EN Official Journal of the European Union C 371/9

Final Report of the Hearing Officer (1)

Airfreight

(C.39258)

(2014/C 371/08)

This case concerns a cartel amongst air cargo carriers, which coordinated […] (2) their pricing behaviour in respect of fuel and security surcharges as well as commission to forwarders.

The draft decision gives rise to the following observations:

Statement of Objections

The Statement of Objections was adopted on 18 December 2007 and was addressed to 38 legal entities belonging to 27 groups of undertakings (hereinafter the Parties). In the Statement of Objections the Commission reached the preliminary conclusion that the addressees participated in a single and continuous infringement of Article 101 TFEU, Article 53 EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (the EC-Swiss Agreement) (3) between […] and 14 February 2006. The Parties coordinated […] their pricing behaviour in respect of six different pricing elements; fuel surcharges, security surcharges, […]. The Commission announced its intention to adopt an infringement decision and impose fines according to Articles 7 and 23 of Council Regulation (EC) No 1/2003 (4).

Deadline to respond to the Statement of Objections

The Parties were originally afforded approximately 10 weeks to respond to the Statement of Objections. However, the DVD containing the accessible investigation file was only made available to the Parties some time after the notification of the objections, following which DG Competition extended the original deadline by approximately three weeks.

Almost all Parties made requests to me for further extensions, which I partially accepted. These extensions ranged, depending on each individual reasoning and justification, from one to three additional weeks. All Parties responded to the Statement of Objections within the given time limits.

Access to file

The Parties had access to the main part of the Commission's investigation file by way of DVD. Access to corporate statements by the immunity and leniency applicants were made available on the Commission's premises. Subsequently, various corrections and clarifications with regard to the accessible investigation file were made and the Parties received two additional DVDs with information missing from the original DVD.

Several Parties requested additional access pursuant to point 27 of the Commission's Notice on access to file (5). These requests referred, in particular, to other Parties' replies to the Statement of Objections. It follows from established jurisprudence that there exists no general right to access other Parties' replies (6). Nevertheless, access may be granted to information received by the Commission after the notification of the SO, where such information may constitute new evidence of either incriminating or exculpatory nature. However, the relevance of such information can only be fully appraised once DG Competition has been able to fully consider the written replies as well as oral submission and the scope of a potential Commission decision has been clarified. In light of the above I rejected, in line with established Commission practice and jurisprudence, the requests for access to other Parties' replies.

DG Competition did provide, in accordance with point 27 of the Notice on access to file, additional access to some new evidence of potentially exculpatory nature, which it had received after the notification of the Statement of Objections.

Oral Hearing

The Oral Hearing was held from 30 June to 4 July 2008. All addressees of the Statement of Objections attended the hearing with the exception of […], which declined its right to be heard orally.

Following the hearing I decided to provide all participants with non-confidential copies of visual presentations, which had been made during the hearing. I consider that such presentations are intrinsically linked with the oral presentations and that the recordings, to which all attending parties are entitled under Article 14(8) of Commission Regulation (EC) No 773/2004 (7), would be incomplete without the supporting visual presentations.

Post-hearing

Some Parties to the proceedings have made claims that the Statement of Objections had not sufficiently clarified the exact fining parameters and, unless they were given the opportunity to be heard on those parameters before the Commission adopts a final decision imposing fines, their right to be heard has been breached.

I found that, in line with established jurisprudence, these claims were unfounded as the Commission in the Statement of Objections had set out, in general terms, such parameters and explained to what extent the Fining Guidelines would be applied to the particular circumstances of this case.

In this regard it should be noted that according to established jurisprudence the Commission fulfils its obligation to respect an undertaking's right to be heard with regard to the calculation of fines, if it indicates expressly in the Statement of Objections that it will consider whether it is appropriate to impose fines on the undertaking concerned and that it sets out the main elements of fact and law that may give raise to a fine, such as the gravity and duration of the alleged infringement and the fact that it has been committed intentionally or negligently. In doing so, the Commission provides the undertaking with the necessary elements to defend themselves not only against a finding of an infringement but also against the imposition of fines (8).

The draft decision

Following the Parties' written and oral submissions, the Commission has retained its allegations against 15 groups of undertakings while it decided not to pursue its objections against 12 groups of undertakings. With regard to the Parties retained in the draft decision, the scope of the infringement has been reduced as compared to the objections set forth in the Statement of Objections. More particularly, the alleged illicit conduct in respect to three of the six pricing elements […] have not been pursued. On the other hand, the coordination of fuel surcharges, security surcharges and commission to forwarders are retained and considered to form part of a single and continuous infringement.

In light of the powers conferred upon the Commission under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Swiss Agreement, the overall duration of the infringement has been maintained with regard to air transport between EU airports as well as air transport between EEA airports while it has been reduced with regard to air transport services between EU/EEA airports and airports in third countries.

In my view the draft decision relates only to objections in respect of which the Parties have been afforded the opportunity to make known their views.

In view of the observations set out above, I consider that the right to be heard has been respected with regard to the addressees of the Decision.

Brussels, 14 April 2010. 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) Confidential information.

(3) OJ L 114, 30.4.2002, p. 73.

(4) OJ L 1, 4.1.2003, p. 1.

(5) OJ C 325, 22.12.2005, p. 7.

(6) Cf CFI judgment of 8 July 2008 in T-53/03, paragraphs 39 et seq., BPB.

(7) OJ L 123, 27.4.2004, p. 18.

(8) See amongst others ECJ judgment in joined cases C-101/07P and C-110/07P of 18 December 2008, para. 48, French Farmers and CFI judgment of 18 June 2008, T-410/03, para. 420 et seq., Hoechst.