# C_2009296EN.01001901.xml

| 5.12.2009 | EN | Official Journal of the European Union | C 296/19 |
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5.12.2009

EN

Official Journal of the European Union

C 296/19

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Final report of the Hearing Officer in Case COMP/C.39129 — Power Transformers

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

2009/C 296/07

This competition case concerns a cartel agreement between producers of power transformers.

The draft decision gives rise to the following observations:

Statement of Objections

Statement of Objections

The Statement of Objections (SO) was adopted on 20 November 2008 and notified to the following seven groups of undertakings: ABB Ltd; AREVA T&D SA; Alstom; Siemens AG; Fuji Electrics Holdings Co. Ltd; Hitachi Ltd; and Toshiba Corporation (the Parties).

In the SO the Commission reached the preliminary conclusion that the Parties had infringed Article 81 of the EC Treaty between 1993 and 2003 by adhering to an oral arrangement (the gentlemen’s agreement) whereby the Japanese producers agreed not to sell power transformers in Europe and the European producers agreed not to sell in Japan.

Time period to respond to SO

Time period to respond to SO

The Parties were originally granted a time period of six weeks to respond to the SO. All Parties made requests to me for extensions, which I partially granted. All parties responded to the SO within the extended time period.

Access to file

Access to file

The Parties were given access to the Commission’s investigation file by way of CD-ROM. Corporate statements by the immunity and leniency applicants were, however, only made accessible at the Commission premises.

Pursuant to the Commission’s notice on access to file (1) additional access was granted to some submissions that the Commission received after the Oral Hearing and on which the Commission intended to rely as incriminating evidence in the final decision.

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Oral Hearing

Oral Hearing

Upon request by the Parties an Oral Hearing was held on 17 February 2009 at which all Parties were represented.

During the Oral Hearing one Party was granted the opportunity to respond to a question in writing. This response was subsequently circulated to all Parties for comments, which lead to the additional access referred to above.

Main procedural issues raised by the Parties

Main procedural issues raised by the Parties

A number of claims with regard to the rights of defence were raised by the Parties which, after careful examination, I consider to be unfounded. The main claims were the following:

| — | The Commission relies on self-incriminating evidence submitted by an immunity applicant although its application had been rejected.
  The 2002 Leniency notice provides that an immunity applicant may withdraw evidence disclosed for the purpose of its immunity application should it not be accepted (2). As the applicant concerned did not avail itself of this possibility the Commission was free to rely on that evidence without violating the rights of defence. |
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The Commission relies on self-incriminating evidence submitted by an immunity applicant although its application had been rejected.

The 2002 Leniency notice provides that an immunity applicant may withdraw evidence disclosed for the purpose of its immunity application should it not be accepted (2). As the applicant concerned did not avail itself of this possibility the Commission was free to rely on that evidence without violating the rights of defence.

2

| — | The Commission relies on evidence it had seized during inspections in a different (but related) case.
  My inquiry showed that the same evidence had subsequently been voluntarily submitted in connection with a leniency application and in response to a request for information in the current case. Accordingly, the fact that this evidence had also been seized by the Commission during inspections in a different case cannot lead to a violation of the rights of defence. |
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The Commission relies on evidence it had seized during inspections in a different (but related) case.

My inquiry showed that the same evidence had subsequently been voluntarily submitted in connection with a leniency application and in response to a request for information in the current case. Accordingly, the fact that this evidence had also been seized by the Commission during inspections in a different case cannot lead to a violation of the rights of defence.

| — | The European Parties were informed of the exact scope of the investigation at an early stage of the proceedings whereas the Japanese Parties were only informed thereof with the notification of the SO.
  In this regard I note that the investigation, in addition to the gentlemen’s agreement, had originally also focused on certain intra-EU conduct to which the Japanese Parties were not alleged to have participated. The fact that the European Parties were informed of the reduced scope of the investigation against them does not imply any discrimination and does certainly not amount to a breach of the Japanese Parties’ rights of defence. |
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The European Parties were informed of the exact scope of the investigation at an early stage of the proceedings whereas the Japanese Parties were only informed thereof with the notification of the SO.

In this regard I note that the investigation, in addition to the gentlemen’s agreement, had originally also focused on certain intra-EU conduct to which the Japanese Parties were not alleged to have participated. The fact that the European Parties were informed of the reduced scope of the investigation against them does not imply any discrimination and does certainly not amount to a breach of the Japanese Parties’ rights of defence.

| — | Contrary to the principle of equal treatment, some documents in the file had been disclosed to a leniency applicant before the SO was notified but not to other Parties to the proceedings.
  In my view, the relevant Commission service is not precluded from discussing certain pieces of information with Parties during the investigation phase in order to better understand and to further the investigation. This is particularly the case in respect of leniency applicants. In any event, the particular information was subsequently made accessible to all Parties during the access to file procedure. Accordingly, this early disclosure could not breach the principle of equal treatment or impair the other Parties’ rights of defence. |
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Contrary to the principle of equal treatment, some documents in the file had been disclosed to a leniency applicant before the SO was notified but not to other Parties to the proceedings.

In my view, the relevant Commission service is not precluded from discussing certain pieces of information with Parties during the investigation phase in order to better understand and to further the investigation. This is particularly the case in respect of leniency applicants. In any event, the particular information was subsequently made accessible to all Parties during the access to file procedure. Accordingly, this early disclosure could not breach the principle of equal treatment or impair the other Parties’ rights of defence.

| — | One Party claimed that it never received a written acknowledgement of its leniency submission, which was subsequently rejected. The Party also claims that the relevant Commission service failed to clearly state in its letter rejecting leniency the date at which it made a comparison between the information provided and the information already available to the Commission.
  Pursuant to the 2002 Leniency notice (3) a leniency applicant shall receive a written acknowledgement confirming the date at which the application was received. Accordingly, the lack of such confirmation constitutes a procedural irregularity. Moreover, and particularly in the absence of such an acknowledgment, I also consider that it constitutes a procedural irregularity not to clearly state the date of comparison in the leniency rejection letter. Nevertheless, and leaving open whether the date of comparison could have a decisive effect on the applicant’s leniency status, I do not consider that either of these procedural irregularities are of such character that they amount to a breach of the rights of defence. |
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One Party claimed that it never received a written acknowledgement of its leniency submission, which was subsequently rejected. The Party also claims that the relevant Commission service failed to clearly state in its letter rejecting leniency the date at which it made a comparison between the information provided and the information already available to the Commission.

Pursuant to the 2002 Leniency notice (3) a leniency applicant shall receive a written acknowledgement confirming the date at which the application was received. Accordingly, the lack of such confirmation constitutes a procedural irregularity. Moreover, and particularly in the absence of such an acknowledgment, I also consider that it constitutes a procedural irregularity not to clearly state the date of comparison in the leniency rejection letter. Nevertheless, and leaving open whether the date of comparison could have a decisive effect on the applicant’s leniency status, I do not consider that either of these procedural irregularities are of such character that they amount to a breach of the rights of defence.

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The draft decision

The draft decision

In the draft decision, the Commission essentially retains its objections as set out in the Statement of Objections although the duration of the infringement has been considerably reduced.

In my view the draft decision deals only with objections in respect of which the Parties have been afforded the opportunity of making known their views.

Conclusion

Conclusion

In view of the above observations, I consider that the right to be heard has been respected with regard to all Parties to the proceedings in this case.

Brussels, 5 October 2009.

Michael ALBERS

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(1)  OJ C 325, 22.12.2005, p. 7, point 27.

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(2)  OJ C 45, 19.2.2002, p. 3, point 17.

2

(3)  OJ C 45, 19.2.2002, p. 3, points 14 and 25.

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