EN Official Journal of the European Union C 137/5

Final report of the Hearing Officer in Case COMP/38695 — Sodium Chlorate

(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)

2009/C 137/05

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

The Statement of Objections and Access to file

Following three leniency applications and a subsequent investigation, the Commission issued on 27 July 2007 a Statement of Objections (SO) to the following parties concerning alleged infringements of Article 81 of the Treaty and Article 53 of the EEA agreement.

EKA Chemicals AB (‘EKA’) and its ultimate parent company Akzo Nobel NV; Finnish Chemicals OY (‘Finnish Chemicals’) and its parent company Erikem Luxembourg SA (‘Erikem’); Arkema France SA (previously Atofina SA, hereinafter ‘Atofina’) and its parent company Elf Aquitaine SA (‘Elf Aquitaine’) and Aragonesas Iridustrias y Energia SAU (‘Aragonesas’) and its parent company Uralita SA (‘Uralita’).

The parties received access to the file through a DVD which they received between 31 July 2007 and 2 August 2007. The parties received access to EKA Chemicals oral statements at the Commission’s premises on 2 August 2007 (Uralita and Aragonesas); on 14 August 2007 (Finnish Chemicals) and on 11-12 as well as on 19-20 September 2007 (Atofina).

The parties did not address any issues concerning access to file to me.

The addressees of the SO were originally granted a deadline of 6 weeks to provide their written comments on the SO from the date of receipt of the Commission’s file in the form of a DVD. Upon their reasoned requests, I granted extensions between two weeks and one month, while rejecting one insufficiently reasoned request for extension. All parties responded on time.

The oral hearing

All parties to the proceedings except Aragonesas exercised their right to he heard in an oral hearing, which took place on 20 November 2007.

In the Hearing, Elf Aquitaine put to the fore that the Commission prejudiced their rights of the defence by making allegations in relation to their control over Atofina in the SO without first hearing Elf Aquitaine. I rejected this complaint because pursuant to Article 27, para 1, Reg 1/2003 the Commission shall give undertakings the opportunity to be heard ‘before taking decisions’. Thus, the Right to be heard orally and also making statements in writing is intrinsically linked to the concrete allegations as expressed in the SO. It is not recognized in the phase of the investigation before the Commission has formulated its objections.

The main substantive issue discussed during the Hearing concerned, beyond the infringement period and the application of the 2006 Guidelines on Fines, the question of parental liability. Erikem Luxembourg, Elf Aquitaine and Uralita all contested the application of the principles of parental liability and advanced fundamentally different interpretations on the jurisprudence of the Courts than those of the Commission.

The draft final decision

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

In the light of the above, I consider that the right to be heard of all parties has been respected in the present case.