EN Official Journal of the European Union C 149/7

Final report of the Hearing Officer in cases COMP/F2-36.623, COMP/F2-36.820 and COMP/F2-37.275 — Peugeot SA

(pursuant to Articles 15 and 16 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)

(2006/C 149/06)

The draft decision in the abovementioned case gives rise to the following observations on the parties' right to be heard.

The case arose out of a number of complaints received from car brokers and final consumers according to which Peugeot SA had implemented measures aimed at restricting exports of Peugeot vehicles in the Netherlands and Germany.

On 30 April 2004, the Commission sent a statement of objections to Automobiles Peugeot SA (‘AP’) in France, Peugeot Deutschland GmbH (‘PDG’) in Germany and Peugeot Nederland BV (‘PNE’) in the Netherlands in which it was provisionally established that the group had adopted ‘a general strategy aimed at restricting cross-border sales of cars to final consumers and hence at limiting intra-brand competition between members of its distribution network located in different Member States’.

With regard to Germany, the Commission voiced four objections concerning: ‘components of the remuneration of dealers belonging to the network, certain promotional activities, a restriction of supplies to members of the network and pressure on dealers to implement the restrictions on exports’.

With regard to the Netherlands, the Commission voiced four objections of a similar nature to those concerning Germany, namely: ‘(i) a restrictive policy in relation to dealer remuneration, (ii) a restrictive policy on the occasion of several promotional campaigns, (iii) a policy of limiting supplies to dealers and (iv) direct warnings and instructions to several dealers to implement the strategy of restricting exports’.

The parties were given access to the file on the Commission's premises on 11 and 12 May 2004.

Following a reasoned request from the parties, the original time limit for replying to the statement of objections was extended until 30 July 2004.

The parties waived their right to be heard at a formal oral hearing.

After receiving Peugeot's reply to the statement of objections, the Commission conducted further enquiries. In the light of the additional information gathered, the Commission reconsidered its position on the objections relating to Germany, which were withdrawn.

As regards the Netherlands, the draft final decision maintains the objections originally levelled at the restrictive policy on dealer remuneration and the pressure exerted on dealers.

In the interests of transparency and in order to give full access to the Commission's file, a letter setting out the facts, complete with annexes, was sent to the parties on 26 May 2005. The arguments and considerations set out in the letter did not constitute new objections but were intended to enable the parties to make all comments which could be useful to their defence, bearing in mind the objections previously made.

The parties submitted their comments on 27 June 2005.

During the course of the procedure, the parties raised a number of questions about access to the file, sending a letter on the subject to the Hearing Officer in April 2003.

Peugeot took the view that the procedural guarantees were not respected during the inspections conducted by the Commission in April 2003. Two documents setting out the results of a legal audit requested by Peugeot of its lawyers following the inspections on 22 and 23 September 1999 and marked ‘strictly confidential’ were seized. Peugeot asked that they be returned, which was duly done on 14 April 2003 at a meeting at DG Competition. The document return form explicitly states that the documents in question had indeed been drawn up in connection with the company's defence and that for this reason they are covered by the privilege accorded to correspondence between a lawyer and his client. On 28 April 2003, the Hearing Officer in charge of the file at the time took the view that the procedure followed, which culminated in a letter from the relevant service in the Commission giving an assurance that no copy had been kept and that no use would ultimately be made of the documents in evidence against the company, respected the rights of the defence. He also confirmed that the Commission officials had confined themselves to a minimal and necessary check of the documents at issue.

In the light of the above, I consider that the right of the parties to be heard has been respected in this case. In my opinion, the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views.