Final report of the Hearing Officer in Case COMP/E-1/37.370 — Sorbates (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: 2003-09-23
Institutions: European Commission
Subjects: administrative procedure, audit, cartel, chemical product, competition law, preservative, report

13.7.2005

EN

Official Journal of the European Union

C 173/5

Final report of the Hearing Officer in Case COMP/E-1/37.370 — Sorbates

(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)

(2005/C 173/03)

The draft decision in this case gives rise to the following observations:

Statements of objections were sent to seven undertakings — Cheminova A/S (Cheminova), Chisso Corpora-
tion (Chisso), Daicel Chemical Industries, Ltd (Daicel), Hoechst AG, (Hoechst), Nutrinova Nutrition Special-
ities & Food Ingredients GmbH (Nutrinova), The Nippon Synthetic Chemical Industry Co, Ltd (Nippon),
Ueno Fine Chemicals Industry, Ltd (Ueno) on 30 December 2002 or 9 January 2003. Access to the file
was provided by two CD-ROMS that accompanied the Statements of Objections or were sent subsequently.
One of the parties requested an extension of the original time period to reply to the Statement of Objec-
tions. In response, I granted extensions for all parties to reply eight weeks following receipt of the complete
access to the file. All parties responded in due time.

All parties requested an oral hearing, which took place on 24 April 2003.

In the meantime, on 22 January 2003 the legal representative of Hoechst and Nutrinova requested me to
provide further access to the file, this having been rejected by the relevant Commission services. Specifi-
cally, additional access was requested to any notes of telephone conversations that had taken place
between Commission officials and Chisso between September 1998 and the end of April 1999. Hoechst
and Nutrinova also requested access to the full letters, including annexes, sent by Chisso to the Commission
on 17 December 2002 and 26 March 1999. These documents were claimed to be material to Hoechst and
Nutrinova's arguments and defence as to leniency including the issue as to which company was first to
provide decisive evidence.

In response, I informed the parties by letter of 24 February 2003 that further access to the file would not
be granted at that stage of the procedure. I explained that notes of telephone conversations between parties
and Commission officials are internal documents of the Commission and thus, in principle, non-accessible.
In this particular case, the Commission had, exceptionally, made accessible some of the internal file notes
and had referred to them in the Statement of Objections, in order to explain the facts and dates of the
meetings that the Commission held with the different addressees. With regard to the letters from Chisso,
the latter had requested confidential treatment for these letters and the parties had been given access to
non-confidential summaries of those letters (1).

In its reply to the Statement of Objections Hoechst and Nutrinova requested access to the other parties'
replies to the Statement of Objections and by letter of 2 April 2003, Chisso made a formal request for
access to non-confidential version of Nutrinova's reply to the Commission's Statement of Objections. In
response, these parties were informed that replies to the Statement of Objections as such are not accessible
as they are not part of the investigation file. It is only when the Commission intends to use a reply to the
Statement of Objections of one undertaking as incriminating evidence against another undertaking or as
exonerating evidence in favour of another undertaking that this information is passed to the undertaking
concerned.

In addition, in their reply to the Statement of Objections and at the Oral Hearing Hoechst and Nutrinova
reiterated their request for additional access to file in the context of procedural errors that they claimed to
have been committed by the Commission. More specifically, Hoechst and Nutrinova claimed to have been
disadvantaged in terms of treatment by the Commission by comparison with Chisso in a number of
specific ways relating to their cooperation with the Commission.

(1) Chisso's legal representative subsequently after the Oral Hearing and in response to a request from me to reconsider
the confidentiality nature of the letter sent to the Commission on 26 March 1999, confirmed its view that this docu-
ment contained business secrets and thus as such was confidential.

C 173/6

EN

Official Journal of the European Union

13.7.2005

As a result of these claims made by Hoechst and Nutrinova, I have paid special attention to the conclusions
of the Commission on the issue of leniency in the present draft decision. I have also examined internal
notes of the Commission services in so far as these exist. In the event, the concerns expressed by Hoechst
and Nutrinova are largely rendered moot by the conclusions set out in the draft decision on the issue of
leniency. In addition, I am satisfied that the actions of the Commission services vis-à-vis the parties have
had no impact on the outcome of the case on this issue. I also confirm that no additional access to file is
required in order to satisfy Hoechst's rights of defence. Neither the Commission's internal documents nor
the documents provided by Chisso provide any additional
inculpatory or exculpatory evidence which
would be required to be made available to Hoechst.

Following the Oral Hearing the objections addressed to Cheminova and Nutrinova have been dropped. In
addition, although it was only Nutrinova which contacted the Commission on the issue of leniency, the
Commission has accepted Nutrinova's leniency application as being submitted also on behalf of Hoechst.
Moreover, in the draft decision the duration of the infringement for the remaining parties has been some-
what reduced as compared to the Statement of Objections.

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

Brussels, 23 September 2003.

Karen WILLIAMS