Final report of the Hearing Officer in case COMP/M.2416 — Tetra Laval/Sidel (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: 2004-02-10
Institutions: European Commission
Subjects: application of EU law, audit, economic concentration, packaging, preparation for market, report

10.2.2004

EN

Official Journal of the European Union

C 36/5

Final report of the Hearing Officer in case COMP/M.2416 — Tetra Laval/Sidel

(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 36/05)

(Text with EEA relevance)

The procedure in this Article 8(4) case gave rise to the
following issues:

A statement of objections was sent to the parties in this case
on 19 November 2001. The deadline for the parties to reply
was 3 December 2001 (two weeks is the standard time limit
set for replies in merger cases). Access to the file was made
available to Tetra Laval BV (‘Tetra’) on 22 November. The file
related to the Article 8(4) procedure, that is, from 30 October
to that date. Tetra requested, but was refused, access to the
portion of the file assembled between 20 September and 30
the market
October 2001, covering, among other
testing of Tetra's proposed undertakings
in the previous
Article 8(3) procedure.

things,

On 22 November 2001 Tetra wrote to the Hearing Officer
for additional access set out above.
restating the request
Tetra also requested the Hearing Officer
to extend the
deadline for its written response to the statement of objections
until a date at least two weeks after the date on which full
access to the file was granted and in any event no earlier than
12 December 2001. Tetra stated that it would like to present
evidence on whether the divestiture of the whole of Sidel SA
(‘Sidel’) within the period set out in the statement of objections
was necessary and reasonable in order to restore effective
competition on the market. Presentation of such evidence
would likely involve the consultation of outside experts and
the collection of evidence.

that

for additional access to file,
this

I
With regard to the request
informed Tetra on 27 November
request was
rejected (confirmed in writing on 29 November) referring to
the final report of the Hearing Officer in the Article 8(3)
(prohibition) decision, dated 24 October 2001. In this report
the Hearing Officer stated that the rights of the parties had
been fully respected in that procedure.
In particular, with
regard to replies from third parties to the market test, the
Hearing Officer confirmed that the summary of the replies
provided to the parties truly reflected the answers received

by the Commission. In these circumstances, I considered that
questions relating to access to file up to 30 October, the date
of the Article 8(3) decision, were exhausted and should not be
revisited in the context of the Article 8(4) procedure.

With regard to the request for an extension to the time period
to provide a written reply to the statement of objections, I also
informed Tetra on 27 November that the two-week time limit
should be retained. This was the normal time period given in
including those raising complex issues of fact
merger cases,
and/or law, that Tetra had been informed by the Commission
service of the essential content of the statement in a meeting
with the parties on 13 November and also that the press
release issued by the Commission on 30 October had
specifically announced that an Article 8(4) procedure would
follow. However I also made clear that supplementary docu-
mentation would be accepted for a short period after this time.
On request, however, I agreed to await an additional written
submission from Tetra setting out the special circumstances of
this case. A letter was sent by Tetra later that day. In the letter
of 29 November I confirmed my provisional conclusion on the
deadline but also confirmed that
‘expert opinions further
supporting Tetra's contention that the Commission's proposal
was disproportionate’ and the ‘development of alternative
methods of divestiture’ referred to by Tetra in their letter,
could be provided after this date.
In addition, Tetra was
given full opportunity to develop its arguments orally in the
oral hearing, which took place on 14 December 2001. Tetra
was accompanied at the hearing by its merchant bankers and
independent
I
consider that Tetra's rights to be heard have been respected
in this case.

financial analysts.

circumstances,

In these

The draft decision only contains objections in respect of which
the parties have been afforded the opportunity of making
known their views.

Karen WILLIAMS