EN Official Journal of the European Union C 453/13

Final Report of the Hearing Officer (1)

Shrimps

(AT.39633)

(2014/C 453/07)

I. INTRODUCTION

1. The hearing officer originally responsible for this case was Mr Michael Albers. He organised and conducted the oral hearing and submitted an interim report to the competent member of the Commission in accordance with Article 14 of Decision 2011/695/EU. Following the departure of Mr Albers from the Commission, I took over this case as from 16 October 2013.

2. Thus, as regards the procedural steps that took place before my appointment, this report is based on the findings of the previous hearing officer.

II. PROCEDURE

A. Investigation phase

3. Subsequent to an immunity application submitted on […] under the Leniency Notice (2) by the North Sea shrimps trader Klaas Puul (3), the Commission carried out inspections at several business premises and private homes of alleged cartel participants in Belgium, Denmark, Germany and the Netherlands on 24, 25 and 26 March 2009. The Commission granted conditional immunity to Klaas Puul on 17 March 2009.

B. Statement of Objections

4. On 12 July 2012, the Commission issued a Statement of Objections (‘SO’) against Heiploeg Holding BV, Heiploeg Beheer BV, Heiploeg BV and Goldfish BV (together ‘Heiploeg’); Klaas Puul Holding BV, Klaas Puul Beheer BV and Klaas Puul BV (together ‘Klaas Puul’); Stührk Delikatessen Import GmbH & Co. KG. (‘Stührk’); Holding L.J.M. Kok BV and L. Kok International Seafood BV (together ‘Kok Seafood’). The Commission accused these traders of North Sea shrimps of having shared markets, allocated customers and coordinated their sales prices to retailers and purchase prices to fishermen.

C. Access to file

5. In July 2012, DG Competition granted the addressees of the SO access to the file via a DVD and access to the corporate statements of Klaas Puul at its premises. DG Competition also offered the external counsels of the addressees of the SO the opportunity to listen to audio recordings of phone calls between Kok Seafood’s managing director and other alleged cartel participants and to review conversation notes of such calls in a data room at its premises. Only Heiploeg took up the opportunity to access the corporate statements, listen to the audio recordings and review the conversation notes.

6. […] (4). Only Heiploeg made use of the opportunity to comment on these documents, which it did on 21 February 2013. On 8 November 2013, DG Competition sent Heiploeg a letter in which Klaas Puul had clarified the modalities of the discovery of those documents. The Commission allowed Heiploeg to comment on that letter before 14 November 2013.

D. Oral hearing

7. The oral hearing was held on 7 February 2013 and was attended by all the addressees of the SO.

E. Access to Stührk’s reply to the SO

8. On 27 September and 4 October 2013, DG Competition shared extracts from Stührk’s reply to the SO with all other parties and granted them the opportunity to submit written comments on those extracts (5). Only Heiploeg and Klaas Puul submitted written comments (6).

III. PROCEDURAL ISSUES RAISED BY THE PARTIES

A. The removal of evidence from a private home

9. Kok Seafood claimed that there was no legal basis for the removal of evidence from the private home of its managing director to the business premises during the inspection, and that the Commission should therefore discard the evidence in question. DG Competition informed me that only five pieces of evidence used in the SO have been transferred from the private home to the business premises (7). Since the Commission is not relying on that evidence in the draft decision, the issue has become without object.

B. Legal professional privilege

10. Kok Seafood claimed that audio recordings of telephone conversations between its managing director and other alleged cartel participants, reports of these audio recordings drawn up by the managing director of Kok Seafood or one of his employees, and processed reproductions of these audio recordings by the Commission, benefit from legal professional privilege and, therefore, may not be used as evidence.

11. It is, however, settled case-law that documents are merely covered by legal professional privilege if they have been drawn up exclusively for the purpose of seeking legal advice from a lawyer in exercise of the rights of the defence (8) which have a relationship to the subject-matter of the relevant Article 101/102 TFEU procedure (9). Since Kok Seafood admitted in its reply to the SO that it mainly wanted to use the information as evidence in a contractual dispute, and thus not exclusively for the purpose of seeking legal advice from a lawyer in exercise of the rights of the defence in the North Sea shrimps cartel case, it can be concluded that the legal professional privilege claims of Kok Seafood are unfounded.

C. The use of secretly recorded telephone conversations

12. Heiploeg claimed that the audio recordings of telephone conversations made by the managing director of Kok Seafood cannot be used as evidence by the Commission because under the laws of certain EU Member States it is prohibited to either secretly record telephone conversations or make such recordings available to third parties.

13. During the oral hearing, Heiploeg confirmed that the recording of telephone conversations and the making available of those recordings to third parties are to its knowledge not unlawful under the law of the Netherlands (10), the country where the telephone conversations had been recorded and seized by the Commission during the inspection.

14. Even if the managing director of Kok Seafood infringed any national law, that does not necessarily mean that the Commission is not allowed to use those recordings as legitimate evidence. According to settled case-law, the prevailing principle in European Union law is that of unfettered evaluation of evidence and the only relevant criterion for assessing evidence produced lies in the reliability thereof (11).

15. Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) also does not require the Commission to set aside evidence which private parties have obtained in an unlawful manner, provided that the proceedings as a whole were fair (12), i.e. that the defendant has been given the opportunity of challenging the authenticity and the use of the evidence. The use of unlawfully obtained recordings does not in itself call into question the fairness of the procedure in the sense of Article 47 of the EU Charter of Fundamental Rights and Article 6 ECHR (13).

16. Since Heiploeg has been given the opportunity of challenging the authenticity and the use of the audio recordings, it can be concluded that the audio recordings should not be discarded as evidence on the basis that the telephone conversations in question have been secretly recorded by Kok Seafood’s managing director and have subsequently been made available to third parties.

D. Biased presentation of the facts by the Commission

17. Both Kok Seafood and Heiploeg claimed that the reproductions of the audio recordings processed by the Commission are no real transcripts of spoken text, and that the Commission has added its own interpretation and included selective and wrong citations.

18. In the draft decision, the Commission explains that it has sometimes edited the original conversation notes in order to facilitate the reading of text without interpunction and the identification of the parties to the conversation (14). Where the parties criticised the Commission’s interpretation of the original conversation notes, the draft decision explains why the Commission considers a certain interpretation or conclusion justified (15). In the light of the explanations provided, I do not share the view of Kok Seafood and Heiploeg that the Commission has presented the facts in a biased manner.

E. Right to be heard on intended rejection of inability to pay request

19. During a state of play meeting that was held with Heiploeg on 5 November 2013, DG Competition indicated to Heiploeg that the Commission intended to reject its inability to pay request (‘ITP request’). Heiploeg complained to me that the Commission had not given Heiploeg sufficient opportunity to state its views on the intended rejection of its ITP request and on the reasons thereof.

20. I am however of the view that the right to be heard in principle only relates to the matters to which the Commission has taken objection (16), and does not include a general right to comment on the position the Commission intends to take in its final decision (17). Since the relevant provisions of the Commission Notice on Best Practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (18) do not provide for a right to comment on the intended rejection of an ITP request either, there is in my view no reason to conclude that the Commission has not respected the effective exercise of Heiploeg’s procedural rights, in particular its right to be heard.

IV. THE DRAFT DECISION

21. Pursuant to Article 16(1) of Decision 2011/695/EU, the final report shall consider whether the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views.

22. Upon review of the draft decision, I conclude that it does not deal with any objection in respect of which the parties have not been afforded the opportunity of making known their views.

V. CONCLUSION

23. Based on the considerations made above, it is concluded that all participants in the proceedings have been able to effectively exercise their procedural rights in this case.

Brussels, 26 November 2013. Joos STRAGIER

(1) Pursuant to Articles 16 and 17 of Decision of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29) (‘Decision 2011/695/EU’).

(2) Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ C 298, 8.12.2006, p. 17).

(3) Klaas Puul Holding BV, Klaas Puul Beheer BV and Klaas Puul BV.

(4) […].

(5) ID 2279-2292.

(6) Heiploeg on 14 October and Klaas Puul on 18 October 2013.

(7) ID 793, 800, 844, 846 and 847.

(8) Joined Cases T-125/03 and T-253/03 Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission [2007] ECR II-3523, paragraph 123.

(9) Case 155/79 AM & S Europe Limited v Commission of the European Communities [1982] ECR 1575, paragraph 23.

(10) According to Article 139c(1) Dutch Criminal Code, the recording of a telephone conversation is only unlawful if it is done by someone who is not a party to the conversation.

(11) Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others v Commission [2004] ECR II-2501, paragraph 273.

(12) The Court has recognised the general principle of European Union law that everyone is entitled to a fair legal process (Case C-341/04 Eurofood IFSC [2006] ECR I-3813, paragraph 65).

(13) ECHR 26 April 2007, application No 71525/01, Popescu v Romania (No 2), paragraph 106.

(14) See, for example, recitals 95, 104, 138, 207, 212, 218 and 322 of the draft decision.

(15) Also see recital 329 and the recitals referred to in footnote 521 of the draft decision.

(16) See also Article 27(1) of Regulation (EC) No 1/2003 of the Council of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(17) Cf. Case T-15/02 BASF v Commission [2006] ECR II-497, para. 94 and Case T-392/09 1. garantovaná v Commission, not yet reported, para. 74.

(18) OJ C 308, 20.10.2011, p. 6, paragraphs 87-90.