Final report of the Hearing Officer in case COMP/M.2547 - Bayer/Aventis Crop Science

(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))

(2004/C 91/03)

(Text with EEA relevance)

The draft decision based on Article 8(2) of Regulation 4064/89 (the Merger Regulation), gives rise to the following observations regarding the right to be heard:

1. The Commission sent a statement of objections to Bayer AG ("Bayer") on 15 February 2002. This was followed by a short supplementary statement sent on 25 February 2002. The parties responded to both statements. They did not request an oral hearing.

2. The parties raised one procedural issue before the Hearing Officer. On 28 March 2002 Bayer wrote to me concerning the replies of third parties to the market test carried out by the Commission on the proposed commitments that had been submitted by the parties on 15 March 2002. The market test resulted in a number of negative replies for certain markets. Bayer was informed of this and provided with an extensive summary of all responses. The summary did not identify the companies providing these responses. In their letter of 28 March Bayer requested that the sources of the responses be revealed. Bayer claimed this was essential for a proper assessment of the comments given by third parties since the reactions were likely to depend on the nature of a given third party and might vary between eg competitors interested in acquiring parts of the assets to be divested, and customers.

In reply, Bayer was informed that the provision of anonymised replies (in summarised form) is consistent with the caselaw of the Court of Justice and the Court of First Instance which has recognised the need to preserve confidential treatment (in particular Case 310/93 BPB Industries and British Gypsum v Commission [1995] ECR I-865, and Case T-229/95 Endemol v Commission [1999] ECR II-1299). The possibility of retaliation by the parties to the concentration cannot be underestimated. With regard to the specific argument raised by Bayer, the Commission is itself capable of factoring in potential "vested interests" should this be necessary. What is important is that the parties are informed of the facts and issues drawn to the Commission's attention in order to express their views on them.

In the present case, a large number of respondents expressly required confidentiality, in whole or in part. In the circumstances, and given the time constraints involved in conducting and processing the market test, it was appropriate not to reveal the identity of respondents, and to act cautiously by not revealing the names of any respondent (except one) in particular, in order to avoid the possibility that by revealing the identify of some, the identity of the others would also be revealed. The fact that the markets concerned by the present case are highly concentrated is particularly relevant in this respect.

The non-confidential version of one company's reply, however, was sent to the parties, identity included. This company did not require anonymity and there was no risk that, in revealing its identity, the identity of other third parties would also be revealed.

In the light of the above, I conclude that the parties' rights of defence have been fully respected. The draft decision deals only with objections which the parties have been afforded the opportunity of making known their views.

Done at Brussels, 12 April 2002.

Karen Williams