Final report of the Hearing Officer in case COMP/M.2547 — Bayer/Aventis Crop Science (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: 2004-04-15
Institutions: European Commission
Subjects: audit, chemical industry, competition law, plant health product, report

15.4.2004

EN

Official Journal of the European Union

C 91/3

Final report of the Hearing Officer in case COMP/M.2547 — Bayer/Aventis Crop Science

(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 91/03)

(Text with EEA relevance)

The draft decision based on Article 8(2) of Regulation 4064/89 (the Merger Regulation), gives rise to the
following observations regarding the right to be heard:

1. The Commission sent a statement of objections to Bayer AG (‘Bayer’) on 15 February 2002. This was
followed by a short supplementary statement sent on 25 February 2002. The parties responded to both
statements. They did not request an oral hearing.

2. The parties raised one procedural issue before the Hearing Officer. On 28 March 2002 Bayer wrote to
me concerning the replies of third parties to the market test carried out by the Commission on the
proposed commitments that had been submitted by the parties on 15 March 2002. The market test
resulted in a number of negative replies for certain markets. Bayer was informed of this and provided
with an extensive summary of all responses. The summary did not identify the companies providing
these responses. In their letter of 28 March Bayer requested that the sources of the responses be
revealed. Bayer claimed this was essential for a proper assessment of the comments given by third
parties since the reactions were likely to depend on the nature of a given third party and might vary
between eg competitors interested in acquiring parts of the assets to be divested, and customers.

In reply, Bayer was informed that the provision of anonymised replies (in summarised form)
is
consistent with the caselaw of the Court of Justice and the Court of First Instance which has recognised
the need to preserve confidential treatment (in particular Case 310/93 BPB Industries and British
Gypsum v Commission [1995] ECR I-865, and Case T-229/95 Endemol v Commission [1999] ECR
II-1299). The possibility of retaliation by the parties to the concentration cannot be underestimated.
With regard to the specific argument raised by Bayer, the Commission is itself capable of factoring in
potential ‘vested interests’ should this be necessary. What is important is that the parties are informed of
the facts and issues drawn to the Commission's attention in order to express their views on them.

In the present case, a large number of respondents expressly required confidentiality, in whole or in
part. In the circumstances, and given the time constraints involved in conducting and processing the
market test, it was appropriate not to reveal the identity of respondents, and to act cautiously by not
revealing the names of any respondent (except one) in particular, in order to avoid the possibility that
by revealing the identify of some, the identity of the others would also be revealed. The fact that the
markets concerned by the present case are highly concentrated is particularly relevant in this respect.

The non-confidential version of one company's reply, however, was sent to the parties,
included. This company did not require anonymity and there was no risk that,
identity, the identity of other third parties would also be revealed.

identity
in revealing its

In the light of the above, I conclude that the parties' rights of defence have been fully respected. The draft
decision deals only with objections which the parties have been afforded the opportunity of making
known their views.

Done at Brussels, 12 April 2002.

Karen WILLIAMS