Final report of the Hearing Officer in case COMP/36.571 — Austrian Banks (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))
Date: 2002-05-27
Institutions: European Commission
Subjects: Austria, EU control, bank, competition law, report, restriction on competition, restrictive trade practice

24.2.2004

EN

Official Journal of the European Union

C 48/7

Final report of the Hearing Officer in case COMP/36.571 — Austrian Banks

(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))

(2004/C 48/03)

The draft decision gives rise to the following observations on
the rights to be heard:

A statement of objections was sent to eight Austrian banks on
13 September 1999 (received on 15 September 1999) relating
to their participation in alleged cartel covering a wide range of
banking activities (the Lombard cartel). Further to their request
the deadline for their reply was extended from 15 November to
9 December 1999. The parties replied to the statement both in
writing and orally at an oral hearing that took place on 18 and
19 January 2000. Thereafter, a supplementary statement of
objections was
to the (same eight) parties on 22
November 2000 relating to alleged collusion on conversion
charges. The parties again replied in writing and orally at an
took place on 27 February 2001. The
oral hearing that
objections set out
in the supplementary statement are not
maintained in the draft decision.

sent

Following the supplementary statement of objections
the
parties claimed full access to parallel files established by the
Commission relating to suspected infringements of Article 81
the exchange of
EC in other Member State markets for
euro-zone currencies. The Hearing Officer concluded that the
parties had already obtained access to all documents from these
parallel files that were objectively related to the objections set
out in the present case. In the event, this issue is no longer
relevant for the purpose of the present draft decision since, as
stated above,
in the supplementary
statement of objections are not maintained.

the objections set out

The parties also raised objections to an expert opinion commis-
sioned by the Commission to evaluate an economic study
submitted by the banks themselves. The banks disputed the
the findings made in the commissioned expert
validity of
opinion because the latter's authors had apparently not been
in the possession of all relevant facts of the case. The parties
therefore requested that the expert opinion be removed from
the file and ignored for the purposes of the decision. The
they be granted an additional
parties also requested that
(third) oral hearing in the event that their first request was
not granted. The Hearing Officer rejected the first request on
the basis that
it was for the Commission to evaluate the
content of the expert opinion. What was important in this
context for the parties was that their rights to the defence
were guaranteed, namely, access to the study itself and the
opportunity to comment on it. The Hearing Officer determined
that an oral hearing was not necessary for this purpose.
information
the parties were granted additional
However,
relating to the
expert opinion in accordance with the
Commission notice on access to file. In the event, the commis-
sioned expert opinion is no longer a relevant issue for the
purpose of the present case since the Commission does not
rely on it in the draft decision.

the non-confidential version of

In the course of the procedure the Commission decided to
admit Freiheitliche Partei Österreich (‘FPÖ’) as complainant in
this case. The parties contested that FPÖ should be considered
as having legitimate interest in the meaning of Article 3 Regu-
lation 17. On 27 March 2001 the Hearing Officer wrote to
those banks which continued to contest this point informing
them that the FPÖ had repeated their request for transmission
the two statements of
of
objections in this case and that he proposed to accede to
their
the
request. A proposed non-confidential version of
documents was attached. Following additional correspondence
between the Hearing Officer and the parties on this issue,
decisions under Article 9(2) of the Commission Decision of
23 May 2001 on the terms of reference of
the Hearing
Officers in certain competition proceedings were addressed to
PSK and Erste on 9 August 2001.
the
Hearing Officer stated that it was not for the Hearing Officer
to decide upon applications under Article 3(2) of Council
the Commissioner
Regulation No 17 of 1962,
responsible for competition matters
the
Commission. The decision to admit the FPÖ as complainant
in this case had been taken by Mr Van Miert, and subsequently
confirmed by Mr Monti. This decision was a preparatory step
in the administrative procedure and not an appeallable measure
in itself. As to the non-confidential version of the statements of
objections the Hearing Officer rejected the request to delete the
names of the banks on the basis that this did not constitute a
business secret. However, data on the current and future
economic policies of the banks, together with the names and
functions of natural persons would be deleted.

In these decisions,

in the name of

rather

to transmit

the Commission not

On 19 September 2001 PSK brought an application before the
Court of First Instance to annul this decision together with an
application to suspend the operation of the contested decision
and to order
the two
statements of objections to the FPÖ. On 20 December 2001
the President of the Court rejected this request. The President
ruled that the requirements of serious and irreparable damage
and urgency were not established by the applicant and that in
considering the balance of
the
community interest whereby third parties
recognised as
complainants by the Commission should be able to present
useful comments on the objections raised by the Commission
should prevail over the interests of the applicant in preventing
the transmission of the statements of objections.

interests, determined that

Following the order granted by the President of the Court, the
non-confidential version of both statements of objections was
sent to the FPÖ on 9 January 2002 in order to enable them to
express their views. Further to an instruction from the Hearing
Officer the FPÖ were informed by the service responsible for
the case in DG Competition that the documents were intended
exclusively to enable them to exercise their rights to be heard
as complainants in this case and not for any other purpose, in
the transmission to any third party. They were
particular,

C 48/8

EN

Official Journal of the European Union

24.2.2004

subsequently informed in addition that the documents set out
the preliminary view of the Commission, and the banks had to
be regarded as innocent prior to any final decision of the
Commission. On 15 February 2002, the FPÖ requested full
access to the file and an oral hearing. Access to the file was
rejected since there was no legal basis for such access.
In
addition, the Hearing Officer rejected the request for an oral
hearing since this would result
in a further delay to the
procedure and was not likely to bring any significant added
value to the case. The Hearing Officer also noted with regret
that the FPÖ had made the statements of objections available
to the public. Such behaviour had no connection with the

rights of the FPÖ as complainant in the Commission's cartel
procedure in the present case.

In the light of the above, I conclude that the rights to be heard
have been respected in this case. The draft decision deals only
with objections in relation to which the parties have been
afforded the opportunity of making known their views.

Done at Brussels, 27 May 2002.

Karen WILLIAMS

Final report of the Hearing Officer in case COMP/38.170 — Reims II

(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))

(2004/C 48/04)

(Text with EEA relevance)

On 18 June 2001 seventeen Public Postal Operators (‘PPOs’) re-notified to the Commission an amended
version of the Reims II Agreement. The re-notification included a request for a renewal of the exemption,
granted by the Commission by Decision of 15 September 1999 until 31 December 2001.

inviting comments from
On 11 July 2001 the Commission published a summary of the agreement,
interested parties. Thereafter the Commission launched an investigation of
the amended agreement.
Meetings were held with the majority of the parties concerned at both bilateral and multilateral level,
as well as with a number of interested third parties. Following discussions with the Commission services
the parties further modified the Agreement on 24 January 2003 in order to meet the competition concerns
identified by the Commission's inquiry.

On 23 April 2003 the Commission published a notice pursuant to Article 19(3) of Regulation 17/62
setting out the main elements of the agreement and indicating that the Commission proposed to take a
positive view subject to certain requirements relating to third party access to Reims II terminal dues. These
requirements had been discussed with the parties. Third parties were invited by the Commission to provide
their comments.

Comments were received from a number of third parties. These comments were transmitted to the parties.
Following assessment by the Commission services, a further requirement was added in order to enable an
exemption to be made available. This was discussed with the parties concerned. The parties were also
informed that these requirements would be included as a condition for granting the exemption.

The draft decision grants an exemption pursuant to Article 81(3) of the EC Treaty subject to compliance
with conditions. The duration of the exemption has been clearly specified.

The rights to be heard in the present case have been respected.

Done at Brussels, 30 September 2003.

Karen WILLIAMS