Final report of the Hearing Officer in Case COMP/38.899 — Gas Insulated Switchgear (GIS) (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: 2007-01-15
Institutions: European Commission
Subjects: electrical equipment, electrical industry, exchange of information, report, restriction on competition

C 5/4

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Official Journal of the European Union

10.1.2008

Final report of the Hearing Officer in Case COMP/38.899 — Gas Insulated Switchgear (GIS)

(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 5/05)

The draft decision in the above mentioned case gives rise to the following observations.

The case was initiated following an application for immunity by the company ABB on 3 March 2004 under
the Commission notice on immunity from fines and reduction of fines in cartel cases (1) (the Leniency
Notice). On 25 April 2004,
immunity. Subsequently, on
the Commission granted ABB conditional
11-12 May 2004 the Commission services carried out unannounced inspection at the premises of the
undertakings Areva, Siemens, VA Tech, Hitachi and Japan AE Power Systems Corporation.

Subsequently, Areva, Siemens, VA Tech, Hitachi/Japan AE Power Systems Corporation, Mitsubishi and Fuji
made submissions for immunity/reduction of fines under the Leniency Notice.

In the Statement of Objections, adopted on 20 April 2006, the Commission took the preliminary view that
from at least 15 April 1988 to 11 May 2004 the 21 companies to which the Statement of Objections was
addressed had participated in a single complex and continuous infringement of Article 81(1) EC and, from
1 January 1994, Article 53(1) of the EEA Agreement and announced its intention to adopt an infringement
decision and to impose fines (2). According to the Commission the parties had agreed on market sharing,
allocation of quotas, allocation of individual GIS-projects (bid-rigging), price-fixing, termination of license
agreements with non-cartel members and exchanged sensitive commercial
information. The cartel was
world-wide in scope although certain territories were excluded, specifically US and Canada.

The addressees of the Statement of Objections were granted access to the file in the form of a CD-ROM.
Oral statements, which had been made in the framework of the Leniency Notice, were made accessible at
the Commission's premises. The parties were entitled to take notes, listen to tape recordings and/or read
transcripts prepared by the Commission but were not permitted to make copies of
the documents
concerned.

Several parties requested an extension of the deadline to reply to the Statement of Objections, which I
granted partially. All parties replied in due time.

At the request of the parties an oral hearing was held in accordance with Article 12 of Commission Regu-
lation (EC) No 773/2004 on 18-19 July 2006. All parties except Mitsubishi Electric Corporation attended
the hearing.

After the oral hearing the Commission services made available to the parties Fuji's leniency submission,
which it had received on 12 July 2006 and parts of ABB's and Fuji's replies to the Statement of Objection
and invited the parties to submit their comments. In addition, Hitachi and Fuji were granted access to each
other's replies to the Statement of Objections but only in so far as they were relevant to the liability for the
conduct of their joint venture, Japan AE Power Systems Corporation. Subsequently, Fuji and ABB provided
additional
information to the Commission services, which were made available to the other parties for
comments.

the new pieces of

In view of
information received after the Statement of Objections several parties
approached me and requested that a new round of full access to the file should be given, and that non-confi-
dential version of other parties' replies to the Statement of Objections should be given to them.

(1) OJ C 45, 19.2.2002, p. 3.
(2) As from 27 May 2006 one of the addressees of the Statement of Objections, VA Technologie AG, ceased to exist as a legal
entity, as it had merged into Siemens Aktiengesellschaft Österreich. Therefore, on 21 June 2006, the Commission adopted
an addendum to the SO according to which the latter replaced VA Technologie AG in the proceedings.

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Official Journal of the European Union

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I took the view that the additional information received by the Commission after the Statement of Objec-
tions did not amount to a re-opening of the investigation that could warrant a new round of full access to
the file. I also considered, in accordance with recent case law, that the parties have no general right of access
to other parties replies but only to information contained therein that may be inculpatory and relied upon
in a final decision or have an exculpatory value (1). Nevertheless, I considered that the Commission had not
sufficiently clarified which new information it intended to use in a potential final decision or which allega-
tions this information was intended to support. I thus requested the Commission services to clarify to the
parties the use it intended to make of the new information received, which it had made available to the
parties.

Accordingly, by letter 14 November 2006, the Directorate-General for Competition wrote to the parties and
identified those pieces of information that it had received in so far that these contained corroborating or
incriminating elements that it intended to use in any final decision and clarified the use it intended to make
of this information. The parties were granted a supplementary deadline of one week to make their views
known.

Most parties considered that the deadline was too short to allow them to adequately exercise their right of
defence and requested an extension.

After examining their request I decided to extend the deadline with one additional week. The parties'
submissions have been considered and, where relevant, taken into account by the Commission in the final
decision.

In light of the written replies to the Statement of Objections and subsequent correspondence, and the results
of the hearing, notably the duration of the participation in the infringement, as described in the Statement
of Objections, has been reduced for several parties, i.e. Areva T&D SA, Areva T&D AG, Nuova Magrini
Galileo SpA in liquidation, Schneider Electric SA, Siemens AG Österreich (former VA Technologie AG and
VA Tech T&D GmbH), VA Tech Transmission & Distribution GmbH & Co KEG, Siemens Transmission &
Distribution Ltd (former VA Tech Transmission & Distribution Ltd) and Siemens Transmission & Distribu-
tion SA (former VA Tech Transmission & Distribution SA).

I consider that the parties right be right to be heard has been respected in this case for all participants to the
proceedings

Also, in my opinion the draft decision relates only to objections in respect of which the parties have been
afforded the opportunity to make known their views.

Brussels, 15 January 2007.

Serge DURANDE

(1) CFI judgment of 27 September 2006 in Case T-43/02, Jungbunzlauer.