Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles 85 and 86 of the EC Treaty (Text with EEA relevance)
Date: 1998-12-22
Institutions: European Commission
Subjects: administrative procedure, advisory committee (EU), competition law, competition policy, disclosure of information

L 354/18

EN

Official Journal of the European Communities

30. 12. 98

COMMISSION REGULATION (EC) No 2842/98

of 22 December 1998

on the hearing of parties in certain proceedings under Articles 85 and 86 of the
EC Treaty

(Text with EEA relevance)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to the Agreement on the European
Economic Area,

Having regard to Council Regulation No 17 of 6 February
1962, First Regulation implementing Articles 85 and 86
of the Treaty (1), as last amended by the Act of Accession
of Austria, Finland and Sweden, and in particular Article
24 thereof,

Having regard to Council Regulation (EEC) No 1017/68
of 19 July 1968 applying rules of competition to transport
by rail, road and inland waterway (2), as last amended by
the Act of Accession of Austria, Finland and Sweden, and
in particular Article 29 thereof,

Having regard to Council Regulation (EEC) No 4056/86
of 22 December 1986 laying down detailed rules for the
application of Articles 85 and 86 of the Treaty to mari-
time transport (3), as last amended by the Act of Accession
of Austria, Finland and Sweden, and in particular Article
26 thereof,

Having regard to Council Regulation (EEC) No 3975/87
of 14 December 1987 laying down the procedure for the
application of the rules on competition to undertakings in
the air transport sector (4), as last amended by Regulation
(EEC) No 2410/92 (5), and in particular Article 19 thereof,

Having consulted the appropriate Advisory Committees
on Restrictive Practices and Dominant Positions,

(1) Whereas a great deal of experience has been
acquired in the application of Commission Regula-
tion No 99/63/EEC of 25 July 1963 on the hear-
ings provided for in Article 19(1) and (2) of Regula-
tion No 17 (6), Commission Regulation (EEC) No
1630/69 of 8 August 1969 on the hearings provided
for in Article 26(1) and (2) of Council Regulation
(EEC) No 1017/68 of 19 July 1968 (7), Section II of
Commission Regulation (EEC) No 4260/88 of 16

(1) OJ 13, 21. 2. 1962, p. 204/62.
(2) OJ L 175, 23. 7. 1968, p. 1.
(3) OJ L 378, 31. 12. 1986, p. 4.
(4) OJ L 374, 31. 12. 1987, p. 1.
(5) OJ L 240, 24. 8. 1992, p. 18.
(6) OJ 127, 20. 8. 1963, p. 2268/63.
(7) OJ L 209, 21. 8. 1969, p. 11.

on

the

1988

December
communications,
complaints and applications and the hearings
provided for
in Council Regulation (EEC) No
4056/86 laying down detailed rules for the applica-
tion of Articles 85 and 86 of the Treaty to maritime
transport (8), as last amended by the Act of Acces-
sion of Austria, Finland and Sweden, and Section II
of Commission Regulation (EEC) No 4261/88 of
16 December 1988 on the complaints, applications
and hearings provided for in Council Regulation
(EEC) No 3975/87 laying down the procedure for
the application of
the rules on competition to
undertakings in the air transport sector (9);

(2) Whereas that experience has revealed the need to
improve certain procedural aspects of those Regula-
tions; whereas it
is appropriate for the sake of
clarity to adopt a single Regulation on the various
hearing procedures laid down by Regulation No 17,
Regulation (EEC) No 1017/68, Regulation (EEC)
No 4056/86 and Regulation (EEC) No 3975/87;
whereas, accordingly, Regulations No 99/63/EEC
and (EEC) No 1630/69 should be replaced, and
Sections II of Regulations (EEC) No 4260/88 and
(EEC) No 4261/88 should be deleted and replaced;

(3) Whereas the provisions relating to the Commis-
sion’s procedure under Decision 94/810/ECSC,EC
of 12 December 1994 on the terms of reference of
hearing officers in competition procedures before
the Commission (10) should be framed in such a
way as to safeguard fully the right to be heard and
the rights of defence; whereas for these purposes,
the Commission should distinguish between the
respective rights to be heard of the parties to which
the Commission has addressed objections, of the
applicants and complainants, and of other third
parties;

(4) Whereas in accordance with the principle of the
rights of defence, the parties to which the Commis-
sion has addressed objections should be given the

(8) OJ L 376, 31. 12. 1988, p. 1.
(9) OJ L 376, 31. 12. 1988, p. 10.
(10) OJ L 330, 21. 12. 1994, p. 67.

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Official Journal of the European Communities

L 354/19

opportunity to submit their comments on all the
objections which the Commission proposes to take
into account in its decisions;

lation by defining the date by which the submis-
sion must reach the Commission;

(5) Whereas the applicants and complainants should
be granted the opportunity of expressing their
views, if the Commission considers that there are
insufficient grounds for granting the application or
acting on the complaint; whereas the applicant or
complainant should be provided with a copy of the
non-confidential version of
the objections and
should be permitted to make known its views in
writing where the Commission raises objections;

(6) Whereas other

third parties having sufficient
interest should also be given the opportunity of
expressing their views in writing where they make
a written application to do so;

(7) Whereas the various parties entitled to submit
comments should do so in writing, both in their
own interest and in the interests of sound adminis-
tration, without prejudice to the possibility of an
oral hearing where appropriate to supplement the
written procedure;

(8) Whereas it

is necessary to define the rights of
persons who are to be heard and on what condi-
tions they may be represented or assisted;

(9) Whereas

the Commission should continue to
respect the legitimate interest of undertakings in
the protection of their business secrets and other
confidential information;

(10) Whereas compatibility should be ensured between
the Commission’s current administrative practices
and the case-law of the Court of Justice and the
Court of First Instance of the European Communi-
ties in accordance with the Commission notice on
the internal
rules of procedure for processing
requests for access to the file in cases pursuant to
Articles 85 and 86 of the Treaty, Articles 65 and 66
of the ECSC Treaty and Council Regulation (EEC)
No 4064/89 (1);

(11) Whereas to facilitate the proper conduct of the
hearing it is appropriate to allow statements made
by each person at a hearing to be recorded;

(12) Whereas in the interest of

is
appropriate to set the time limit for the submis-
sions by the various persons pursuant to this Regu-

legal certainty,

it

(1) OJ C 23, 23. 1. 1997, p. 3.

(13) Whereas

the appropriate Advisory Committee
under Article 10(3) of Regulation No 17, Article
16(3) of Regulation (EEC) No 1017/68, Article 15(3)
of Regulation (EEC) No 4056/86 or Article 8(3) of
Regulation (EEC) No 3975/87 must deliver its
opinion on the basis of a preliminary draft
decision; whereas it should therefore be consulted
on a case after the inquiry in that case has been
completed; whereas such consultation should not
prevent
the Commission from reopening an
inquiry if need be,

HAS ADOPTED THIS REGULATION:

CHAPTER I

Scope

Article 1

This Regulation shall apply to the hearing of parties
under Article 19(1) and (2) of Regulation No 17, Article
26(1) and (2) of Regulation (EEC) No 1017/68, Article
23(1) and (2) of Regulation (EEC) No 4056/86 and Article
16(1) and (2) of Regulation (EEC) No 3975/87.

CHAPTER II

Hearing of parties to which the Commission has
addressed objections

Article 2

1.
The Commission shall hear the parties to which it
has addressed objections before consulting the appro-
priate Advisory Committee under Article 10(3) of Regula-
tion No 17, Article 16(3) of Regulation (EEC) No 1017/
68, Article 15(3) of Regulation (EEC) No 4056/86 or
Article 8(3) of Regulation (EEC) No 3975/87.

2.
The Commission shall in its decisions deal only with
objections in respect of which the parties have been
afforded the opportunity of making their views known.

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Official Journal of the European Communities

30. 12. 98

Article 3

CHAPTER III

1.
The Commission shall inform the parties in writing
of the objections raised against them. The objections shall
be notified to each of them or to a duly appointed agent.

of

in the Official Journal

2.
The Commission may inform the parties by giving
the European
notice
Communities, if from the circumstances of the case this
appears appropriate, in particular where notice is to be
given to a number of undertakings but no joint agent has
been appointed. The notice shall have regard to the legiti-
mate interests of the undertakings in the protection of
their business secrets and other confidential information.

3. A fine or a periodic penalty payment may be
imposed on a party only if the objections have been
notified in the manner provided for in paragraph 1.

The Commission shall, when giving notice of objec-
4.
tions, set a date by which the parties may inform it in
writing of their views.

The Commission shall set a date by which the
5.
parties may indicate any parts of the objections which in
their view contain business secrets or other confidential
material. If they do not do so by that date, the Commis-
sion may assume that the objections do not contain such
information.

Article 4

Parties which wish to make known their views on
1.
the objections raised against them shall do so in writing
and by the date referred to in Article 3(4). The Commis-
sion shall not be obliged to take into account written
comments received after that date.

2.
The parties may in their written comments set out
all matters relevant to their defence. They may attach any
relevant documents as proof of the facts set out and may
also propose that the Commission hear persons who may
corroborate those facts.

Article 5

The Commission shall afford to parties against which
objections have been raised the opportunity to develop
their arguments at an oral hearing, if they so request in
their written comments.

Hearing of applicants and complainants

Article 6

Where the Commission, having received an application
made under Article 3(2) of Regulation No 17 or a
complaint made under Article 10 of Regulation (EEC) No
1017/68, Article 10 of Regulation (EEC) No 4056/86 or
Article 3(1) of Regulation (EEC) No 3975/87, considers
that on the basis of the information in its possession there
are insufficient grounds for granting the application or
acting on the complaint, it shall inform the applicant or
complainant of its reasons and set a date by which the
applicant or complainant may make known its views in
writing.

Article 7

Where the Commission raises objections relating to an
issue in respect of which it has received an application on
a complaint as referred to in Article 6, it shall provide an
applicant or complainant with a copy of the non-con-
fidential version of the objections and set a date by which
the applicant or complainant may make known its views
in writing.

Article 8

and complainants

The Commission may, where appropriate, afford to appli-
cants
the opportunity of orally
expressing their views, if they so request in their written
comments.

CHAPTER IV

Hearing of other third parties

Article 9

1.
If parties other than those referred to in Chapters II
and III apply to be heard and show a sufficient interest,
inform them in writing of the
the Commission shall
nature and subject matter of the procedure and shall set a
date by which they may make known their views in
writing.

2.
invite
The Commission may, where appropriate,
parties referred to in paragraph 1 to develop their argu-
ments at the oral hearing of the parties against which
objections have been raised, if they so request in their
written comments.

3.
The Commission may afford to any other third
parties the opportunity of orally expressing their views.

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CHAPTER V

Article 13

General provisions

Article 10

Hearings shall be conducted by the Hearing Officer.

Article 11

1.
The Commission shall invite the persons to be heard
to attend the oral hearing on such date as it shall appoint.

2.
The Commission shall invite the competent author-
ities of the Member States to take part in the oral hearing.

Article 12

1.
Persons invited to attend shall either appear in
person or be represented by legal representatives or by
representatives authorised by their constitution as appro-
priate. Undertakings and associations of undertakings may
be represented by a duly authorised agent appointed from
among their permanent staff.

Persons heard by the Commission may be assisted by
2.
their legal advisers or other qualified persons admitted by
the Hearing Officer.

3. Oral hearings shall not be public. Each person shall
be heard separately or in the presence of other persons
invited to attend. In the latter case, regard shall be had to
the legitimate interest of the undertakings in the protec-
tion of their business secrets and other confidential infor-
mation.

4.
The statements made by each person heard shall be
recorded on tape. The recording shall be made available
to such persons on request, by means of a copy from
which business secrets and other confidential information
shall be deleted.

Information,

including documents,

1.
shall not be
communicated or made accessible in so far as it contains
business secrets of any party,
including the parties to
which the Commission has addressed objections, appli-
cants and complainants and other third parties, or other
confidential information or where internal documents of
the authorities are concerned. The Commission shall
make appropriate arrangements for allowing access to the
file, taking due account of the need to protect business
secrets, internal Commission documents and other con-
fidential information.

2. Any party which makes known its views under the
provisions of this Regulation shall clearly identify any
material which it considers to be confidential, giving
reasons, and provide a separate non-confidential version
by the date set by the Commission. If it does not do so by
the
the set date,
submission does not contain such material.

the Commission may assume that

Article 14

In setting the dates provided for in Articles 3(4), 6, 7 and
9(1), the Commission shall have regard both to the time
required for preparation of the submission and to the
urgency of the case. The time allowed in each case shall
be at least two weeks; it may be extended.

CHAPTER VI

Final provisions

Article 15

1. Regulations No 99/63/EEC and (EEC) No 1630/69
are repealed.

Sections II of Regulations (EEC) No 4260/88 and

2.
(EEC) No 4261/88 are deleted.

Article 16

This Regulation shall enter into force on 1 February 1999.

This Regulation shall be binding in its entirety and directly applicable in all Member
States.

Done at Brussels, 22 December 1998.

For the Commission

Karel VAN MIERT

Member of the Commission