Final report by the hearing officer on case COMP/36.700 - Industrial and medical gases

(pursuant to Article 15 of the 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 78/04)

(Text with EEA relevance)

This draft decision refers to a pricing agreement in the field of industrial gases on the Dutch market. It has given rise to the following observations as regards the parties' right to be heard:

1. NV Hoek Loos asked for a number of documents relating to the prices of its products to be treated as confidential. Since the documents concerned price-fixing and they were useful to determine the nature of the infringement, this request was not accepted by the hearing officer, who decided to abide by the terms of Notice 97/C 23/03 in the matter. On 15 June 2001 the Commission therefore decided to reject the arguments advanced by Hoek Loos, which did not appeal against the decision.

2. The statement of objections was sent to the undertakings on 9 July 2001. Some difficulties arose with access to the file, owing to the use of CD-ROMs. The difficulties were resolved in stages between August and October 2001 by dispatching new CD-ROMs and establishing non-confidential versions of documents required by the undertakings in order to exercise their right to be heard. Consequently, the deadline for reply to the statement of objections was postponed to 15 November 2001.

3. The hearing was held on 10 January 2001 for the seven parties which had requested it. It enabled the undertakings to draft their written replies, notably those relating to the issue of the limitation period.

After the hearing, it was decided not to take into account infringements committed between 1989 and 1991 for the purposes of calculating the fine, but to consider only the period in respect of which the Commission has unbroken evidence, that is, September 1993 to December 1997.

Two particular issues as regards the liability for the infringement arose in the course of proceedings:

1. AGA Gas BV, the company to which the statement of objections was addressed, was sold during the investigation. The parent company, AGA AB, proposed that it assume responsibility for its former branch; this is why the final decision is addressed to AGA AB. The latter has explicitly renounced to have a statement of objections addressed to it.

2. The parent company, Air Products and Chemicals Inc (United States of America), has a branch, Air Products Nederland BV, in the Nederlands which was party to the pricing agreement, and a branch in the United Kingdom, Air Products Europe, which is responsible for coordinating the legal activities of the European branches. Air Products Europe received the statement of objections, replied to it and represented Air Products Nederland BV at the hearing.

Air Products Nederland BV has explicitly renounced to have a statement of objections addressed to it. The final decision is addressed to Air Products Nederland BV.

The draft decision submitted to the Commission contains only arguments presented to the parties in the statement of objections.

Brussels, 23 July 2002.

Serge Durande