Final Report of the Hearing Officer — COMP/39.793 — EPH and others
Date: 2012-10-19
Institutions: European Commission
Subjects: dominant position, electronic mail, fine, infringement of EU law








C_2012316EN.01000601.xml










19.10.2012   


EN


Official Journal of the European Union


C 316/6





Final Report of the Hearing Officer (1)

COMP/39.793 — EPH and others
2012/C 316/04
I.   BACKGROUND







(1)


On 24-26 November 2009, the Commission conducted an inspection pursuant to Article 20 of Regulation (EC) No 1/2003 (2) at the premises of J&T Investment Advisors, s.r.o. (hereinafter ‘J&T IA’) (3) and Energetický a průmyslovy holding, a.s. (hereinafter ‘EPH’) (4).










(2)


On 17 May 2010, the Commission opened proceedings, pursuant to Article 23(1)(c) of Regulation (EC) No 1/2003, against J&T IA and EPH (hereinafter ‘the parties’) concerning an alleged refusal to submit to the inspection (5).




II.   INITIAL WRITTEN AND ORAL PROCEDURE







(3)


On 17 December 2010, the Commission adopted a statement of objections (‘SO’) against J&T IA and EPH concerning an alleged infringement as referred to in Article 23(1)(c) of Regulation (EC) No 1/2003. The objections related to three incidents that took place during the inspection.










(4)


The parties received access to the Commission's file on 6 January 2011. I did not received any request from the parties regarding access to the file, and therefore conclude that no problem arose in this regard.










(5)


The parties submitted written comments on the SO on 17 February 2011, within the time limit set by the Commission. In their written comments, the parties requested to develop their arguments at an oral hearing, which took place on 25 March 2011.










(6)


In the letter inviting the parties to the oral hearing, I included certain questions of clarification relating to one of the three incidents that occurred during the inspection and was mentioned in the SO (6). The parties were invited to address these questions at the oral hearing, and this led to a helpful discussion concerning this incident at the oral hearing.




III.   SECOND WRITTEN AND ORAL PROCEDURE







(7)


Following the oral hearing, the parties were informed by the Directorate-General for Competition during a state-of-play meeting that the Commission would not further pursue the one incident which is mentioned in paragraph 6 above.










(8)


Also following the oral hearing, the Commission addressed to EPIA and EPH a supplementary statement of objections (‘SSO’) on 15 July 2011, changing the qualification of the alleged infringement for another one of the three incidents from intentional to intentional or at least negligent.










(9)


The parties were granted access to the file on 1 August 2011 and submitted written comments on the SSO within the time limit set by the Commission. They requested to develop their arguments at a second oral hearing, which took place on 13 October 2011.




IV.   THE DRAFT COMMISSION DECISION







(10)


Pursuant to Article 16 of the Terms of Reference, I have examined whether the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views, and I have come to a positive conclusion.




V.   CONCLUDING REMARKS







(11)


Overall, I conclude that the parties have been able to effectively exercise their procedural rights in this case.





Brussels, 13 March 2012.

Wouter WILS




(1)  Pursuant to Articles 16 and 17 of Decision of the President of the European Commission 2011/695/EU of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29) (the ‘Terms of Reference’).

(2)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(3)  J&T IA's name changed to EP Investment Advisors (‘EPIA’) during the course of the proceedings. On 18 March 2011, the case name was changed from ‘J&T and others’ to ‘EPH and others’ upon request from the parties.

(4)  J&T IA was a wholly-owned subsidiary of EPH.

(5)  See Commission press release IP/10/627.

(6)  Pursuant to the then applicable Article 11 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), now Article 11(1) of the Terms of Reference.