Final report of the hearing officer in Case COMP/36.915 - Deutsche Post AG (DPAG) (drawn up in accordance with 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(1))

(2001/C 358/04)

The draft decision gives rise to the following comments on the right to be heard:

1. The notification of the statement of objections of 25 May 2000 was delivered to DPAG on 31 May. The deadline for a written reply was initially set at three months to take into account the holiday period. The hearing officer then extended it by three weeks, from 1 to 22 September, because DPAG was able to see the Commission's file on the proceedings only on 26 June and obtained the full content of the file only on 17 July.

2. In a letter of 4 August 2000, DPAG asserted that, on the date of disclosure (26 June 2000), several important documents were not to be found in the files on the proceedings. This charge proved to be unsubstantiated, with one exception: a six-page fax from DPAG to the Commission dated 16 April 1999 had been kept separately and was placed in the file only after 26 June 2000. DPAG was informed of this on 17 July 2000.

3. In the aforementioned letter of 4 August 2000, DPAG also requested a separate hearing on procedural errors that the Commission, in DPAG's view, had committed during the inquiry. In particular, DPAG accused the Commission of not providing sufficient information on the merits of the case. It also criticised the fact that a memorandum from the British Post Office giving more detailed grounds for its complaint under Article 3(2) of Regulation no 17 was not immediately sent to it for comments.

The hearing officer rejected the request because DPAG had not made a conclusive case for a possible breach of the right to a hearing.

- In their written response to the statement of objections, during their oral hearing or in petitions after the oral hearing, the enterprises concerned can argue that there is inadequate information leading to an incorrect presentation or to a false legal assessment of the merits of the case. A separate hearing on the question of procedural errors which may have been committed in the investigation phase is thus not necessary in order to guarantee the full exercise of the rights of the defence and would not be in accord with the Commission's competition procedure or with considerations of economy of procedure.

- The right of the enterprises concerned to access the Commission's files concerning the proceedings arises only when the statement of objections is sent. In order to guarantee DPAG's right to be heard, therefore, it was sufficient for it to be able to see the British Post Office's statement of objections.

4. The oral hearing of DPAG and the complainant British Post Office, as well as of PTT Post BV and Center Parcs NV, who were also allowed to be present, took place at a joint meeting on 23 November 2000. A request by DPAG that PTT Post BV and Center Parcs NV should be excluded from the meeting was rejected by the hearing officer, though he did ask these two undertakings to confine their remarks to the subject matter of the procedure in Case COMP/36.915, in other words not to go into their own complaints againt DPAG. This request was complied with. DPAG was allowed a period in which to submit further written comments after the hearing.

5. It follows that DPAG was given a full hearing. The draft decision contains only objections to which DPAG has been able to respond.

Done at Brussels on 29 June 2001.

Helmuth Schröter

(1) OJ L 162, 19.6.2001, p. 21.