EN Official Journal of the European Union C 98/14

Final report of the Hearing Officer (1)

Case COMP/37.956 — Ronds à Béton (‘Reinforcing bars’)/Re-adoption

2011/C 98/05

The case concerns an alleged cartel among eight Italian suppliers of concrete reinforcing bars and between these suppliers and one of their associations.

The draft Decision gives rise to the following observations:

The first Decision and the judgment of the Court of First Instance

The alleged infringement has already been the object of the Commission Decision of 17 December 2002 relating to a proceeding pursuant to Article 65 ECSC (hereafter: ‘first Decision’) (2).

The then responsible Hearing Officer informed on the procedure leading to the first Decision in his report of 9 December 2002 (3).

On appeal by some of the addressees, the Court of First Instance of the European Communities (‘CFI’) annulled the first Decision in 2007 (4). The CFI held that, since the ECSC Treaty expired before the adoption, the Commission could not base its decision on Article 65(4) and (5) ECSC in order to establish an infringement of Article 65(1) ECSC and impose fines. The CFI annulled the decision solely on this ground while other parts of the decision were not analysed.

The re-adoption procedure

The Commission subsequently proceeded to readopt the first Decision without changing its substance. It sent a letter on 30 June 2008 (the ‘Letter’) to the addressees of the first Decision in which it informed them about its intention to readopt the decision on the basis of Regulation (EC) No 1/2003 and the statement of objections of 26 March 2002 as well as the supplementary statement of objections of 13 August 2002.

In spite of the fact that almost all of the responding recipients complained in their reply about the Commission's intention to readopt the first Decision without issuing a new statement of objections and following all the other procedural steps foreseen by Regulations (EC) No 1/2003 and (EC) No 773/2004, the Commission did neither issue another statement of objections nor offered the parties additional opportunities to be heard orally.

The rights of the defence of the parties were already observed prior to the adoption of the first Decision. After the notification of the statement of objections and the supplementary statement of objections as well as the initial oral hearing the parties were able to submit their observations on the objections raised by the Commission, which then served as the basis of the assessment for the purposes of adoption of the first Decision. Regarding in particular the legal basis for the re-adoption of the decision, the parties already had the opportunity to comment thereon, since the supplementary statement of objections indicated that EC procedural law (the then applicable Regulation No 17) would constitute the legal basis for the adoption of the first Decision. Further, they were afforded the opportunity to make again observations on this issue following the Commission letter of 30 June 2008.

Moreover, the rights of the defence are limited to questions concerning the truth and relevance of the facts and matters alleged as well as the documents used by the Commission to support its claim that there has been an infringement of competition law. In the situation of the re-adoption of a decision, which is in all material aspects identical to the first Decision, the right to be heard is respected, insofar as the re-adopted decision does not contain any new objections as compared with the first Decision. Issues such as the passage of time, limitation periods, the overall duration of the administrative proceedings and developments in the case-law subsequent to the adoption of the annulled decision, do not alter the substance of the objections and are unrelated to any new objections, as they do not concern any conduct other than that in respect of which the undertakings concerned have already been heard (5).

The draft Decision

In my view, the draft Decision submitted to the Commission deals only with objections in respect of which the parties have been afforded the opportunity of making known their views.

No additional queries or submissions have been made to the Hearing Officer. In view thereof, and taking into account the observations set out above, I consider that the right to be heard has been respected with regard to the addressees of the draft Decision.

Brussels, 22 September 2009. Michael ALBERS

(1) 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).

(2) COMP/37.956 — Ronds à Béton (‘Reinforcing bars’).

(3) OJ L 162, 19.6.2001, p. 21.

(4) Judgment of 25 October 2007 in Joined Cases T-27/03, T-46/03, T-58/03, T-79/03, T-80/03, T-97/03 and T-98/03, SP and Others v Commission (‘Judgment’).

(5) Judgment of 15 October 2002 in Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 to C-252/99 Ρ and C-254/99 Ρ Limburgse Vinyl Maatschappij and Others (PVC II) [1999] ECR 1-8375, paragraphs 90-103.