Final report of the Hearing Officer in case COMP/M.2876 - NewsCorp/Telepiù

(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 102/07)

(Text with EEA relevance)

(Commission Decision 2004/311/EC - OJ L 110, 16.4.2004)

The draft decision submitted to the Commission gives rise to the following observations regarding the right to be heard:

I. Access to the file

As regards access to the file, The News Corporation Limited, Australia (hereinafter "Newscorp") wrote to me requesting further access and in particular access to a number of documents classified as confidential in the Commission's file.

Having assessed this request Newscorp received a detailed reply explaining the nature and origin of all the submissions referred to. Some documents contained business secrets or were internal documents of the Commission and could not be disclosed as such. Other documents had been classified as confidential but a non-confidential version of those documents was transmitted to Newscorp.

Newscorp received a non-confidential version of all the documents except for two documents submitted by a third party content of which could not be effectively summarised in such a way that it would remain understandable without revealing the name of the company concerned.

Since this company had requested confidentiality for fear of retaliatory measures, and the documents in question are neither inculpatory nor exculpatory, they were not handed over to Newscorp.

II. Oral Hearing

The notifying party, Newscorp, was entitled to present its arguments orally at a formal hearing under Article 14 (1) and (2) of Regulation No 447/98 which took place on 5 and 6 March 2003.

This proposed concentration attracted the attention of many interested third parties (fifteen) that had participated to the investigation procedure and requested to participate in the Oral Hearing.

Two of them were heard individually "in camera" because they feared retaliatory measures.

III. Supplementary Statement of Objections and time limits for replying

In this particular case, the objections of the Commission were transmitted to the parties in two separate statements. The first statement was delivered on Monday 17 February and the second on Monday 24 February. The Commission fixed the same date for the parties' replies, that is, Monday 3 March.

Newscorp specifically mentioned in its reply that the short deadline constituted a violation of its rights of defence.

Neither Council Regulation No 4064/89 nor Commission Regulation 447/98 set a specific period for the undertakings to reply to the Statement of Objections. In contrast Regulation No 2842/98 on the hearing of parties in certain proceedings under Articles 85 and 86 (now 81 and 82) of the EC Treaty, specifically provides in Article 14 that the time allowed for the undertakings to reply shall be at least two weeks.

The only specific requirement imposed on the Commission can be found in Article 21 of Regulation (EC) No 447/98, according to which the Commission "shall have regard to the time required for preparation of statements and the urgency of the case".

It is established case-law that "the need of speed characterises the general scheme of Regulation No 4064/89." (T-290194, Kayserberg/Commission, paragraph 113; T-310101, Schneider Electric/Commission, paragraph 100; T-221/95, Endemol Entertaiment Holding BV/Commission, paragraph 84).

Nevertheless, Article 21 of Regulation (EC) No 447/98 provides for a "rule of reason" which has to be applied in such a way that the investigation is properly conducted and the rights of defence of the companies are respected.

The practice of the Connnission has been in most cases and wherever possible to allow the companies two weeks to reply to the Statement of Objections including those which may have been very long, complicated, or raised issues which were not always specifically known to the parties in advance.

This period of time can nevertheless be adapted to take account of "the need of speed which characterises the general scheme of Regulation (EC) No 4064/89" and also the necessity to carry out a proper investigation of the case.

A fundamental aspect of the necessity to respect the right to be heard of the parties is that the Commission's final decision can only deal with the objections in respect of which the parties have been afforded the opportunity of making known their views.

The preliminary view of the Commission in the second Statement of Objections was that the fact that Telecom ltalia would hold a significant stake in the new entity and a seat on the Board of Directors would have an influence on the case. Nevertheless, this issue had been discussed with the parties over a number of months already, had been the subject of a number of meetings, and had been specifically referred to the Article 6(1)c decision taken at the end of the first month of investigation.

Therefore it is not the case that Newscorp would have been discovering too late a new and/or complex issue.

Under the specific circumstances of this case I therefore consider that the Commission has fulfilled its obligation of article 21 of Regulation (EC) No 447/98 in setting the time limit to reply to the Statement of Objections at the date of 3 March 2003.

Eventually, the objection mentioned in the second Statement of Objections is not retained in the draft decision, following the explanations given by Newscorp in their written reply and at the oral hearing. The final decision contains only objections that were known to Newscorp.

I therefore conclude that the notifying party, Newscorp, and the third parties, were able to exercise their right to be heard in this case in accordance with the rules.

Done in Brussels, 21 March 2003.

Serge Durande