Final Report of the Hearing Officer (1)

Case AT.40330 – Rail Cargo

(2021/C 398/08)

The draft decision, addressed to ÖBB (2), DB (3) and SNCB (4) (collectively ‘the Parties’), concerns a single and continuous infringement of Article 101 TFEU consisting of customer allocation and the exchange of commercially sensitive information related to the provision of cross-border rail cargo transport services in conventional sectors (other than the automotive sector) carried out on certain routes starting in, ending in or passing through Germany or the Netherlands, Austria or Hungary and (in some cases) Belgium. The draft decision finds that ÖBB and DB participated in this infringement between 8 December 2008 and 30 April 2014, and SNCB between 15 November 2011 and 30 April 2014.

On 4 April 2019, the Commission initiated proceedings pursuant to Article 2(1) of Regulation (EC) No 773/2004 (5) against the Parties with a view to engaging in settlement discussions with them under the Settlement Notice. (6)

Following settlement discussions (7) and settlement submissions (8) in accordance with Article 10a(2) of Regulation (EC) No 773/2004, the Commission adopted a statement of objections addressed to the Parties on 4 December 2020.

In their respective replies to the statement of objections, the Parties confirmed, pursuant to Article 10a(3) of Regulation (EC) No 773/2004, that the statement of objections reflected the contents of their settlement submissions and that they therefore remained committed to following the settlement procedure.

Pursuant to Article 16 of Decision 2011/695/EU, I have examined whether the draft decision deals only with objections in respect of which the Parties have been afforded the opportunity of making known their views. I conclude that it does so.

In view of the above, and taking into account that the Parties have not addressed any requests or complaints to me, (9) I consider that the effective exercise of the procedural rights of the Parties to the proceedings in this case has been respected.

Brussels, 20 April 2021. Wouter WILS

(1) Pursuant to Articles 16 and 17 of 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 certain competition proceedings (OJ L 275, 20.10.2011, p. 29).

(2) Österreichische Bundesbahnen-Holding Aktiengesellschaft and Rail Cargo Austria Aktiengesellschaft (together referred to as ‘ÖBB’).

(3) Deutsche Bahn AG, DB Cargo AG and DB Cargo BTT GmbH (together referred to as ‘DB’).

(4) Société Nationale des Chemins de fer belges/Nationale Maatschappij der Belgische Spoorwegen (SNCB/NMBS) SA de droit public/NV van publiek recht, LINEAS Group NV (formerly SNCB Logistics NV/SA) and LINEAS NV (formerly Xpedys NV/SA) (together referred to as ‘SNCB’).

(5) 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 (OJ L 123, 27.4.2004, p. 18).

(6) Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ C 167, 2.7.2008, p. 1).

(7) The settlement meetings took place between 2 May 2019 and 28 August 2020.

(8) The Parties submitted their formal requests to settle on 18 September 2020 (DB) and 21 September 2020 (ÖBB and SNCB).

(9) Under Article 15(2) of Decision 2011/695/EU, parties to the proceedings in cartel cases that engage in settlement discussions pursuant to Article 10a of Regulation (EC) No 773/2004, may call upon the hearing officer at any stage during the settlement procedure in order to ensure the effective exercise of their procedural rights. See also paragraph 18 of Commission Notice 2008/C 167/01 on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ C 167, 2.7.2008, p. 1).