antitrust proceedings, the Commission can, pursuant to Article 18(3) of Regulation 1/2003, by decision require undertakings and associations of undertakings to provide all necessary information (that is, either to hand over existing documents or to provide 37 Judgments of the Court of Justice of 6 April 1995 in Case C-310/93 P BPB Industries and British Gypsum v Commission, [1995] ECR I-896, paragraphs 26 and 27, and of the General Court of 14 December 2005 in Case T-210/01 General Electric v Commission, [2005] ECR II-5575, paragraph 650. 38 Recital 8 and Article 3(7) of Decision 2011/695. 10

answers to questions) specified in the decision within a time limit fixed in the decision. 39 The Commission may, under Article 23(1)(b) of Regulation 1/2003, impose a fine of up to 1 % of their total turnover in the preceding business year on undertakings or associations of undertakings which, intentionally or negligently, supply incorrect, incomplete or misleading information or do not supply information within the required time limit. 40 Article 4(2)(c), read in conjunction with Article 3(7), of the Terms of Reference, provides that, where the addressee of a decision requesting information considers that the time limit imposed for its reply is too short, it may, after having raised the issue first with DG Competition, refer the matter to the Hearing Officer, in due time before the expiry of the original time limit set. The Hearing Officer shall decide on whether an extension of the time limit should be granted, taking account of the length and complexity of the request for information and the requirements of the investigation. This possibility to request from the Hearing Officer an extension of the time limit for replying to a request for information does not exist for simple requests for information, pursuant to Article 18(2) of Regulation 1/2003. This makes sense, because the addressees of such simple requests for information cannot be fined for not supplying information within the required time limit, only for supplying incorrect or misleading information. 41 Addressees of simple requests for information that consider that the time limit for their reply is too short, and that cannot obtain an extension from DG Competition, can thus not be sanctioned for not replying within the time limit. 42 39 Article 18(1) and (3) of Regulation 1/2003 specify that the Commission can only make requests for information "in order to carry out the duties assigned to it by this Regulation" and that the decision "shall stipulate the legal basis and purpose of the request". The Court of Justice has clarified that this implies that the request must identify, "with reasonable precision", the suspected infringement of Articles 101 or 102 TFEU, and that it can only be made if "the Commission could reasonably suppose, at the time of the request, that the document [or other information requested] would help it to determine whether the alleged infringement had taken place"; Opinion of Advocate General Jacobs of 15 December 1993 in Case C-36/92 P SEP v Commission [1994] ECR I-1914 (explicitly endorsed by the Court of Justice in its judgment of 19 May 1994 in the same case, [1994] ECR I-1932, paragraph 21), at paragraphs 30 and 21; see also Judgment of the General Court of 22 March 2012 in Joined Cases T-458/09 and T-171/10 Slovak Telekom v Commission, not yet published in ECR. The Commission's power to require the provision of information by decision is further limited by the privilege against self-incrimination and by legal professional privilege; see text accompanying notes 90 to 93 and 80 to 87 below. 40 Article 24(1)(d) of Regulation 1/2003 further allows the Commission to impose periodic penalty payments of up to 5 % of the average daily turnover in the preceding business year per day in order to compel undertakings or associations of undertakings to supply complete and correct information which it has requested by decision. 41 Article 23(1)(a) of Regulation 1/2003. 42 The absence of a reply within the time limit may of course prompt the Commission to request the information by decision pursuant to Article 18(3) of Regulation 1/2003, in which case Article 4(2)(c) of the Terms of Reference becomes applicable. 11

Whereas in merger proceedings the Commission has similar powers to request information by decision as in antitrust proceedings, 43 there is no possibility for addressees of such decisions to request from the Hearing Officer an extension of the time limit for replying. Just as in the other instances in which the role of the Hearing Officer is not as extensive in merger proceedings as in antitrust proceedings, 44 the explanation is to be found in the two general differences between antitrust proceedings and merger proceedings: First, antitrust proceedings (at least those based on Articles 7 and 23 of Regulation 1/2003) 45 relate to the finding of violations of the law and the imposition of sanctions for such violations, and are therefore of a (non hard-core) criminal nature within the (wider) meaning of the European Convention of Human Rights (ECHR). 46 Merger control, on the other hand, is a procedure of administrative authorisation, which is not of a criminal nature. 47 The relative importance of the rights of the defence, compared to the public interest in effective enforcement or control, is thus greater in antitrust proceedings than in merger proceedings. Secondly, the conduct of proceedings in merger cases must be adapted to the need for speed, which characterises the general scheme of the Merger Regulation and which requires the Commission to comply with strict time-limits for the adoption of the final decision. 48 2. Right to be informed of one's procedural status in antitrust investigations According to the case law, undertakings or associations of undertakings that are subject to an investigative measure under Chapter V of Regulation 1/2003 (inspection or request for information) have the right to be informed of their procedural status, namely whether 43 See Article 11(3) of the Merger Regulation. 44 See text accompanying notes 49, 88 to 89, and 90 below. 45 Commitment proceedings under Article 9 of Regulation 1/2003 and non-infringement proceedings under Article 10 of regulation 1/2003 are not of a criminal nature. 46 See Judgments of the European Court of Human Rights of 23 November 2006 in Case of Jussila v Finland (Application no. 73053/01) and of 27 September 2011 in Case of Menarini Diagnostics v Italy (Application no. 43509/08), and Decision of the European Court of Human Rights of 13 March 2012 in Case of Bouygues Telecom v France (Application no. 2324/08), and my papers 'The Increased Level of EU Antitrust Fines, Judicial Review and the ECHR' (2010) 33 World Competition 5 and 'EU Antitrust Enforcement powers and Procedural Rights and Guarantees: The Interplay between EU Law, National Law, the Charter of Fundamental Rights of the EU and the European Convention of Human Rights' (2011) 34 World Competition 189. 47 Except for proceedings under Articles 14 (fines) of the Merger Regulation, which are of the same nature as proceedings pursuant to Articles 23(1) of Regulation 1/2003. 48 Judgments of the General Court of 27 November 1997 in Case T-290/94 Kaysersberg v Commission [1997] ECR II-2186, paragraph 113, of 28 April 1999 in Case T-221/95 Endemol Entertainment v Commission [1999] ECR II-1330, paragraph 84, of 22 October 2002 in Case T-310/01 Schneider Electric v Commission [2002] ECR II-4071, paragraph 100, and of 4 February 2009 in Case T-145/06 Omya v Commission [2009] ECR II-145, paragraph 33, and of the Court of Justice of 10 July 2008 in Case C-413/06 P Bertelsmann and Sony Corporation of America v Commission [2008] ECR I-4951, paragraphs 49 and 90-91. 12

they are subject to an investigation and, if so, the subject matter and purpose of that investigation. 49 Article 4(2)(d), read in conjunction with Article 3(7), of the Terms of Reference, provides that, where an undertaking or association of undertakings subject to an investigative measure considers, after having raised the matter first with DG Competition, that it has not been properly informed of its procedural status, it may refer the matter to the Hearing Officer. If the Hearing Officer finds that the undertaking or association of undertakings has not been properly informed, he will take a decision that DG Competition will inform the undertaking or association of undertakings of its procedural status. 3. Extension of the time limit for replying to a statement of objections or for making known one's views In antitrust proceedings, before taking a decision finding an infringement and ordering its termination, ordering interim measures, imposing fines, or fixing the definitive amount of periodic penalty payments, the Commission must inform the intended addressees of the decision of the objections raised against them through a written statement of objections, and set a time limit within which these parties may express their views in writing. 50 According to Regulation 773/2004, in setting this time limit, which may not be shorter than four weeks, the Commission must have regard both to the time required for preparation of the submission and to the urgency of the case. 51 In its Notice on Best Practices, the Commission has indicated that DG Competition will grant a longer period, normally a period of two months, depending on the circumstances of the case. 52 The time limit will start to run from the date when access to the main documents of the file has been granted. 53 Similarly, in merger proceedings, before taking a decision provided for in Article 6(3) (revocation of a decision finding that a concentration falls outside the scope of the Merger Regulation or clearing the concentration) or Article 8(2) to (6) (conditional clearance, prohibition, dissolution of the concentration, interim measures, and revocation of clearance) of the Merger Regulation, the Commission must address to the notifying parties its objections through a written statement of objections, and set a time-limit 49 Judgment of the General Court of 8 July 2008 in Case T-99/04 AC-Treuhand v Commission [2008] ECR II-1501, paragraphs 44 to 60; and Opinion of Advocate General Mengozzi of 17 February 2011 in Case C-521/09 P Elf Aquitaine v Commission, not yet published in ECR, paragraphs 12 to 23, and Judgment of the Court of Justice of 29 September 2011 in the same case, paragraphs 113 to 122; see also Final report of the Hearing Officer in Case COMP/38.589 Heat Stabilisers, [2010] OJ C 307/4 at 5. 50 Article 27 of Regulation 1/2003 and Article 10 of Regulation 773/2004. 51 Article 17(1) and (2) of Regulation 773/2004; for proceedings initiated with a view to adopting interim measures pursuant to Article 8 of Regulation 1/2003, the time limit may be shortened to one week. 52 Paragraph 100 of the Notice on Best Practices. 53 Paragraph 102 of the Notice on Best Practices. 13

within which they may express their views in writing. 54 In setting this time limit, the Commission must have regard both to the time required for preparation of the submission and to the urgency of the case. 55 Article 9(1) of the Terms of Reference provides that, if an addressee of a statement of objections considers that the time limit imposed for its reply to the statement of objections is too short, it may seek an extension of that time limit by means of a reasoned request addressed to the Director responsible. Such a request must be made in due time before the expiry of the original time limit in antitrust proceedings and at least 5 working days before the expiry of the original time limit in merger proceedings. If such a request is not granted or the addressee of the statement of objections making the request disagrees with the length of the extension granted, it may refer the matter to the Hearing Officer for review before the expiry of the original time limit. After hearing the Director responsible, the Hearing Officer shall decide on whether an extension of the time limit is necessary to allow the addressee of a statement of objections to exercise its right to be heard effectively, while also having regard to the need to avoid undue delay in proceedings. 56 A decision refusing an extension is an intermediate procedural measure, which does not affect the applicant's legal situation until the Commission has adopted a final decision finding an infringement, declaring the merger incompatible with the common market or otherwise adversely affecting the applicant. The applicant can thus not bring a separate action before the General Court against the decision refusing the extension, but can later raise the matter in an action against such final decision. 57 Apart from the addressees of a statement of objection, also other involved parties in merger proceedings, 58 complainants in antitrust proceedings, 59 and interested third 54 Article 13(1) and (2) of the Merger Implementing Regulation. 55 Article 22 of the Merger Implementing Regulation, which adds that the Commission shall also take account of working days as well as public holidays in the country of receipt of the statement of objections, and that time limits shall be set in terms of a precise calendar date. See also Judgment of the General Court of 14 December 2005 in Case T-210/01 General Electric v Commission [2005] ECR II-5575, paragraphs 697-713. 56 Article 9(1) of the Terms of Reference adds that, in antitrust proceedings, the Hearing Officer shall take into account, among other elements, the size and complexity of the file, whether the addressee of the statement of objections making the request has had prior access to information, and any other objective obstacles which may be faced by the addressee. 57 See Order of the President of the Court of First Instance of 27 January 2009 in Case T-457/08 R Intel v Commission [2009] ECR II-12. 58 That is, parties to the proposed concentration other than the notifying parties, such as the seller and the undertaking which is the target of the concentration; see Article 11(b) of the Merger Implementing Regulation. 59 See Article 7(2) of Regulation 1/2003, Article 5 of Regulation 773/2004, Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of the EC Treaty, [2004] OJ C 101/5, and Judgment of the General Court of 7 June 2006 in Joined Cases T-213/01 and T-214/01 Österreichische Postsparkasse and Bank für Wirtschaft und Arbeit v Commission [2006] ECR II-1601. 14

persons in both antitrust and merger proceedings, 60 have a right to provide written comments within a time limit set by the Commission. 61 Article 9(2) of the Terms of Reference provides that, if an other involved party, a complainant or an interested third person considers that the time limit to make its views known is too short, it may seek an extension of that time limit by means of a reasoned request addressed to the Director responsible in due time before the expiry of the original time limit. If such a request is not granted or the other involved party, complainant or interested third person disagrees with this decision, it may refer the matter to the Hearing Officer for review. After hearing the Director responsible, the Hearing Officer shall decide on whether an extension of the time limit should be granted. 4. Access to the file or access to documents or information The addressees of a statement of objections, as well as other involved parties (that is, other parties to the concentration than the notifying parties) in merger proceedings, have a right of access to the Commission's investigation file, so as to allow them to effectively express their views on the preliminary conclusions reached by the Commission in the statement of objections. 62 The right of access covers in principle the entire investigation file, but with exceptions for internal documents and correspondence with the competition authorities of the Member States (unless these add relevant evidence to the file 63 ), and for business secrets or other confidential information of other undertakings or persons. 64 The right of other undertakings or persons to the protection of their business secrets or other 60 See text accompanying notes 26 to 33 above. 61 Article 13(2) of the Merger Implementing Regulation, Article 6(1) of Regulation 773/2004, Article 13(1) of Regulation 773/2004 and Article 16(1) of the Merger Implementing Regulation. 62 See Article 27(2) of Regulation 1/2003, Article 15 of Regulation 773/2004, Article 18(3) of the Merger Regulation, and Article 17 of the Merger Implementing Regulation; Commission Notice on the rules for access to the Commission file, [2005] OJ C 325/7; Commission Notice on Immunity from fines and reduction of fines in cartel cases, [2006] OJ C 298/11, paragraphs 31 to 34; Commission Notice on the conduct of settlement procedures in cartel cases, [2008] OJ C 167/1, paragraphs 35 to 38; Notice on Best Practices, paragraphs 92 to 103; DG Competition Best Practices on the conduct of EC merger control proceedings, paragraphs 42 to 44; Judgment of the Court of Justice of 7 January 2004 in Joined Cases C-204/00 P etc. Aalborg Portland and Others v Commission [2004] ECR I-403, paragraphs 68 to 76; Judgment of the General Court of 15 March 2000 in Joined Cases T-25/95 etc. Cimenteries CBR and Others v Commission [2000] ECR II- 508, paragraphs 124 to 435; Judgment of the General Court of 12 July 2011 in Case T-133/07 Mitsubishi v Commission, not yet reported in ECR, paragraphs 41 to 47, and Judgment of the General Court of 14 December 2005 in Case T-210/01 General Electric v Commission [2005] ECR II-5575, paragraphs 629 to 713; and Article 41(2)(b) of the Charter of Fundamental Rights of the European Union. 63 Evidence which the Commission receives, in the context of its investigation, from a competition authority of a Member State pursuant to Article 12 of Regulation 1/2003 forms in principle part of the accessible file. 64 An example of such other confidential information is the identity of third parties where there is a risk of retaliation; see (text accompanying) note 37 above; see also Judgment of the Court of Justice of 7 November 1985 in Case 145/83 Stanley Adams v Commission [1985] ECR 3539. 15

confidential information must however be balanced against and reconciled with the right of access to the file, 65 through the use of non-confidential versions of documents or the provision of access in a restricted manner, for instance through a data room procedure. 66 Article 7(1) and (3), read in conjunction with Article 3(7), of the Terms of Reference provide that, where a party which has exercised its right of access to the file has reason to believe that the Commission has in its possession documents which have not been disclosed to it and those documents are necessary for the proper exercise of the right to be heard, it may, after having raised the matter with DG Competition, make a reasoned request for access to these documents to the Hearing Officer. The Hearing Officer shall take a reasoned decision, granting or rejecting the request for additional access. Where information which may constitute a business secret or other confidential information of another undertaking or person is at stake, and this other undertaking or person objects to the disclosure, a decision granting access pursuant to Article 7(3) of the Terms of Reference may necessitate a prior decision pursuant to Article 8(2) of the Terms of Reference allowing disclosure, or a decision pursuant to Article 8(4) of the Terms of Reference allowing access in a restricted manner, for instance through a data room procedure. 67 A decision refusing access or granting access only in a restricted manner is an intermediate procedural measure, which does not affect the applicant's legal situation until the Commission has adopted a final decision finding an infringement, declaring the merger incompatible with the common market or otherwise adversely affecting the applicant. The applicant can thus not bring a separate action before the General Court against the decision refusing access, but can later raise the matter in an action against such final decision. 68 Article 7(1) of the Terms of Reference only covers access to documents which the Commission has in its possession. It does not empower the Hearing Officer to order the Commission to obtain or seek to obtain documents which are not in its possession in order to complete an allegedly incomplete file. 69 65 Judgment in Joined Cases T-25/95 etc., as note 62 above, paragraph 147; Judgment in Case T-210/01, as note 62 above, paragraph 653; Judgment of the Court of Justice of 14 February 2008 in Case C- 450/06 Varec v Belgian State [2008] ECR I-581, paragraphs 46 to 54; and recital 14 of Regulation 773/2004. 66 On the data room procedure, see paragraph 97 of the Notice on Best Practices. 67 See text accompanying notes 72 and 73 below. 68 Order of the General Court of 9 July 2003 in Case T-219/01 Commerzbank v Commission [2003] ECR II-2843. 69 See Final report of the Hearing Officer in Case COMP/C-3/37.990 Intel, [2009] OJ C 227/7 at 9. See also, on the Commission's discretion how to conduct investigations, my paper 'Discretion and Prioritisation in Public Antitrust Enforcement, in Particular EU Antitrust Enforcement' (2011) 34 World Competition 353 at 361-362. 16

Article 7(2) and (3) of the Terms of Reference further empower the Hearing Officer to decide upon requests by other involved parties in merger proceedings to be informed of the objections addressed to the notifying parties, requests by complainants in antitrust proceedings pursuant to Article 8(1) of Regulation 773/2004 for access to the documents on which the Commission bases its intention to reject the complaint, requests by complainants in antitrust proceedings to receive an adequate non-confidential version of the statement of objections, and requests by interested third persons in antitrust or merger proceedings to be informed of the nature and subject matter of the procedure. Article 7 of the Terms of Reference does not cover requests for public access to Commission documents under Regulation 1049/2001. 70 The Hearing Officer does not have any role in the application of Regulation 1049/2001. 71 5. Disclosure of business secrets and other confidential information Article 8(1) and (2) of the Terms of Reference provide that, where the Commission intends to disclose information which may constitute a business secret or other confidential information of any undertaking or person, the latter shall be informed in writing of this intention and the reasons thereof by the Directorate-General for Competition. A time limit shall be fixed within which the undertaking or person concerned may submit any written comments. Where the undertaking or person concerned objects to the disclosure of the information it may refer the matter to the Hearing Officer. If the Hearing Officer finds that the information may be disclosed because it does not constitute a business secret or other confidential information or because there is an overriding interest in its disclosure that finding shall be stated in a reasoned decision which shall be notified to the undertaking or person concerned. The decision shall specify the date after which the information will be disclosed. This date shall not be less than 1 week from the date of notification. Article 8(4) of the Terms of Reference adds that, where appropriate in order to balance the effective exercise of a party s rights of defence with legitimate interests of confidentiality, the Hearing Officer may decide that parts of the file which are indispensable for the exercise of the party s rights of defence will be made accessible to the party requesting access in a restricted manner, the details of which shall be determined by the Hearing Officer. Recital 16 of the Terms of Reference further explains that such access in a restricted manner may involve, for example, a limitation of the number or category of persons having access, and a limitation of the use of the 70 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding the public access to European Parliament, Council and Commission documents, [2001] OJ L 145/43. 71 The rules for the application by the Commission of Regulation 1049/2001 are laid down in the Annex to the Commission Decision of 5 December 2001 amending its rules of procedure, [2001] OJ L 345/94. 17