EFTA Surveillance Authority Decision

No 177/02/COL

of 30 October 2002

on the terms of reference of Hearing Officers in certain competition proceedings

THE EFTA SURVEILLANCE AUTHORITY,

Having regard to the Agreement on the European Economic Area(1), in particular Article 55 thereto,

Having regard to the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice(2), in particular Articles 13 and 14 thereof,

Having consulted the EFTA States,

Having consulted the Commission of the European Communities,

Whereas the right of the parties concerned in competition matters, and of third parties, to be heard before a final decision affecting their interests is taken, is a fundamental principle of EEA law;

Whereas that right is set out in Chapters IV, XIII and XIV of Protocol 4 to the Surveillance and Court Agreement;

Whereas the EFTA Surveillance Authority must ensure that that right is guaranteed in its competition proceedings;

Whereas conduct of administrative proceedings should therefore be entrusted to an independent person experienced in competition matters who has the integrity necessary to contribute to the objectivity, transparency and efficiency of those proceedings;

Whereas in order to ensure the independence of the Hearing Officers, that person should be attached, for administrative purposes, to the College Member responsible for Competition;

Whereas the terms of reference of the Hearing Officers in competition proceedings should be framed in such a way as to safeguard the right of persons to be heard throughout the whole procedure;

Whereas this Decision should be without prejudice to the general rules granting or excluding access to documents in the possession of the EFTA Surveillance Authority,

HAS ADOPTED THIS DECISION:

I

Article 1

The EFTA Surveillance Authority shall, when necessary for the conduct of its proceedings in competition cases, appoint one or more Hearing Officers (hereinafter "the Hearing Officers"), who shall ensure that the effective exercise of the right to be heard is respected in competition proceedings before the Authority under Articles 53, 54 and 57 of the EEA Agreement(3).

Article 2

1. Any interruption, termination of appointment or transfer of a Hearing Officer by whatever procedure, shall be the subject of a reasoned decision of the College.

2. In the performance of their duties, Hearing Officers shall act independently and shall be attached, for administrative purposes to the College Member responsible for Competition (hereinafter "the responsible College Member").

3. Where a Hearing Officer is unable to act, the responsible College Member, where appropriate after consultation of the Hearing Officer, shall designate another official, who is not involved in the case in question, to carry out the Hearing Officer's duties.

Article 3

1. In performing their duties, Hearing Officers shall take account of the need for effective application of the competition rules in accordance with the EEA legislation in force and the principles laid down by the EFTA Court(4) and the Court of Justice and Court of First Instance of the European Communities.

2. The Hearing Officers shall be kept informed by the Director responsible for Competition about the development of the procedure up to the stage of the draft decision to be submitted to the responsible College Member.

3. The Hearing Officers may present observations on any matter arising out of any competition proceedings initiated by the EFTA Surveillance Authority to the responsible College Member.

Article 4

1. The Hearing Officers shall organise and conduct the hearings provided for in the provisions implementing Articles 53, 54 and 57 of the EEA Agreement, in accordance with Articles 5 to 13 of this Decision.

2. The provisions referred to in paragraph 1 are:

(a) Chapter IV of Protocol 4 to the Surveillance and Court Agreement;

(b) Chapter XIV of Protocol 4 to the Surveillance and Court Agreement.

Article 5

The Hearing Officers shall ensure that the hearing is properly conducted and contributes to the objectivity of the hearing itself and of any decision taken subsequently. The Hearing Officers shall seek to ensure, in particular that, in the preparation of draft decisions by the EFTA Surveillance Authority, due account is taken of all the relevant facts, whether favourable or unfavourable to the parties concerned, including the factual elements related to the gravity of any infringement.

Article 6

1. Applications to be heard from third parties, be they persons, undertakings or associations of persons or undertakings, shall be submitted in writing, together with a written statement explaining the applicant's interest in the outcome of the procedure.

2. Decisions as to whether third parties are to be heard shall be taken after consulting the Director responsible for Competition.

3. Where it is found that an applicant has not shown a sufficient interest to be heard, that person shall be informed in writing of the reasons for such a finding. A time limit shall be fixed within which that person may submit any further written comments.

Article 7

1. Applications to be heard orally shall be made in the applicant's written comments on letters which the EFTA Surveillance Authority has addressed to that person.

2. The letters referred to in paragraph 1 are those:

(a) communicating a statement of objections;

(b) inviting the written comments of a third party having shown sufficient interest to be heard;

(c) informing a complainant that, in the EFTA Surveillance Authority's view, there are insufficient grounds for finding an infringement and inviting that complainant to submit any further written comments.

3. Decisions as to whether applicants are to be heard orally shall be taken after consulting the Director responsible for Competition.

Article 8

1. Where a person, an undertaking or an association of persons or undertakings has received one or more of the letters listed in Article 7(2) of this Decision and has reason to believe that the EFTA Surveillance Authority has in its possession documents which have not been disclosed to it and that those documents are necessary for the proper exercise of the right to be heard, access to those documents may be sought by means of a reasoned request.

2. The reasoned decision on any such request shall be communicated to the person, undertaking or association that made the request and to any other person, undertaking or association concerned by the procedure.

Article 9

Where it is intended to disclose information which may constitute a business secret of an undertaking, that undertaking shall be informed in writing of this intention and the reasons for it. A time limit shall be fixed within which the undertaking concerned may submit any written comments.

Where the undertaking concerned objects to the disclosure of the information, but it is found that the information is not protected and may therefore be disclosed, that finding shall be stated in a reasoned decision which shall be notified to the undertaking concerned. The decision shall specify the date after which the information will be disclosed. This date shall not be less than one week from the date of notification.

The first and second paragraphs shall apply mutatis mutandis to the disclosure of information by publication in the EEA section of the Official Journal of the European Union and the EEA supplement to the Official Journal of the European Union.

Article 10

Where a person, undertaking or association of persons or undertakings considers that the time limit imposed for its reply to a letter referred to in Article 7(2) of this Decision is too short, it may, within the original time limit, seek an extension of that time limit by means of a reasoned request. The applicant shall be informed in writing whether the request has been granted.

Article 11

Where appropriate, in view of the need to ensure that the hearing is properly prepared, and particularly that questions of fact are clarified as far as possible, the Hearing Officers may, after consulting the Director responsible for Competition, supply to the parties invited to the hearing a list of the questions on which the Hearing Officers wish them to make known their views in advance.

For this purpose, after consulting the Director responsible for Competition, the Hearing Officers may hold a meeting with the parties invited to the hearing and, where appropriate, the staff of the EFTA Surveillance Authority, in order to prepare for the hearing itself.

The Hearing Officers may also ask for prior written notification of the essential contents of the intended statement of persons whom the parties invited to the hearing have proposed for hearing.

Article 12

1. After consulting the Director responsible for Competition, the Hearing Officers shall determine the date, the duration and the place of the hearing. Where a postponement is requested, the Hearing Officers shall decide whether or not to allow it.

2. The Hearing Officers shall be fully responsible for the conduct of the hearing.

3. The Hearing Officers shall decide whether fresh documents should be admitted during the hearing, what persons should be heard on behalf of a party and whether the persons concerned should be heard separately or in the presence of other persons attending the hearing.

4. Where appropriate, in view of the need to ensure the right to be heard, the Hearing Officers may, after consulting the Director responsible for Competition, afford persons, undertakings, and associations of persons or undertakings the opportunity of submitting further written comments after the oral hearing. The Hearing Officers shall fix a date by which such submissions may be made. The EFTA Surveillance Authority shall not be obliged to take into account written comments received after that date.

Article 13

1. The Hearing Officers shall report to the responsible College Member on the hearing and the conclusions the Hearing Officers have drawn from it, with regard to the respect of the right to be heard. The observations in this report shall concern procedural issues, including disclosure of documents and access to the file, time limits for replying to the statement of objections and the proper conduct of the oral hearing.

A copy of the report shall be given to the Director responsible for Competition.

2. In addition to the report referred to in paragraph 1, the Hearing Officers may make observations on the further progress of the proceedings. Such observations may relate, among other things, to the need for further information, the withdrawal of certain objections, or the formulation of further objections.

Article 14

Where appropriate, the Hearing Officers may report on the objectivity of any enquiry conducted in order to assess the competition impact of commitments proposed in relation to any proceeding initiated by the EFTA Surveillance Authority in application of the provisions referred to in Article 1 of this Decision. This shall cover in particular the selection of respondents and the methodology used.

Article 15

The Hearing Officers shall, on the basis of the draft decision to be submitted to the Advisory Committee established in furtherance to Articles 53, 54 and 57 of the EEA Agreement, in the case in question prepare a final report in writing on the respect of the right to be heard, as referred to in Article 13(1) of this Decision. This report will also 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, and, where appropriate, the objectivity of any enquiry within the meaning of Article 14 of this Decision.

The final report shall be submitted to the responsible College Member and the Director responsible for Competition. It shall be communicated to the competent authorities of the EFTA States and, in accordance with the provisions on cooperation laid down in Protocol 23 and Protocol 24 of the EEA Agreement, to the Commission of the European Communities.

Article 16

1. The Hearing Officers' final report shall be attached to the draft decision submitted to the College, in order to ensure that, when it reaches a decision on an individual case, the College is fully appraised of all relevant information as regards the course of the procedure and respect of the right to be heard.

2. The final report may be modified by the Hearing Officers in the light of any amendments to the draft decision up to the time the decision is adopted by the College.

3. The EFTA Surveillance Authority shall communicate the Hearing Officers' final report, together with the decision, to the addressees of the decision. It shall publish the Hearing Officers' final report in the EEA Section of the Official Journal of the European Union and the EEA Supplement to the Official Journal of the European Union, together with the decision, having regard to the legitimate interest of undertakings in the protection of their business secrets.

II

This decision shall be authentic in the English language and shall be published in the EEA Section of the Official Journal of the European Union and the EEA Supplement to the Official Journal of the European Union.

III

The EFTA States shall be informed by means of a copy of the Decision.

IV

The Commission of the European Communities shall be informed by means of a copy of the Decision.

Done at Brussels, 30 October 2002.

For the EFTA Surveillance Authority

The President

Einar M. Bull

(1) Hereinafter referred to as the EEA Agreement.

(2) Hereinafter referred to as the Surveillance and Court Agreement.

(3) The competence to handle individual cases falling under Articles 53 and 54 of the EEA Agreement is divided between the EFTA Surveillance Authority and the Commission of the European Communities according to the rules laid down in Article 56 of the EEA Agreement. Only one authority is competent to handle any given case.

(4) Article 6 of the EEA Agreement provides that, "without prejudice to future developments of case law, the provisions of this Agreement, in so far as they are identical in substance to corresponding rules of the Treaty establishing the European Community and the Treaty establishing the European Coal and Steel Community and to acts adopted in application of these two treaties, shall in their implementation and application, be interpreted in conformity with the relevant rulings of the Court of Justice of the European Communities given prior to the date of signature of this Agreement". As regards relevant rulings given after the date of signature of the EEA Agreement, it follows from Article 3(2) of the Surveillance and Court Agreement that the EFTA Surveillance Authority and the EFTA Court shall pay due account to the principles laid down by these.