Final report of the Hearing Officer in case COMP/M.2978 — Lagardère/Natexis/VUP (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: 2003-12-23
Institutions: European Commission
Subjects: audit, competition law, economic concentration, publishing, report

C 102/26

EN

Official Journal of the European Union

28.4.2004

Final report of the Hearing Officer in case COMP/M.2978 — Lagardère/Natexis/VUP

(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 102/09)

(Text with EEA relevance)

The draft decision gives rise to the following observations:

to the draft

An Article 6(1)(c) decision was sent to the notifying party on 5 June 2003. In the course of the in-depth
inquiry prior to the issue of the statement of objections the notifying party sought access to key
documents on the Commission's file pursuant
transparency policy published by the
Commission in December 2002. Certain materials were made available to the notifying party (in particular
questionnaires, the economic study and the BEUC report). However some third parties stipulated that their
submissions should be disclosed only on the basis of reciprocity. The notifying party did not agree with
this approach. On 15 October 2003, Lagardère's legal representatives addressed a letter to me on this
subject. At this stage of the procedure however, given that the sending of the Statement of Objections was
by then imminent (a fact that was known to the notifying party) further progress on this issue was not
feasible at that point. The notifying party was also reminded that the transparency provisions were still
draft proposals at the time. However, I stated that I would ensure the experience in this case would be
considered when finalising the text of the Best Practices Guidelines on the conduct of EC merger
proceedings.

A Statement of Objections was sent to the notifying party on 27 October 2003. Access to the file was
provided on the same day and the day following, in the form of two CD-ROMs. On receipt of a request
from the notifying party for further access to specific data submitted by third parties that was in fact
confidential, the case team was able to reformulate such information in a non-confidential format and thus
to provide it to the notifying party in this manner. In addition, following the signature of a confidentiality
agreement the notifying party was also provided, on request, with complete access to the programme used
in the econometric study carried out on behalf of the Commission.

The notifying party was given initially until 10 November 2003 to reply to the statement of objections (1).
The notifying party subsequently requested and was granted an extension of the deadline to reply until the
17 November 2003. The date of the oral hearing was also rescheduled. The notifying party provided a
response to the statement of objections in due time. The notifying party decided to waive the right to an
oral hearing.

In the meantime, on 13 November 2003, the notifying party submitted a document containing orien-
tations of a proposal for commitments. The relevant Commission services agreed to carry out a market test
on the basis of these orientations. Accordingly, a non-confidential version of the potential commitments
was sent to a number of third parties, together with a list of questions, requesting their observations.
Interested third parties who had actively participated in the case were also sent copies of the non-confi-
dential version of the Statement of Objections and, in the absence of an oral hearing, the notifying party's
written response, for its comments.

On 2 December 2003 (the deadline for submitting commitments to modify the concentration plan) the
notifying party presented a package of remedies in order to resolve the competition concerns identified by
the Commission services. Third parties were also informed about the commitments formally submitted.

(1) This was immediately extended until 11 November given that the second CD-ROM was made available only on 28

November.

28.4.2004

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Official Journal of the European Union

C 102/27

On 2 December also, the notifying party was provided with certain additional information upon which the
Commission intended to rely in the decision, for comment. On 17 December the notifying party received a
third CD-ROM containing non-confidential versions of additional information (in particular the market
test) received by the Commission up to the 12 December 2003.

In the light of the foregoing, I consider that the rights to be heard have been respected in this case.

Done at Brussels, 23 December 2003.

Karen WILLIAMS

Opinion of the Advisory Committee on concentrations given at its 122nd meeting on 22
December 2003 concerning a draft decision relating to case COMP/M.2978 — Lagardère/
Natexis/VUP

(2004/C 102/10)

(Text with EEA relevance)

1. The Advisory Committee agrees with the Commission that the concentration has a Community

dimension within the meaning of the Merger Regulation.

2. The Advisory Committee agrees with the Commission's definition of a primary market for French-
language publishing rights that has to be subdivided according to the category of books and a separate
market for French-language publishing of foreign publishing rights.

3. The Advisory Committee agrees with the Commission's definition of secondary markets for French-

language publishing rights for Publication in Pocket Format.

4. The Advisory Committee agrees with the Commission's definition of separate markets

(a)

for marketing services and distributions services,

(b) for marketing services according to classes of dealers (bookshops, wholesalers and hypermarkets),

(c)

for the sale of books by publishers to dealers according to the type of dealer,

(d) for the sale of books by the publishers to dealers and for the sale of books by wholesalers to class

3 dealers.

5. The Advisory Committee agrees with the Commission's definition of separate markets for the sale of
books according to major categories of books and with the classifications proposed by the Draft
Decision.

6. The Advisory Committee agrees with the Commission's definition of separate markets for the sale of

large-format and pocket-format general literature titles.

7. The Advisory Committee agrees with the Commission's definition of separate markets for school

textbooks and educational supporting material.