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)
Date: 2001-06-29
Institutions: European Commission
Subjects: Germany, application of EU law, audit, competition law, postal service

15.12.2001

EN

Official Journal of the European Communities

C 358/5

Final report of the hearing officer in Case COMP/36.915 (cid:151) 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
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.

the holiday period. The hearing officer

2. In a letter of 4 August 2000, DPAG asserted that, on the
important
date of disclosure (26 June 2000),
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.

several

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.

is inadequate information leading to an incorrect pres-
entation 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.

(cid:151) 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.

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

5. It follows that DPAG was given a full hearing. The draft
to which DPAG has

decision contains only objections
been able to respond.

(cid:151) 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

Done at Brussels on 29 June 2001.

Helmuth SCHR(cid:214)TER

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