2001/462/EC,ECSC: Commission Decision of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings (Text with EEA relevance) (notified under document number C(2001) 1461)
Date: 2001-05-23
Institutions: European Commission
Subjects: application of EU law, appointment of staff, competition law, economic concentration, merger control, self-employed person

19.6.2001

EN

Official Journal of the European Communities

L 162/21

COMMISSION DECISION

of 23 May 2001

on the terms of reference of hearing officers in certain competition proceedings

(notified under document number C(2001) 1461)

(Text with EEA relevance)

(2001/462/EC, ECSC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

to contribute to the objectivity, transparency and effi-
ciency of those proceedings.

Having regard to the Treaty establishing the European
Community,

Having regard to the Treaty establishing the European Coal and
Steel Community,

Having regard to the Agreement on the European Economic
Area,

Having regard to the Rules of Procedure of the Commission (1),
and in particular Article 20 thereof,

Whereas:

(1)

(2)

(3)

The right of the parties concerned and of third parties to
be heard before a final decision affecting their interests is
taken is a fundamental principle of Community law.
That right is also set out in Council Regulation (EEC) No
4064/89 of 21 December 1989 on the control of
concentrations between undertakings (2), as last amended
by Regulation (EC) No 1310/97 (3), Commission Regula-
tion (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 (4) and Commission Regula-
tion (EC) No 447/98 of 1 March 1998 on the notifica-
tions, time limits and hearings provided for in Council
Regulation (EEC) No 4064/89 on the control of concen-
trations between undertakings (5).

The Commission must ensure that that right is guaran-
teed in its competition proceedings, having regard in
particular to the Charter of Fundamental Rights of the
European Union (6).

The conduct of administrative proceedings should there-
fore be entrusted to an independent person experienced
in competition matters who has the integrity necessary

(1) OJ L 308, 8.12.2000, p. 26.
(2) OJ L 395, 30.12.1989, p. 1 (corrected version in OJ L 257,

21.9.1990, p. 13).

(3) OJ L 180, 9.7.1997, p. 1.
(4) OJ L 354, 30.12.1998, p. 18.
(5) OJ L 61, 2.3.1998, p. 1.
(6) OJ C 364, 18.12.2000, p. 1.

(4)

(5)

(6)

(7)

(8)

The Commission created the post of hearing officer for
these purposes in 1982 and last laid down the terms of
reference for that post in Commission Decision 94/810/
ECSC, EC of 12 December 1994 on the terms of refer-
ence of hearing officers in competition procedures
before the Commission (7).

It is necessary to further strengthen the role of the
hearing officer and to adapt and consolidate those terms
of reference in the light of developments in competition
law.

should be

In order to ensure the independence of the hearing
administrative
officer, he
purposes,
the Commission with
special responsibility for competition. Transparency as
regards the appointment, termination of appointment
and transfer of hearing officers should be increased.

to the member of

attached,

for

The hearing officer should be appointed in accordance
with the rules laid down in the Staff Regulations of
Officials and the Conditions of Employment of Other
Servants of the European Communities. In accordance
with those rules, consideration may be given to candi-
dates who are not officials of the Commission.

reference of

The terms of
in
competition proceedings should be framed in such a
way as to safeguard the right to be heard throughout the
whole procedure.

the hearing officer

(9) When disclosing information on natural persons, partic-
ular attention should be paid to Regulation (EC) No
45/2001 of the European Parliament and of the Council
of 18 December 2000 on the protection of individuals
with regard to the processing of personal data by the
Community institutions and bodies and on the free
movement of such data (8).

(7) OJ L 330, 21.12.1994, p. 67.
(8) OJ L 8, 12.1.2001, p. 1.

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Official Journal of the European Communities

19.6.2001

(10)

This Decision should be without prejudice to the general
rules granting or excluding access to Commission docu-
ments.

2.

The provisions referred to in paragraph 1 are:

(a) the first paragraph of Article 36 of the ECSC Treaty;

(11) Decision 94/810/ECSC, EC should be repealed,

(b) Regulation (EC) No 2842/98;

(c) Regulation (EC) No 447/98.

HAS DECIDED AS FOLLOWS:

Article 5

Article 1

The Commission shall appoint one or more hearing officers
(hereinafter ‘the hearing officer’), who shall ensure that the
effective exercise of
to be heard is respected in
competition proceedings before the Commission under Articles
81 and 82 of the EC Treaty, Articles 65 and 66 of the ECSC
Treaty, and Regulation (EEC) No 4064/89.

the right

The hearing officer 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
officer shall seek to ensure in particular that, in the preparation
of draft Commission decisions, 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 2

Article 6

1.
The appointment of the hearing officer shall be published
in the Official Journal of the European Communities. Any interrup-
tion,
termination of appointment or transfer by whatever
procedure, shall be the subject of a reasoned decision of the
Commission. That decision shall be published in the Official
Journal of the European Communities.

The hearing officer shall be attached, for administrative
the Commission with special
‘the competent

2.
purposes,
responsibility for competition (hereinafter
member of the Commission’).

to the member of

3. Where the hearing officer is unable to act, the competent
member of the Commission, where appropriate after consulta-
tion 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 his duties, the hearing officer shall take
account of the need for effective application of the competition
rules in accordance with the Community legislation in force
and the principles laid down by the Court of Justice and the
Court of First Instance of the European Communities.

2.
The hearing officer shall be kept informed by the director
responsible for investigating the case (hereinafter ‘the director
responsible’) about the development of the procedure up to the
stage of the draft decsion to be submitted to the competent
member of the Commission.

3.
The hearing officer may present observations on any
matter arising out of any Commission competition proceeding
to the competent member of the Commission.

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

Decisions as to whether third parties are to be heard shall

2.
be taken after consulting the director responsible.

3. Where it is found that an application has not shown a
sufficient interest to be heard, he shall be informed in writing
of the reasons for such finding. A time limit shall be fixed
within which he 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 Commission
has addressed to him.

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 Commission's view
there are insufficient grounds for finding an infringement
and inviting him to submit any further written comments.

Decisions as to whether applicants are to be heard orally

3.
shall be taken after consulting the director responsible.

Article 8

Article 4

1.
The hearing officer shall organise and conduct the hear-
ings provided for in the provisions implementing Articles 81
and 82 of the EC Treaty, Articles 65 and 66 of the ECSC Treaty
and Regulation (EEC) No 4064/89, in accordance with Articles
5 to 13 of this Decision.

1. Where a person, an undertaing or an association of
persons or undertakings has received one or more of the letters
listed in Article 7(2) and has reason to believe that
the
Commission 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.

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The reasoned decision on any such request shall be
2.
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 consti-
tute a business secret of an undertaking, it 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 Official
Journal of the European Communities.

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) 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

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

For this purpose, after consulting the director responsible, the
hearing officer may hold a meeting with the parties invited to
the hearing and, where appropriate, the Commission staff, in
order to prepare for the hearing itself.

The hearing officer 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

After consulting the director responsible,

1.
the hearing
officer shall determine the date, the duration and the place of
the hearing. Where a postponement is requested, the hearing
officer shall decide whether or not to allow it.

The hearing officer shall be fully responsible for the

2.
conduct of the hearing.

3.
The hearing officer 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.

in view of the need to ensure the
4. Where appropriate,
right to be heard, the hearing officer may, after consulting the
Director responsible, afford persons, undertakings, and associa-
tions of persons or undertakings the opportunity of submitting
further written comments after the oral hearing. The hearing
officer shall fix a date by which such submissions may be
made. The Commission shall not be obliged to take into
account written comments received after that date.

Article 13

The hearing officer shall report to the competent member
1.
of the Commission on the hearing and the conclusions he
draws 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-General for
Competition and to the director responsible.

2.
In addition to the report referred to in paragraph 1, the
hearing officer 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 officer 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 Commission in application of
the provisions referred to in Article 1. This shall cover in
particular the selection of respondents and the methodology
used.

Article 15

The hearing officer shall, on the basis of the draft decision to
be submitted to the Advisory Committee in the case in ques-
tion, prepare a final report in writing on the respect of the
right to be heard, as referred to in Article 13(1). 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.

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The final report shall be submitted to the competent member
of the Commission, the Director-General for Competition and
the director responsible.
It shall be communicated to the
competent authorities of the Member States and, in accordance
with the provisions on cooperation laid down in Protocol 23
and Protocol 24 of the EEA Agreement, to the EFTA Surveil-
lance Authority.

The Commission shall communicate the hearing officer's
3.
final report, together with the decision, to the addressees of the
decision. It shall publish the hearing officer's final report in the
Official Journal of the European Communities, together with the
decision, having regard to the legitimate interest of undertak-
ings in the protection of their business secrets.

Article 16

Decision 94/810/ECSC, EC is repealed.

Article 17

1.
The hearing officer's final report shall be attached to the
draft decision submitted to the Commission, in order to ensure
that, when it reaches a decision on an individual case, the
Commission is fully apprised 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 officer in
the light of any amendments to the draft decision up to the
time the decision is adopted by the Commission.

Procedural
continue to have effect.

steps already taken under

that Decision shall

Done at Brussels, 23 May 2001.

For the Commission

Mario MONTI

Member of the Commission