Final report of the Hearing Officer in Case COMP/E-1/38.113 — Prokent/Tomra (Pursuant to Articles 15 and 16 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: 2006-03-22
Institutions: European Commission
Subjects: audit, beverage, dominant position, economic concentration, merger control, packaging product, report, restriction on competition, restrictive trade practice, waste recycling

28.8.2008

EN

Official Journal of the European Union

C 219/7

Final report of the Hearing Officer in Case COMP/E-1/38.113 — Prokent/Tomra

(Pursuant to Articles 15 and 16 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)

(2008/C 219/09)

The present proceedings resulted from a complaint submitted by Prokent AG against the Tomra Group on
26 March 2001 (1). The complaint originally concerned an abuse of Tomra's dominant position in the
market for the supply of so-called reverse vending machines and related products, in particular backroom
equipment, to prevent market access by competitors.

The Commission took the view that, according to Article 56 of the EEA Agreement, it had jurisdiction over
this case (2) and initiated an investigation. Subsequent to that the Commission concluded that Tomra was a
dominant undertaking both within the EU and within the territory of the EFTA States and had engaged in
exclusionary conduct contrary to Article 82 of the EC Treaty and Article 54 of the EEA Agreement in
several EU Member States. The Commission considered that Tomra had implemented this strategy, in par-
ticular, through exclusivity agreements, quantity commitments and rebate schemes.

Accordingly, the Commission issued a Statement of Objections (SO) on 1 September 2004 which covered
mainly Tomra's policy and practices until the beginning of 2003 (3). The SO was addressed to: (i) Tomra
(v) Tomra
(iii) Tomra Systems BV;
Systems ASA;
Buttikksystemer AS; (vi) Tomra System AS (DK); (vii) Tomra Systems AB and (viii) Tomra Leergutsysteme
GmbH.

(iv) Tomra Systems GmbH;

(ii) Tomra Europe AS;

Access to file

By 13 September 2004, all addressees had been granted complete access to the file.

Deadline to reply

Upon reception of the SO, Tomra applied for an extension of the deadline to reply of two months without
giving, in my view, sufficient grounds to grant its request. However, I exceptionally decided to extend the
deadline until 14 November 2004.

Upon a second request by Tomra, I agreed to a further extension until 22 November 2004. Tomra had
submitted that the information necessary to answer in detail to the SO ‘had to be obtained by interviews with
employees who have not had to keep records […] and [that it should] consult former employees’. I considered that
the need to conduct interviews can allow for an extension of the deadline to reply to an SO only in excep-
tional cases. I accepted that this could be the case for Tomra, given its relatively lean management structure,
but only to a limited extent.

Oral Hearing

Tomra formally requested an oral hearing pursuant
No 773/2004, which took place on 7 December 2004.

to Article 12 of Commission Regulation (EC)

The specific situation of the complainant in this case

As has been pointed out above, this procedure was initiated on the basis of the complaint by Prokent AG, a
German competitor of Tomra. In September 2003, Prokent AG went bankrupt and was acquired by the
German company Wincor Nixdorf International GmbH by way of an asset deal. On 26 September 2003,
the Commission was informed that Prokent AG had initiated its liquidation procedure.

In application of Article 6 of Regulation (EC) No 773/2004, a non-confidential version of the SO was sent
to Wincor Nixdorf International GmbH on 26 October 2004 on the assumption that it was the legal
successor of the complainant. The Commission did not receive any comments from them, and they did not
express a wish to participate in the oral hearing.

(1) Hereinafter ‘Tomra’.
(2) Tomra's turnover in the territory of the EFTA States did not equal 33 per cent or more of its turnover in the EEA. Several of
Tomra's competitors were based in EC Member States, while Tomra also had a production subsidiary in an EC Member
State.

(3) In April 2002, Tomra approached the Commission with a view to settling the case. The Commission did not consider this

appropriate at the time and therefore proceeded to issue a SO.

C 219/8

EN

Official Journal of the European Union

28.8.2008

On 6 May 2005, i.e. five months after the oral hearing, a lawyer informed the Commission services that he
had received a power of attorney from Prokent AG, which had not yet lost its legal personality, to carry out
its representations in this antitrust procedure. In addition, he requested copies of any decisions the Commis-
sion had adopted so far. A non-confidential version of the SO was therefore sent to him on 27 May 2005,
offering Prokent AG an opportunity to submit comments by 24 June 2005. On 15 June 2005 this deadline
was extended upon request until 5 August 2005. The Commission services also offered Prokent AG an
opportunity to make oral observations on the case at a meeting that would have been held at the Commis-
sion premises and in my presence.

Prokent AG informed the Commission by fax of 16 August 2005 that it would not make any written
comments to the SO. By e-mail of 18 November 2005, Prokent also declined the Commission's offer to
make oral observations.

Since the Commission has expeditiously adopted corrective measures taking into account the fact that the
complainant had not ceased to exist as a legal person after its bankruptcy, I consider that the complainant's
procedural rights have been fully respected in this procedure.

The Commission's final orientation

DG Competition has addressed the reasoning and factual elements submitted by Tomra in its written reply
and at the oral hearing. As a consequence, Denmark was removed from the list of the countries where the
abuse was established and Tomra's Danish subsidiary Tomra System AS is no longer an addressee of the
final decision.

In the light of the above, I conclude that the draft decision only contains objections in respect of which the
parties have been afforded the opportunity of making known their views.

I consider that the rights to be heard of the participants to this proceeding have been respected.

Brussels, 22 March 2006.

Serge DURANDE