Final report of the Hearing Officer in case COMP/M.2903 - DaimlerChrysler/Deutsche Telekom/JV

(pursuant to Article 15 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))

(2003/C 277/05)

(Text with EEA relevance)

The draft decision in the present case gives rise to the following observations:

On 11 November 2002 DaimlerChrysler Services AG ("DaimlerChrysler") and Deutsche Telekom AG ("Deutsche Telekom") notified a proposed concentration to the Commission pursuant to Article 4 of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations(1) ("Merger Regulation") whereby they acquire joint control of a new undertaking Toll Collect GmbH. Cofiroute SA ("Cofiroute") is also a party directly involved in the proposed concentration.

On 20 December 2002 the Commission initiated proceedings pursuant to Article 6(1)(c) of the Merger Regulation in this case. On 28 February 2003 the Commission sent the parties a statement of objections. Access to file was made available to the parties on the same date by way of CD-Rom. The parties responded to the statement of objections on 14 March 2003. In the meantime, on 11 March, they also submitted new commitments modifying the concentration plan to the Commission(2). A market test on the commitments was launched immediately thereafter.

Cofiroute received a non-confidential version of the statement of objections on 17 March 2003. Cofiroute did not request access to file.

On Oral Hearing on the case was held on 19 and 20 March 2003. A number of third parties that had taken part in the procedure also participated in the Oral Hearing. The main focus of discussion at the oral hearing was the commitments that had been submitted by the parties on 11 March.

On 3 April 2003, in accordance with the legal deadline provided for under the Merger Regulation, the parties submitted a final set of commitments to the Commission. Given the extensive consultation that had been carried out with third parties already in this case, the Commission services considered that a further market test was not necessary in order to assess these commitments. In addition, in view of the time constraints imposed by the Merger Regulation, a further market test was not feasible at this point in time in the present case.

On 23 April 2003, one of the third parties that had participated in the procedure, wrote to me requesting to be heard with respect to any new commitments submitted by the parties. In response, I informed this third party why, for the reasons set out in the previous paragraph, no further consultation had taken place on the commitments submitted by the parties on 3 April. This particular third party had been given the opportunity to present its views to the Commission on a member of occasions in the course of the procedure, and had been consulted on the two market tests carried out on the earlier commitments submitted to the Commission. I also informed him that in its assessment of these commitments and as part of its overall assessment of the competition issues in this case, the views of this and other third parties had been given very careful consideration by the Commission services.

No issues on the rights to be heard were raised by the parties in this case.

The draft decision deals only with objections in respect of which the parties have had the opportunity of making known their views.

Accordingly, I conclude that the rights to be heard have been respected in the present case.

Brussels, 28 April 2003.

Karen Williams

(1) OJ L 395, 30.12.1989, p. 1.

(2) Commitments had been submitted in the first phase of the procedure but were rejected as inadequate in the Commission's statement of objections.