EN Official Journal of the European Union C 240/4

Final report of the Hearing Officer in Case COMP/B-1/39.326 — E.ON Energie AG

(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)

(2008/C 240/05)

The draft Decision gives rise to the following observations:

Introduction

The Commission carried out an unannounced inspection pursuant to Article 20 of Regulation (EC) No 1/2003 at the business premises of E.ON Energie AG (‘EE’) in Munich on 29 May 2006. The documents collected during the day were placed in a separate office which was locked and sealed by the Commission on the evening of 29 May 2006. When the inspection team returned to EE in the morning of 30 May 2006, they found that the appearance of the seal had changed significantly. The inspection team drew up a protocol, to which EE attached a supplementary statement. Later, in order to clarify the facts of the matter, the Commission sent requests for information to EE and the manufacturer of the label material. On the basis of the above information, the Commission came to the preliminary conclusion that the seal had been broken and that the breach was attributable to EE.

Statement of Objections and the time to reply

A Statement of Objections (‘SO’) was sent by the Commission on 2 October 2006 and was received by EE on 4 October 2006. EE replied to the SO on 13 November 2006, after having been granted an extension of one week. EE attached a scientific and technical opinion to its reply contesting the findings of the SO.

Access to file

EE had access to the Commission file in the form of a CD-ROM which they received on 11 October 2006. EE did not address any issues relating to access to file to me.

Oral Hearing

An Oral Hearing was held on 6 December 2006, at which EE presented their views and proposed further clarifications on certain technical aspects of the seals by calling on experts.

Upon the invitation of the Commission under Article 13(3) of Regulation (EC) No 773/2004, the manufacturer of the label material also attended the Oral Hearing and expressed their views.

EE's expert opinions and the Commission's Letters of Facts

EE submitted an expert opinion on 28 March 2007, in which their experts examined alternative causes for the changed state of the seal found during the inspection.

In April 2007, the Commission asked an external expert to prepare an opinion on certain aspects of the performance and handling of the Commission's seals. On-site tests were carried out by the Commission's expert at EE's premises in Munich on 26 April 2007, at which EE's representatives and experts as well as the manufacturer of the label material were present. The Commission's expert delivered his opinion to the Commission on 8 May 2007.

On 6 June 2007, the Commission informed EE of its additional findings in a Letter of Facts and access was granted to the related documents. On the same day, EE submitted a further expert opinion describing possible factors that might have caused the appearance of VOID signs on the seal. EE replied to the Letter of Facts on 6 July 2007.

By letter of 17 July 2007, EE requested me to organize another oral hearing in order to allow the experts to discuss their differing statements in face-to-face interviews. By letter of 26 July 2007, I rejected their request, explaining that a second oral hearing would be justified only if the Commission had communicated new objections to EE, or had extended the scope of the existing objections or had changed their nature. This was not the situation in the present case, nor did EE even claim that this was so.

By letter of 1 October 2007, EE submitted a third expert opinion to the Commission further investigating certain circumstances that might influence the sensitivity of the seals.

Subsequently the Commission requested their expert to comment on EE's second and third expert opinions and carry out some further tests, if necessary. The Commission's expert submitted a further expert opinion on 20 November 2007, in which he upheld his previous findings and reported the results of his new tests. The Commission sent a second Letter of Facts to EE and granted access to the related documents on 23 November 2007. Upon EE's request, I granted an extension of one week to respond to these additional facts. EE replied in due time, on 10 December 2007.

The draft Decision

The draft Decision is the first decision under Article 23(1) of Regulation (EC) No 1/2003 which introduced a new scale of penalties and a specific infringement for breach of a seal. Procedural violations have been also taken into consideration as aggravating circumstances in the context of substantive infringements, and the Commission has increased the fine accordingly in final decisions in cartel cases.

The draft Decision submitted to the Commission only contains objections in respect of which EE has been afforded the opportunity of making known their views.

I conclude that EE's right to be heard has been respected in the present case.