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: 2004-02-13
Institutions: European Commission
Subjects: audit, competition law, economic concentration, merger control, packaging, preparation for market, report

C 39/2

EN

Official Journal of the European Union

13.2.2004

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 39/02)

(Text with EEA relevance)

The proceedings in this case raised two issues:

(i) Oral hearing on the supplementary statement of objections

statement

the parties

2001. The

supplementary

The Commission sent
two statement of
objections in this case. The first and main Statement of
objections was the subject of an oral hearing on 26
September
of
objections was not the subject of an oral hearing but the
parties have had the opportunity to make known their
observations in writing. The parties have requested an
oral hearing in respect of the supplementary statement of
objections which was denied to them on the ground that
the final decision will not pursue any objections which
in the first and main
would not have been set out
statement of objections.
the final
decision is only based on the first statement of objections
and I am satisfied that the rights of defence of the parties
have not been violated.

I have verified that

(ii) Objectivity of

the market

test on the commitments

proposed by the parties

In respect of
proposed, the parties have made two allegations:

the market

test on the commitments

— first, that the questionnaire used to market test the
proposed commitments was inaccurate or misleading,

— second,

that

the Commission refused access to the

replies to the questionnaire.

the

questionnaire

description of

On the accuracy of the questionnaire, the parties claimed
the
gave
that
a
commitments which was
in
incomplete,
relation to the duration of a proposed license to be given
to a
the
third party. Although the description of
commitments in the questionnaire could have been more
accurate, since the Commission had annexed to its ques-
tionnaire the full wording of the proposed commitments it

in particular

interested
can be reasonably assumed that any potential
third party and any market operator having an interest in
the outcome of this case will have taken the care to read all
documents made available by the Commission before
replying to the questionnaire. Since the Commission has
not hidden any information, I can only conclude that the
allegation of having sent out an inaccurate or misleading
questionnaire is not founded.

test. First,

there is no legal obligation of

On the issue of access to the replies to the questionnaire,
the parties did not contest that they received a summary of
all replies but claimed that the summary failed to report at
least one reply which they had been informed of by
another channel. This would therefore put into question
the complete and objective nature of the summary of the
replies which the Commission prepared for the parties.
Hence, the parties claimed direct access to all replies in
order to check by themselves the complete and objective
nature of the Commission's summary. I do not think that
the parties are entitled to a direct access to the replies to a
market
the
Commission to do a market test and, where it does so,
to give access to the replies. Second, access to the full
text of the replies is not the only means to allow the
parties to verify the objectivity of a summary made by
the Commission services. In case the Commission services
do not give access to the replies and where the parties
entertain doubts about
the summary,
the parties may call upon the Hearing Officer to check
the objective nature of that summary. I have done so in
the present case and I can confirm that
the summary
provided to the parties truly reflects the answers received
by the Commission. The fact that one reply was missing
was due to the late arrival of that reply. I have asked the
Commission services to supplement the original summary
by an additional summary on that reply.

the objectivity of

I therefore conclude that the rights of the parties have been
fully respected.

Emil PAULIS