Final report by the hearing officer on case COMP/36.700 — Industrial and medical gases (pursuant to Article 15 of the 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: Netherlands, audit, competition law, gas, price agreement, report

C 78/4

EN

Official Journal of the European Union

1.4.2003

Final report by the hearing officer on case COMP/36.700 — Industrial and medical gases

(pursuant to Article 15 of the 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 78/04)

(Text with EEA relevance)

This draft decision refers to a pricing agreement in the field of industrial gases on the Dutch market. It has
given rise to the following observations as regards the parties' right to be heard:

1. NV Hoek Loos asked for a number of documents relating to the prices of its products to be treated as
confidential. Since the documents concerned price-fixing and they were useful to determine the nature
of the infringement, this request was not accepted by the hearing officer, who decided to abide by the
terms of Notice 97/C 23/03 in the matter. On 15 June 2001 the Commission therefore decided to
reject the arguments advanced by Hoek Loos, which did not appeal against the decision.

2. The statement of objections was sent to the undertakings on 9 July 2001. Some difficulties arose with
access to the file, owing to the use of CD-ROMs. The difficulties were resolved in stages between
August and October 2001 by dispatching new CD-ROMs and establishing non-confidential versions of
documents required by the undertakings in order to exercise their right to be heard. Consequently, the
deadline for reply to the statement of objections was postponed to 15 November 2001.

3. The hearing was held on 10 January 2001 for the seven parties which had requested it. It enabled the
undertakings to draft their written replies, notably those relating to the issue of the limitation period.

After the hearing, it was decided not to take into account infringements committed between 1989 and
1991 for the purposes of calculating the fine, but to consider only the period in respect of which the
Commission has unbroken evidence, that is, September 1993 to December 1997.

Two particular issues as regards the liability for the infringement arose in the course of proceedings:

1. AGA Gas BV, the company to which the statement of objections was addressed, was sold during the
investigation. The parent company, AGA AB, proposed that it assume responsibility for its former
branch; this is why the final decision is addressed to AGA AB. The latter has explicitly renounced to
have a statement of objections addressed to it.

2. The parent company, Air Products and Chemicals Inc (United States of America), has a branch, Air
Products Nederland BV, in the Nederlands which was party to the pricing agreement, and a branch in
the United Kingdom, Air Products Europe, which is responsible for coordinating the legal activities of
the European branches. Air Products Europe received the statement of objections, replied to it and
represented Air Products Nederland BV at the hearing.

Air Products Nederland BV has explicitly renounced to have a statement of objections addressed to it.
The final decision is addressed to Air Products Nederland BV.

The draft decision submitted to the Commission contains only arguments presented to the parties in the
statement of objections.

Brussels, 23 July 2002.

Serge DURANDE