Final report of the Hearing Officer in case COMP/37.919 — Bank charges for the exchange of eurozone currencies — Germany (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)) (Text with EEA relevance)
Date: 2001-12-07
Institutions: European Commission
Subjects: Germany, audit, bank, bank charges, euro area, exchange transaction, foreign currency, report, rights of the defence

C 14/2

EN

Official Journal of the European Communities

21.1.2003

Final report of the Hearing Officer in case COMP/37.919 — Bank charges for the exchange of
eurozone currencies — Germany

(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))

(2003/C 14/02)

(Text with EEA relevance)

The draft Decision gives rise to the following observations
regarding the right to be heard:

1. On 1 August 2000 the Commission initiated formal
proceedings with a view to find infringements of Article
81 EC, committed by banks on the German market for the
exchange of eurozone currencies. By letters dated 3 August
and 10 August 2000, a Statement of Objections (S/O) was
sent to the following banks:

1. Bayerische Hypo- und Vereinsbank AG

2. Bayerische Landesbank Girozentrale

3. BfG Bank AG

4. Commerzbank AG

5. Deutsche Genossenschaftsbank AG

6. Deutsche Verkehrsbank AG

7. Dresdner Bank AG

8. Hamburgische Landesbank Girozentrale

9. Landesbank Hessen-Thüringen Girozentrale

10. Reisebank AG

11. Vereins- und Westbank AG

12. Westdeutsche Landesbank Girozentrale

13. Fortis NV

14. Fortis Services Nederland NV

15. Fortis Bank (Holding) Nederland NV

16. GWK Bank NV

17. De Grenswisselkantoren NV

No complainant or other third party participated in the
proceedings.

2. Following requests from the parties, the Hearing Officer
extended the initial deadline for responses to the S/O from
3 to 27 November 2000, thereby taking into account that
the CD-ROM with the contents of the case file had been
received by the parties only by mid September 2000. All
of the parties, with the exception of Deutsche Genossen-
schaftsbank, replied in writing to the S/O and requested an
oral hearing.

3. In their written submissions

the parties moreover
requested access to all parallel files relating to suspected
infringements of Article 81 EC in other Member State
markets for the exchange of eurozone currencies, and to
the Dutch file in particular.

file

that

(a) To justify their request for general access to parallel
files,
the
the banks relied heavily on the fact
investigations in the aforementioned banking cases
had initially been carried out under one and the
same
original
and
community-wide case COMP/37.391 had thereafter
been split up artificially into several separate national
cases. The parties should therefore be afforded the
opportunity to examine all
files as to
whether they contained documents with relevance to
the German banking case.

the national

number,

that

the

(b) The reasoning of the request for access to the Dutch
banking case file was based mainly on the fact that
most of the evidence used by the Commission against
the German banks had been found during investi-
gations in the premises of the GWK bank and had
become part of
the Dutch file. The documents in
them
question were referred to in and copies of
annexed to the S/O addressed to the German banks.
The latter suspected that the Dutch file might also
contain disculpative
information and claimed the
right to check whether the Commission had supplied
them with any documents which could turn out to be
useful for their defence.

4. Following the request mentioned above under (b)

the
Hearing Officer inspected the Dutch file and extracted
from it all documents which related directly or indirectly
to the German banking case. These documents were trans-
mitted to each of the addressees of the S/O by letter of 12
January 2001. The undertakings concerned were invited
either to submit comments in writing before or after the
oral hearing or to make known their views orally during
the hearing. The Hearing Officer reserved his final position
on both requests for a later stage of the procedure.

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Official Journal of the European Communities

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5. By letter of 6 August 2001, addressed to all of the banks
cocnerned, the requests referred to above under 3(a) and
(b) were rejected. The Hearing Officer took the view that
the parties were not entitled to inspect the files on parallel
banking cases, firstly because the Commission, by dividing
up the documentary evidence received during the investi-
gation and by opening several proceedings, each of which
related to a suspected national cartel, had made correct use
its organisational powers and secondly because the
of
right of access concerned on documents that
parties'
were directly or
indirectly linked to the objections
formally stated by the Commission. With the exception
of the Dutch file, none of the files on parallel banking
cases contained such documents.

furthermore considered that

the
The Hearing Officer
parties had been supplied with all
the documentary
evidence whether culpatory or disculpatory in nature,
which was contained in the Dutch file and related to the
suspected cartel on the German market for the relevant
banking services. He denied the German banks the right to
claim access to the other parts of the Dutch file, because
they related exclusively to suspected arrangements made
by Dutch banking institutions for their national market.

6. One party, Vereins- und Westbank AG, by letter of 22
January 2001, had claimed access to those documents
which were added to the German banking case file after
19 September 2000 the day of receipt of the CD-ROM
containing the documents filed before that date. They
argued that the new information was needed in order to
prepare the oral hearing. By letter of 23 January 2001 the
Hearing Officer
the requested documents
consisted of responses by other parties to the S/O and
an exchange of letters with some of the parties on the
further organisation of proceedings, both categories of
documents not being accessible.

replied that

taking notice of all

the parties maintained that

7. In the oral hearing which took place on 1 and 2 February
they had not been
2001,
afforded the opportunity of
the
documents which were relevant for their defence. They
criticised the Commission for the allegedly incomplete
character of the case file (non-inclusion of the complaints
which had led to the initiation of formal proceedings, lack
of an inventory, missing of indications about the content
of the non-accessible documents). The above criticisms had
been rejected before by the Commission's Directorate
COMP/E after consultation of the Hearing Officer.

8. The parties were invited to submit written oservations with
regard both to results of
the oral hearing and to an
internal note of DG MARKT analysing the approximately
700 complaints by consumers mentioned in the S/O,
which was sent
to them on 26 February 2001. The
deadline for both was the 16 March 2001.

9. During the months of April to June 2001, the parties
entered into discussions with the Commission with a

for

Landesbank Girozentrale,

view to putting an end to the proceedings. Settlements
were reached with Bayerische Landesbank Girozentrale,
Hamburgische
Landesbank
Hessen Thüringen Girozentrale, Westdeutsche Landesbank
Girozentrale and SEB Bank AG (former BfG Bank AG).
After formal commitments from their part to substantially
the exchange of eurozone
reduce their
charges
currencies before the beginning of
the holiday season,
the files were closed with regard to the above mentioned
banks. Similar settlements were reached in the parallel
in Finland (case
proceedings
Belgium
COMP/37.788),
the
(COMP/37.787),
Netherlands
against
Commerzbank AG, Dresdner Bank AG, Bayerische Hypo-
und Vereinsbank AG, Vereins- und Westbank AG and
Deutsche Verkehrsbank/Reisebank AG were continued.

(COMP/37.791). The proceedings

(COMP/37.790),
(COMP/37.789),

concerning the banks

Ireland
Portugal

and

10. By letters received by the Commission between 13 and 30
August 2001,
the latter parties claimed access to all
documents in the Commission's possession containing
information about the conditions upon which the files
concerned had been closed in respect of other German
and non-German banks, arguing that they had a right to
examine whether they had become victims of discrimi-
natory treatment by the Commission.

the

commitments

reached with the parties

11. By letters of 16 and 17 August and 4 and 17 September
2001 the Hearing Officer rejected these requests. He stated
that
in
non-German banking cases with a view to putting an
end to infringements committed on non-German markets
did not in any way affect the rights of defence of the
German banks involved in a separate procedure which
had been initiated against them for infringements on the
German market. Regarding the reasons for the closure of
the German case file in respect to the other German banks,
the Hearing Officer took the view that the parties had
been sufficiently informed through the Commission's
the
releases which contained a description of
press
the
the details of
commitments in question, and that
negotiation conducted with individual banks were confi-
dential
reason, were not
for
accessible to their competitors.

in character and,

this

Instance of

together with an application for

12. Two parties, Reisebank AG and Commerzbank AG,
brought an appeal against the aforementioned letters of
the Hearing Officer which they qualified as ‘decisions’,
the European
before the Court of First
Communities,
an
injunction suspending the execution of these ‘decisions’
the
and ordering the Commission not
procedure initiated against the appellants until the order
of
to the
in particular, not
Advisory Committee or to the full Commission a draft
of the final Commission decision, if it was disadvantageous
to the appellants.

the Court and,

to continue

to submit

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13. By order of 5 December 2001 the President of the Court
of First Instance rejected the applications of the parties for
an injunction. Reisebank AG and Commerzbank AG
lodged an appeal against this order. The appeal does not
have suspensive effect.

The Hearing Officer therefore concludes that the parties' rights
of defence have not been violated. The draft decision contains
only objections,
in respect of which the parties have been
afforded the opportunity of making known their views.

Final report of the Hearing Officer in case COMP/M.2389 — Shell/DEA

(prepared under 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))

(2003/C 14/03)

(Text with EEA relevance)

The draft decision does not give rise to any observations on the right to be heard, neither with regard to
the parties to the concentration nor with regard to interested this parties.

Done at Brussels on 7 December 2001.

Serge DURANDE