EN Official Journal of the European Union C 219/7

Final report of the Hearing Officer in Case COMP/E-1/38.113 — Prokent/Tomra

(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 219/09)

The present proceedings resulted from a complaint submitted by Prokent AG against the Tomra Group on 26 March 2001 (1). The complaint originally concerned an abuse of Tomra's dominant position in the market for the supply of so-called reverse vending machines and related products, in particular backroom equipment, to prevent market access by competitors.

The Commission took the view that, according to Article 56 of the EEA Agreement, it had jurisdiction over this case (2) and initiated an investigation. Subsequent to that the Commission concluded that Tomra was a dominant undertaking both within the EU and within the territory of the EFTA States and had engaged in exclusionary conduct contrary to Article 82 of the EC Treaty and Article 54 of the EEA Agreement in several EU Member States. The Commission considered that Tomra had implemented this strategy, in particular, through exclusivity agreements, quantity commitments and rebate schemes.

Accordingly, the Commission issued a Statement of Objections (SO) on 1 September 2004 which covered mainly Tomra's policy and practices until the beginning of 2003 (3). The SO was addressed to: (i) Tomra Systems ASA; (ii) Tomra Europe AS; (iii) Tomra Systems BV; (iv) Tomra Systems GmbH; (v) Tomra Buttikksystemer AS; (vi) Tomra System AS (DK); (vii) Tomra Systems AB and (viii) Tomra Leergutsysteme GmbH.

Access to file

By 13 September 2004, all addressees had been granted complete access to the file.

Deadline to reply

Upon reception of the SO, Tomra applied for an extension of the deadline to reply of two months without giving, in my view, sufficient grounds to grant its request. However, I exceptionally decided to extend the deadline until 14 November 2004.

Upon a second request by Tomra, I agreed to a further extension until 22 November 2004. Tomra had submitted that the information necessary to answer in detail to the SO ‘had to be obtained by interviews with employees who have not had to keep records […] and [that it should] consult former employees’. I considered that the need to conduct interviews can allow for an extension of the deadline to reply to an SO only in exceptional cases. I accepted that this could be the case for Tomra, given its relatively lean management structure, but only to a limited extent.

Oral Hearing

Tomra formally requested an oral hearing pursuant to Article 12 of Commission Regulation (EC) No 773/2004, which took place on 7 December 2004.

The specific situation of the complainant in this case

As has been pointed out above, this procedure was initiated on the basis of the complaint by Prokent AG, a German competitor of Tomra. In September 2003, Prokent AG went bankrupt and was acquired by the German company Wincor Nixdorf International GmbH by way of an asset deal. On 26 September 2003, the Commission was informed that Prokent AG had initiated its liquidation procedure.

In application of Article 6 of Regulation (EC) No 773/2004, a non-confidential version of the SO was sent to Wincor Nixdorf International GmbH on 26 October 2004 on the assumption that it was the legal successor of the complainant. The Commission did not receive any comments from them, and they did not express a wish to participate in the oral hearing.

On 6 May 2005, i.e. five months after the oral hearing, a lawyer informed the Commission services that he had received a power of attorney from Prokent AG, which had not yet lost its legal personality, to carry out its representations in this antitrust procedure. In addition, he requested copies of any decisions the Commission had adopted so far. A non-confidential version of the SO was therefore sent to him on 27 May 2005, offering Prokent AG an opportunity to submit comments by 24 June 2005. On 15 June 2005 this deadline was extended upon request until 5 August 2005. The Commission services also offered Prokent AG an opportunity to make oral observations on the case at a meeting that would have been held at the Commission premises and in my presence.

Prokent AG informed the Commission by fax of 16 August 2005 that it would not make any written comments to the SO. By e-mail of 18 November 2005, Prokent also declined the Commission's offer to make oral observations.

Since the Commission has expeditiously adopted corrective measures taking into account the fact that the complainant had not ceased to exist as a legal person after its bankruptcy, I consider that the complainant's procedural rights have been fully respected in this procedure.

The Commission's final orientation

DG Competition has addressed the reasoning and factual elements submitted by Tomra in its written reply and at the oral hearing. As a consequence, Denmark was removed from the list of the countries where the abuse was established and Tomra's Danish subsidiary Tomra System AS is no longer an addressee of the final decision.

In the light of the above, I conclude that the draft decision only contains objections in respect of which the parties have been afforded the opportunity of making known their views.

I consider that the rights to be heard of the participants to this proceeding have been respected.

Brussels, 22 March 2006. Serge DURANDE

(1) Hereinafter ‘Tomra’.

(2) Tomra's turnover in the territory of the EFTA States did not equal 33 per cent or more of its turnover in the EEA. Several of Tomra's competitors were based in EC Member States, while Tomra also had a production subsidiary in an EC Member State.

(3) In April 2002, Tomra approached the Commission with a view to settling the case. The Commission did not consider this appropriate at the time and therefore proceeded to issue a SO.