Final report of the Hearing Officer in case COMP/M.2978 - Lagardère/Natexis/VUP

(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 102/09)

(Text with EEA relevance)

The draft decision gives rise to the following observations:

An Article 6(1)(c) decision was sent to the notifying party on 5 June 2003. In the course of the in-depth inquiry prior to the issue of the statement of objections the notifying party sought access to key documents on the Commission's file pursuant to the draft transparency policy published by the Commission in December 2002. Certain materials were made available to the notifying party (in particular questionnaires, the economic study and the BEUC report). However some third parties stipulated that their submissions should be disclosed only on the basis of reciprocity. The notifying party did not agree with this approach. On 15 October 2003, Lagardère's legal representatives addressed a letter to me on this subject. At this stage of the procedure however, given that the sending of the Statement of Objections was by then imminent (a fact that was known to the notifying party) further progress on this issue was not feasible at that point. The notifying party was also reminded that the transparency provisions were still draft proposals at the time. However, I stated that I would ensure the experience in this case would be considered when finalising the text of the Best Practices Guidelines on the conduct of EC merger proceedings.

A Statement of Objections was sent to the notifying party on 27 October 2003. Access to the file was provided on the same day and the day following, in the form of two CD-ROMs. On receipt of a request from the notifying party for further access to specific data submitted by third parties that was in fact confidential, the case team was able to reformulate such information in a non-confidential format and thus to provide it to the notifying party in this manner. In addition, following the signature of a confidentiality agreement the notifying party was also provided, on request, with complete access to the programme used in the econometric study carried out on behalf of the Commission.

The notifying party was given initially until 10 November 2003 to reply to the statement of objections(1). The notifying party subsequently requested and was granted an extension of the deadline to reply until the 17 November 2003. The date of the oral hearing was also rescheduled. The notifying party provided a response to the statement of objections in due time. The notifying party decided to waive the right to an oral hearing.

In the meantime, on 13 November 2003, the notifying party submitted a document containing orientations of a proposal for commitments. The relevant Commission services agreed to carry out a market test on the basis of these orientations. Accordingly, a non-confidential version of the potential commitments was sent to a number of third parties, together with a list of questions, requesting their observations. Interested third parties who had actively participated in the case were also sent copies of the non-confidential version of the Statement of Objections and, in the absence of an oral hearing, the notifying party's written response, for its comments.

On 2 December 2003 (the deadline for submitting commitments to modify the concentration plan) the notifying party presented a package of remedies in order to resolve the competition concerns identified by the Commission services. Third parties were also informed about the commitments formally submitted.

On 2 December also, the notifying party was provided with certain additional information upon which the Commission intended to rely in the decision, for comment. On 17 December the notifying party received a third CD-ROM containing non-confidential versions of additional information (in particular the market test) received by the Commission up to the 12 December 2003.

In the light of the foregoing, I consider that the rights to be heard have been respected in this case.

Done at Brussels, 23 December 2003.

Karen Williams

(1) This was immediately extended until 11 November given that the second CD-ROM was made available only on 28 November.