Final report of the Hearing Officer in case COMP/M.2706 — Carnival Corporation/P & O Princess Cruises (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: 2002-07-23
Institutions: European Commission
Subjects: audit, economic concentration, merger control, pleasure craft, travel agency

C 233/12

EN

Official Journal of the European Union

30.9.2003

Final report of the Hearing Officer in case COMP/M.2706 — Carnival Corporation/P & O Princess
Cruises

(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 233/09)

(Text with EEA relevance)

The draft decision submitted to the Commission under Article
8(2) of Council Regulation (EEC) No 4064/89 prompts a
number of remarks concerning respect for the right
to be
heard.

procedure if they can demonstrate sufficient interest to present
their written observations and where appropriate to take part
in a formal hearing.

As regards the right of
the merger
operation analysed has a special feature in that two firms are
in competition on the market to take control of the target
company.

the parties involved,

The result was a climate in which these firms were very
reluctant to pass on information to the others. This caused a
number of difficulties of access to the file for firms entitled to
such access in particular Carnival Corporation. These were
resolved as and when they arose,
in particular through the
exchange of many letters and e-mails between the Commission
and the firms.

Carnival was given additional time to reply to the Statement of
Objections,
in particular because information relating to the
target, which is as a rule supplied to the potential buyer for
the notification, had not been supplied in the context of a
hostile takeover bid.

Carnival, as the notifying party, and P & O Princess Cruises, as
an involved party, were entitled to present their arguments
orally in a formal hearing under Article 14(1) and (2) of
Commission Regulation (EC) No 447/98. They expressly
waived this right.

The right of third parties to be heard is different and less
extensive, since third parties are only indirectly involved in
the operation. Recitals 9 to 14 of Regulation No 447/98
illustrate in particular the differences in the approach of the
legislator on this point.

In the instant case, Royal Caribbean Cruises Limited wrote to
me asking specifically to organise a formal hearing to which it
would be admitted, even if
the parties did not ask for a
hearing.

I acknowledged the legitimate interest of this firm to take part,
if necessary as an involved third party, in a hearing if one was
requested by the parties referred to in Article 14(1) and (2) of
Regulation (EC) No 447/98. In the end this was not the case
and I concluded that the third parties in a case are in no way
entitled to demand that the Commission call a formal hearing.

Although this request by Royal Caribbean was not accepted, it
should be noted that the firm was given a full hearing, to an
extent compatible with its status as a third party in the case.

This firm made its views known to the Commission in writing
on all the circumstances of the case, in full detail and on a
number of occasions.

What is more, strict application of Royal Caribbean's right to
be heard would have simply meant, pursuant to Regulation
(EC) No 447/98,
in what would inevitably be
summary form about the nature and subject matter of the
procedure.

informing it,

Royal Caribbean did, however, receive — with the agreement
of Carnival — a copy of the non-confidential version of the
Statement of Objections.

involved,

the
I therefore conclude that
party
third parties,
including especially Royal Caribbean, were able to exercise
their right to be heard in this case in accordance with the rules.

the notifying party, Carnival,
and the

P & O Princess,

Article 16(1) of Regulation (EC) No 447/98, based on Article
18(4) of Regulation (EEC) No 4064/89, entitles them to be
informed in writing of the nature and subject matter of the

Done at Brussels, 23 July 2002.

Serge DURANDE