Final Report of the Hearing Officer (1)

Trucks (Scania)

(AT.39824)

(2020/C 216/06)

1. This case concerns an infringement of Article 101 TFEU and Article 53 EEA Agreement consisting of price and gross price increase coordination for the sale of medium and heavy trucks as well as […] timing and passing on of costs as regards the introduction of models complying with new environmental standards.

2. This case is a hybrid cartel case. The Commission has already adopted, on 19 July 2016, a decision addressed to five undertakings which opted for the cartel settlement procedure (the ‘Settlement Decision’) (2). The present draft decision is addressed to Scania AB, Scania CV AB and Scania Deutschland GmbH (together ‘Scania’), which, although having also taken part in the settlement discussions, did in the end not introduce settlement submissions.

3. The statement of objections (‘SO’) was adopted by the Commission and notified to Scania in November 2014. In the following months, Scania was granted access to the file. I did not receive any complaint or request from Scania concerning this access.

4. In 26 July 2016, shortly after the adoption of the Settlement Decision, Scania requested that the Directorate-General for Competition (‘DG Competition’) provide it with an index of the documents added to the file since initial access was granted, so as to identify potentially exculpatory evidence. Having received an index of the documents added to the file between 20 November 2014 and 10 August 2016, Scania then requested access to a number of documents listed in this index. DG Competition granted access (at the Commission’s premises) to some of these documents, namely documents containing procedural information concerning the settlement procedure and leniency documents, but refused access to other documents, namely correspondence with third parties and the replies to the SO that had been submitted by two of the addressees of the Settlement Decision. Following this refusal, Scania raised the issue with me. After examination of the documents, I rejected Scania’s request for access to the correspondence with third parties (essentially requests from potential follow-on damages claimants for public access under Regulation 1049/2001 (3)) but granted access to four passages in the other parties’ replies to the SO that could possibly qualify as new exculpatory evidence vis-à-vis Scania (in that in those passages the other party corrected or added to its leniency corporate statements or added new evidence from questioning an employee).

5. Scania responded in writing to the SO on 23 September 2016, and requested to be heard also orally. The oral hearing was held on 18 October 2016.

6. On 7 April 2017, the Commission addressed a Letter of Facts (‘LoF’) to Scania AB. On 12 May 2017, Scania AB submitted its response to the LoF. On 23 June 2017, the Commission addressed the same LoF to Scania and gave it a period of ten working days within which to submit additional comments beyond the ones provided by Scania AB on 12 May 2017. On 7 July 2017, Scania confirmed that the comments provided by Scania AB equally reflected the position of Scania CV AB and Scania Deutschland GmbH.

7. In its reply to the statement of objections, Scania has argued that, following the adoption of the Settlement Decision on 19 July 2016, the Commission can no longer adopt a decision finding an infringement by Scania without violating the principle of the presumption of innocence and Scania’s rights of the defence. I do not agree with this view. The Settlement Decision does not contain any finding of infringement with regard to Scania, and Scania has been able to fully exercise its rights of defence through its written reply to the SO and the LoF and at the oral hearing.

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

9. Overall, I consider that the effective exercise of Scania’s procedural rights has been respected in this case.

Brussels, 26 September 2017. 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) See Commission Decision C(2016) 4673 of 19 July 2016, summary publication (OJ C 108, 6.4.2017, p. 6), and Final Report of the Hearing Officer (OJ C 108, 6.4.2017, p. 4).

(3) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43.