APPENDIX 3
Commission Decision 94/810/ECSC, EC of
12 December 1994 on the terms of reference of hearing officers
in competition procedures before the Commission
Official Journal L 330, 21/12/1994 p 67-69
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the
European Coal and Steel Community,
Having regard to the Treaty establishing the
European Community,
Whereas the treaties establishing the Communities
and the rules implementing those treaties in relation to competition
matters provide for the right of the parties concerned and of
third parties to be heard before a final decision affecting their
interests is taken;
Whereas the Commission must ensure that that
right is guaranteed in its competition proceedings;
Whereas it is appropriate to entrust the organization
and conduct of the administrative procedures designed to protect
the right to be heard to an independent person experienced in
competition matters, in the interest of contributing to the objectivity,
transparency and efficiency of the Commission's competition proceedings;
Whereas the Commission created the post of Hearing
Officer for these purposes in 1982 and laid down his terms of
reference;
Whereas it is necessary to adapt and consolidate
those terms of reference in the light of subsequent developments
in Community law,
HAS DECIDED AS FOLLOWS:
Article 1
1. The hearings provided for in the provisions
implementing Articles 65 and 66 of the ECSC Treaty, Articles 85
and 86 of the EC Treaty and Council Regulation (EEC) No 4064/89[39]
shall be organized and conducted by the Hearing Officer in accordance
with Articles 2 to 10 of this Decision.
2. The implementing provisions referred
to in paragraph 1 are:
(a) Article 36(1) of the ECSC Treaty;
(b) Regulation No 99/63/EEC of the Commission
of 25 July 1963 on the hearings provided for in Article 19(1)
and (2) of Council Regulation No 17[40];
(c) Regulation (EEC) No 1630/69 of the Commission
of 8 August 1969 on the hearings provided for in Article 26(1)
and (2) of Council Regulation (EEC) No 1017/68 of 19 July 1968[41];
(d) Commission Regulation (EEC) No 4260/88
of 16 December 1988 on the communications, complaints and applications
and the hearings provided for in Council Regulation (EEC) No 4056/86
laying down detailed rules for the application of Articles 58
and 86 of the treaty to maritime transport[42];
(e) Commission Regulation (EEC) No 4261/88
of 16 December 1988 on the complaints, applications and hearings
provided for in Council Regulation (EEC) No 3975/87 laying down
the procedure for the application of the rules of competition
to undertakings in the air transport sector[43];
(f) Commission Regulation (EEC) No 2367/90
of 25 July 1990, on the notifications, time limits and hearings
provided for in Council Regulation (EEC) No 4064/89 on the control
of concentrations between undertakings[44].
3. Administratively the Hearing Officer
shall belong to the Directorate-General for Competition. To ensure
the independence of the Hearing Officer in the performance of
his duties, he has the right of direct access, as defined in Article
9, to the Member of the Commission with special responsibility
for competition.
4. Where the Hearing Officer is unable to
act, the Director-General, where appropriate after consultation
of the Hearing Officer, shall designate another official, who
is least in the grade A3 and is not involved in the case in question,
to carry out the duties described herein.
Article 2
1. The Hearing Officer shall ensure that
the hearing is properly conducted and thus contribute to the objectivity
of the hearing itself and of any decision taken subsequently.
The Hearing Officer shall seek to ensure in particular that in
the preparation of draft Commission decisions in competition cases
due account is taken of all the relevant facts, whether favourable
or unfavourable to the parties concerned.
2. In performing his duties the Hearing
Officer shall see to it that the rights of the defence are respected,
while taking account of the need for effective application of
the competition rules in accordance with the regulations in force
and the principles laid down by the Court of First Instance and
the Court of Justice.
Article 3
1. Decisions as to whether third parties,
be they natural or legal persons, are to be heard shall be taken
after consulting the Director responsible for investigating the
case which is the subject of the procedure.
2. Applications to be heard on the part
of third parties shall be submitted in writing, together with
a written statement explaining the applicant's interest in the
outcome of the procedure.
3. Where it is found that an applicant has
not shown a sufficient interest to be heard, he shall be informed
in writing of the reasons for such finding. A time limit shall
be fixed within which he may submit any further written comments.
Article 4
1. Decisions whether persons are to be heard
orally shall be taken after consulting the Director responsible
for investigating the case which is the subject of the procedure.
2. Applications to be heard orally shall
be made in the applicant's written comments on letters which the
Commission has addressed to him and shall contain a reasoned statement
of the applicant's interest in an oral hearing.
3. The letters referred to in paragraph
2 are those:
— communicating a statement of objections,
— inviting the written comments of
a natural or legal person having shown sufficient interest to
be heard as a third party,
— informing a complainant that in the
Commission's view there are insufficient grounds for finding an
infringement and inviting him to submit any further written comments,
— informing a natural or legal person
that in the Commission's view that person has not shown sufficient
interest to be heard as a third party.
4. Where it is found that the applicant
has not shown a sufficient interest to be heard orally, he shall
be informed in writing of the reasons for such finding. A time
limit shall be fixed within which he may submit any further written
comments.
Article 5
1. Where a person, an undertaking or an
association of persons or undertakings who or which has received
one or more of the letters listed in Article 4(3) has reason to
believe that the Commission has in its possession documents which
have not been disclosed to it and that those documents are necessary
for the proper exercise of the right to be heard, he or it may
draw attention to the matter by a reasoned request.
2. The reasoned decision on any such request
shall be communicated to the person, undertaking or association
that made the request and to any other person, undertaking or
association concerned by the procedure.
3. Where it is intended to disclose information
which may constitute a business secret of an undertaking, it shall
be informed in writing of this intention and the reasons for it.
A time limit shall be fixed within which the undertaking concerned
may submit any written comments.
4. Where the undertaking concerned objects
to the disclosure of the information but it is found that the
information is not protected and may therefore be disclosed, that
finding shall be stated in a reasoned decision which shall be
notified to the undertaking concerned. The decision shall specify
the date after which the information will be disclosed. This date
shall not be less than one week from the date of notification.
5. Where an undertaking or association of
undertakings considers that the time limit imposed for its reply
to a letter referred to in Article 4(3) is too short, it may,
within the original time limit, draw attention to the matter by
a reasoned request. The applicant shall be informed in writing
whether the request has been granted.
Article 6
1. Where appropriate in view of the need
to ensure that the hearing is properly prepared and particularly
that questions of fact are clarified as far as possible, the Hearing
Officer may, after consulting the Director responsible for investigating
the case, supply in advance to the firms concerned a list of the
questions on which he or she wishes them to explain their point
of view.
2. For this purpose, after consulting the
Director responsible for investigating the case which is the subject
of the hearing, the Hearing Officer may hold a meeting with the
parties concerned and, where appropriate, the Commission staff,
in order to prepare for the hearing itself.
3. For the same purpose the Hearing Officer
may ask for prior written notification of the essential contents
of the intended statement of persons whom the undertakings concerned
have proposed for hearing.
Article 7
1. After consulting the Director responsible
for investigating the case, the Hearing Officer shall determine
the date, the duration and the place of the hearing, and, where
a postponement is requested, the Hearing Officer shall decide
whether or not to allow it.
2. The Hearing Officer shall be fully responsible
for the conduct of the hearing.
3. In this regard, the Hearing Officer shall
decide whether fresh documents should be admitted during the hearing,
what persons should be heard on behalf of a party and whether
the persons concerned should be heard separately or in the presence
of other persons attending the hearing.
4. The Hearing Officer shall ensure that
the essential content of the statement made by each person heard
shall be recorded in minutes which, where appropriate, shall be
read and approved by that person.
Article 8
The Hearing Officer shall report to the Director-General
for Competition on the hearing and the conclusions he draws from
it. The Hearing Officer may make observations on the further progress
of the proceedings. Such observations may relate among other things
to the need for further information, the withdrawal of certain
objections, or the formulation of further objections.
Article 9
In performing the duties defined in Article
2, the Hearing Officer may, if he deems it appropriate, refer
his observations direct to the Member of the Commission with special
responsibility for competition.
Article 10
Where appropriate, the Member of the Commission
with special responsibility for competition may decide, at the
Hearing Officer's request, to attach the Hearing Officer's final
report to the draft decision submitted to the Commission, in order
to ensure that when it reaches a decision on an individual case
it is fully apprised of all relevant information.
Article 11
This Decision revokes and replaces the Commission
Decisions of 8 September 1982 and 23 November 1990 on the implementation
of hearings in connection with procedures for the application
of Articles 65 and 66 of the ECSC Treaty and Articles 85 and 86
of the EC Treaty.
Article 12
This Decision shall enter into force on the
day following its publication in the Official Journal of the European
Communities.
Done at Brussels, 12 December 1994.
For the Commission
Karel VAN MIERT
Member of the Commission
39 OJ No L 395, 30.12.1989, p 1 (corrected version
OJ No L 257, 21.9.1990, p 13). Back
40
OJ No 127, 20.8.1963, p 2268/63. Back
41
OJ No L 209, 21.8.1969, p 11. Back
42
OJ No L 376, 31.12.1988, p 1. Back
43
OJ No L 376, 31.12.1988, p 10. Back
44
OJ No L 219, 14.8.1990, p 5. Back
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