EN Official Journal of the European Union C 165/5

Final report of the Hearing Officer in Case COMP/38.096/D1 — PO/Clearstream

(Clearing and Settlement)

(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)

2009/C 165/04

The draft decision in this case gives rise to the following observations:

The Statement of Objections was sent to Clearstream International SA (‘CI’) in Luxembourg and Clearstream Banking AG (‘CBF’) in Frankfurt on 28 March 2003. It was received by the parties on 31 March 2003.

On 9 April 2003 the parties requested access to the file. Access was provided on 14 April 2003. There, due to an administrative error, the parties were provided with access to one document classified as confidential. The document in question was an internal memorandum of Euroclear Bank S.A./N.V. (‘EB’) which sets out the objectives and strategy that EB intended to adopt at a meeting. EB was informed of this error prior to the oral hearing. Contrary to the assessment of the relevant Commission services, the parties considered that the document declared confidential contained exonerating evidence which should be used in their favour in the Commission’s final decision. I took the view that the document in question did not contain exculpatory information which would have to be made available to the parties or which would have to be used in the Commission’s final decision.

The parties were given two months to reply to the Statement of Objections.

By letter of 30 May 2003 the parties’ legal representatives responded to the Statement of Objections. The reply was received on 3 June 2003.

The parties requested an oral hearing, which took place on 24 July 2003.

By e-mail of 8 April 2003 EB, requested the permission to participate in the oral hearing and asked for a non-confidential version of the Statement of Objections. Both requests were accepted and EB was provided with a non-confidential version of the Statement of Objections on 2 May 2003. On 13 June 2003 EB submitted its comments. EB was afforded the opportunity to review the Statement of Objections prior to its disclosure to other parties than Clearstream, as it could possibly contain confidential information relating to EB.

Subsequent to the oral hearing, the relevant Commission services further investigated the case, sending Article 11 letters to the parties on 25 July 2003 and to EB on 29 July 2003. The replies, which were obtained on 1 September (parties) and 28 October 2003 (EB) were placed on the file.

On 25 August 2003 the parties requested additional access to the file. Their request related to two replies of 367 pages that Euroclear had submitted in response to the Commission’s Article 11 letters. The relevant Commission services replied on 6 October 2003, granting access to 141 pages of the requested documents. It was explained that the remaining pages contained agreements between Euroclear and its customers or suppliers which presented business secrets. For the latter agreements, the relevant Commission services provided short explanations of the respective subject matters. The parties did not raise objections before the Hearing Officer in this respect.

Further access to the file was taken on 3 November 2003. As promised in the reply of the relevant Commission services of 6 October 2003, access was granted to additional documents that had been placed on the file subsequent to 14 April 2003.

On 3 November 2003, a meeting between the relevant Commission services and the parties was held. The parties expressed their views on how their newly provided material should be interpreted. The relevant Commission services explained how they intended to make use of the information that they had obtained after the oral hearing. In that respect, the relevant Commission services also sent a letter to the parties on 17 November 2003, which explained the interpretation of the additionally obtained information the Commission intended to adopt in its final decision. The parties were afforded the opportunity to comment on this letter until 1 December 2003.

Following the oral hearing, the objections addressed to the parties were maintained. However, the Commission dispensed with its intention to fine the parties.

In the light of the above, I consider that the rights to be heard of the parties and third parties have been respected in the present case. The draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views.