Final Report of the Hearing Officer in case COMP/M.2416 - Tetra Laval/Sidel

(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 39/02)

(Text with EEA relevance)

The proceedings in this case raised two issues:

(i) Oral hearing on the supplementary statement of objections

The Commission sent the parties two statement of objections in this case. The first and main Statement of objections was the subject of an oral hearing on 26 September 2001. The supplementary statement of objections was not the subject of an oral hearing but the parties have had the opportunity to make known their observations in writing. The parties have requested an oral hearing in respect of the supplementary statement of objections which was denied to them on the ground that the final decision will not pursue any objections which would not have been set out in the first and main statement of objections. I have verified that the final decision is only based on the first statement of objections and I am satisfied that the rights of defence of the parties have not been violated.

(ii) Objectivity of the market test on the commitments proposed by the parties

In respect of the market test on the commitments proposed, the parties have made two allegations:

- first, that the questionnaire used to market test the proposed commitments was inaccurate or misleading,

- second, that the Commission refused access to the replies to the questionnaire.

On the accuracy of the questionnaire, the parties claimed that the questionnaire gave a description of the commitments which was incomplete, in particular in relation to the duration of a proposed license to be given to a third party. Although the description of the commitments in the questionnaire could have been more accurate, since the Commission had annexed to its questionnaire the full wording of the proposed commitments it can be reasonably assumed that any potential interested third party and any market operator having an interest in the outcome of this case will have taken the care to read all documents made available by the Commission before replying to the questionnaire. Since the Commission has not hidden any information, I can only conclude that the allegation of having sent out an inaccurate or misleading questionnaire is not founded.

On the issue of access to the replies to the questionnaire, the parties did not contest that they received a summary of all replies but claimed that the summary failed to report at least one reply which they had been informed of by another channel. This would therefore put into question the complete and objective nature of the summary of the replies which the Commission prepared for the parties. Hence, the parties claimed direct access to all replies in order to check by themselves the complete and objective nature of the Commission's summary. I do not think that the parties are entitled to a direct access to the replies to a market test. First, there is no legal obligation of the Commission to do a market test and, where it does so, to give access to the replies. Second, access to the full text of the replies is not the only means to allow the parties to verify the objectivity of a summary made by the Commission services. In case the Commission services do not give access to the replies and where the parties entertain doubts about the objectivity of the summary, the parties may call upon the Hearing Officer to check the objective nature of that summary. I have done so in the present case and I can confirm that the summary provided to the parties truly reflects the answers received by the Commission. The fact that one reply was missing was due to the late arrival of that reply. I have asked the Commission services to supplement the original summary by an additional summary on that reply.

I therefore conclude that the rights of the parties have been fully respected.

Emil Paulis