EN Official Journal of the European Union C 133/6

Final report of the Hearing Officer on the procedure in case COMP/37.766 — Dutch Beer Market

(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 133/05

This case originated in 1999, when the Commission carried out investigations at Interbrew NV (now InBev NV) in Case 37.409 PO/Interbrew, following which a second case, 37.614 Interbrew/Alken-Maes, was initiated. A request for information was sent to Interbrew on 11 November 1999, in response to which Interbrew provided information in January and February 2000 about anticompetitive practices in the Dutch beer market and applied for leniency.

Statement of Objections and time to respond

On 30 August 2005, the Commission issued a Statement of Objections (‘SO’) which was sent to the addressees of the draft Decision, describing a complex of agreements and concerted practices restrictive of competition between four undertakings, covering the entire territory of the Netherlands for the period between 10 February 1995 and 3 November 1999.

The parties were given two months to respond to the SO, until 3 November 2005. All the parties except for Inbev requested several extensions.

In view of issues that arose relating to access to file and confidentiality of certain documents, I subsequently extended the deadline to 10 November, in letters to all the parties (including Inbev), then until 24 November 2005. I consider that the total three-week extension of the deadline for responding to the SO was ample to ensure that all parties had sufficient time to prepare their defence once the confidentiality and access to file issues had been resolved.

Three letters of facts were sent to some or all of the parties subsequent to the SO, because more facts were intended to be used to substantiate the objections. The first one was sent on 26 January 2006, to Heineken. Heineken made known its views on 2 February 2006. On 7 March 2006 a letter of fact was sent to all parties, which communicated some extra information received by the Commission services in January and February 2006. This merely strengthened factual points made in specific paragraphs of the SO. The parties were given two weeks to make known their views on these facts. The final letter was sent to Heineken on 6 April 2006; this letter informed Heineken that a particular document found on Heineken's premises would be used as support for existing objections. The same document was sent to the other parties on 8 May 2006. Both Heineken and Grolsch responded in writing to this letter of facts.

Access to File

With regard to access to file that was requested in particular by Bavaria, the Directorate-General for Competition considered that the confidential information requested (losses and gains of horeca outlets by the other parties) was not indispensable for Bavaria's defence, and having examined the documents myself, I supported this view. Confidentiality had been claimed for that information by the parties (including Bavaria); it was not exculpatory for Bavaria, nor was it used in the Statement of Objections.

The parties also requested access to each others’ replies to the SO. I did not grant these requests, on the basis that current Commission policy is not to do so unless a reply contains exculpatory evidence for another party, or if a reply contains inculpatory evidence that the Commission relies on in the final Decision. The Court also has held (judgment in Case T-42/02 of 27 September 2006, Jungbunzlauer AG v Commission, paragraph 342 and subsequent) that the Commission is under no duty to provide the answers to the SO to all the parties, unless it intends to rely on part of the replies as evidence. I did, however, point out that the parties were free to exchange their replies among themselves if they chose to do so.

Oral Hearing

The parties did not request an oral hearing, although this would have been the occasion for them to know the main content of the replies to the SO, for which they had been asking. Bavaria specifically made the point that in absence of communication of the written replies, such a hearing did not seem to be useful for the defence. In fact, it would have given the parties a chance to react to any allegations by other parties on the spot, to present their cases to a wider audience, including Member States representatives and members of other Commission services than those directly involved in the case, and to raise issues in the presence of many of those who are consulted before a final decision is reached. Moreover, if issues arise on disputed facts, something that happens regularly in oral hearings, the investigation can be extended on those issues. However, it clearly remains up to the addressees of the SO to request an oral hearing as part of their rights of defence if they so wish.

Draft Final Decision

The duration of the cartel has been shortened in the draft final Decision as compared to the SO, from the period between 10 February 1995 to 3 November 1999 to the period between 27 February 1996 to 3 November 1999. Following the replies to the SO, it was apparent that the duration of the infringement as expressed in the SO could not be established to a satisfactory level of proof.

I am of the opinion that the draft Decision submitted to the Commission only contains objections in respect of which the parties have been afforded the opportunity of making known their views. I consider that the rights of the parties to be heard have been respected.