Final Report of the Hearing Officer – Case AT.40401 – Second-hand Rolling Stock
Date: 2024-10-18
Institutions: Directorate-General for Competition, European Commission
Subjects: EU competition policy, carriage of passengers, control of restrictive practices, market access, rail transport, sanction (EU)




C_202502120EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2025/2120


11.4.2025






Final Report of the Hearing Officer (1)

Case AT.40401 – Second-hand Rolling Stock
(C/2025/2120)

1.   INTRODUCTION









1.


This report concerns a draft decision in case AT.40401, whereby the Commission establishes that České dráhy, a.s (‘ČD’), the State-owned rail incumbent provider of rail transport services in Czechia, and Österreichische Bundesbahnen (2) (‘ÖBB’), the State-owned rail incumbent provider of rail transport services in Austria (together ‘the Parties’) participated in a single and continuous infringement of Article 101 TFEU.












2.


According to the draft decision, ČD and ÖBB entered into agreements and/or concerted practices aimed at impeding the market entry or expansion of their common competitor RegioJet a.s. (‘RegioJet’) in the markets for the provision of domestic long-distance rail passenger transport services in Czechia as well as for the provision of international long-distance rail passenger transport services between Austria and Czechia on the Prague - Vienna route by preventing, hindering or restricting the access of RegioJet to used railway wagons for long-distance passenger transport. Also, according to the draft decision, the infringement covered the period from 9 May 2012 to 21 January 2016.












3.


The procedural developments in this case are set out in Sections 2, 3 and 4 of this Report. Section 5 analyses a number of procedural complaints raised by the Parties, particularly ČD.




2.   INVESTIGATION PHASE









4.


Between 28 June and 1 July 2016, the Commission carried out inspections at the premises of ČD, ÖBB and [….] (*1).












5.


On 29 August 2016, ČD brought an action for the annulment of the inspection decision. That action was dismissed by judgment of 20 June 2018, (3) which was upheld by judgment of 30 January 2020 (4).












6.


On [….], the Commission received an application from ÖBB for a reduction of fines under the 2006 Commission notice on immunity from fines and reduction of fines in cartel cases (the ‘Leniency Notice’) (5).












7.


From December 2019 to May 2022, there were discussions and exchanges between the Commission and the Parties concerning the possibility to settle the case (6).












8.


On 20 November 2020, the Commission initiated proceedings in the present case against ČD and ÖBB pursuant to Article 2(1) of Regulation No 773/2004 (7) and Article 11(6) of Regulation No 1/2003 (8). On the same day, the Commission provisionally granted ÖBB a reduction in the first leniency band (i.e. 30 %-50 %) under the 2006 Leniency Notice.




3.   WRITTEN PROCEDURE

3.1.   Statement of Objections









9.


The Commission adopted a Statement of Objections addressed to ČD and to ÖBB on 10 June 2022, which was notified to them on 13 June 2022 (the ‘SO’).












10.


In the SO, the Commission preliminarily found that ČD and ÖBB participated in a single and continuous infringement of Article 101(1) TFEU. More specifically, according to the SO, the alleged infringement consisted of agreements and/or concerted practices between the Parties aimed at impeding the market entry or expansion of RegioJet by preventing, hindering or restricting the access of RegioJet to used railway wagons for long-distance passenger transport.












11.


In the SO, the Commission preliminarily found that the Parties are potential competitors on the market for the provision of international rail passenger transport services on the Prague – Vienna route and on the market for the provision of domestic long-distance rail passenger transport services in Czechia, and that they agreed to engage in conduct with the aim to foreclose their common competitor RegioJet by denying an important input, i.e., used railway wagons for long-distance passenger transport. Accordingly, in the SO, the Commission preliminarily qualified the conduct as a cartel in the form of a collective boycott.












12.


The alleged infringement covered the whole territory of Czechia as well as the Prague – Vienna route and lasted from 9 May 2012 to 21 January 2016.




3.2.   Access to the File









13.


On 21 June 2022, DG Competition gave ÖBB a DVD containing the accessible part of the case file in person.












14.


On 23 June 2022, DG Competition provided ČD with a DVD containing the accessible part of the case file by courier. Access to ÖBB’s leniency statements had been previously granted to ČD through virtual access means on 16 and 19 April 2021 (9).












15.


On 29 July 2022, ČD requested DG Competition for further access to file. By email of 9 August 2022, DG Competition rejected ČD’s request for further access to file.












16.


On 15 August 2022, the Hearing Officer received a request from ČD seeking further access to file, pursuant to Article 7(1) of Decision 2011/695/EU (‘ČD’s Article 7 Request of 15 August 2022’) (10).












17.


On 25 August 2022, DG Competition provided ČD with some clarifications concerning certain documents covered by the Article 7 Request.












18.


On 23 and 25 November 2022, at the request of the Hearing Officer and after the information providers being contacted, DG Competition provided further access to certain documents covered by ČD’s Article 7 Request of 15 August 2022 (11). DG Competition granted ČD until 30 December 2022 to submit any supplementary observations concerning those documents. On 1 December 2022, ČD asked for an extension of that time limit until 31 January 2022 (*2). On 7 December 2022, DG Competition granted an extension of the time limit until 16 January 2023, on which date ČD submitted supplementary observations concerning the documents.












19.


On 11 July 2023, ÖBB referred its objections regarding further disclosure of certain personal data contained in ÖBB documents to the Hearing Officer, pursuant to Article 8(2) of Decision 2011/695/EU.












20.


On 25 July 2023, to address observations made by ČD in its reply to the SO concerning access to meeting minutes, DG Competition, after reviewing contemporaneous records of calls and meetings, gave access to ČD to minutes of three meetings held between the Commission and representatives of ÖBB and [….] in 2017, 2018 and 2021 (12). On 22 August 2023, ČD submitted observations on those minutes.












21.


On 20 September 2023, at the request of the Hearing Officer and after contacting the information providers, DG Competition gave ČD further access by means of new non-confidential versions of certain file documents (13) and set the additional deadline of 4 October 2023 to submit any supplementary observations concerning those documents. On 25 September 2023, ČD asked for and DG Competition granted an extension of that time limit until 13 October 2023, on which date ČD submitted supplementary observations (14).












22.


On 21 September 2023, in reply to ÖBB’s referral of 11 July 2023, (15) the Hearing Officer adopted a decision pursuant to Article 8 of Decision 2011/695/EU, allowing the disclosure to ČD of certain personal data contained in ÖBB documents (the ‘Article 8 Decision addressed to ÖBB’). On 18 October 2023, DG Competition provided ČD with further access to that information and set an additional deadline to submit any supplementary observations concerning the newly accessed information, by 2 November 2023 (16).












23.


On 25 October 2023, ČD asked DG Competition to be granted (a) an extension until 16 November 2023 of the deadline mentioned in the previous paragraph, and (b) access to the Article 8 Decision addressed to ÖBB and to ‘… other yet undisclosed documents which were placed into the Commission’s file after the issuance of the Statement of Objections on 10 June 2022 (if any)’.












24.


On 27 October 2023, DG Competition granted ČD the requested deadline extension. On 16 November 2023, ČD submitted its observations on the information made accessible on 18 October 2023.












25.


On 1 December 2023, the Hearing Officer adopted a decision concerning the parts of ČD’s Article 7 Request of 15 August 2022 that had not been resolved previously (as described in paragraphs 17, 18 and 21 to 22) (the ‘Article 7 Decision of 1 December 2023’).












26.


On 20 December 2023, DG Competition informed ČD that it intended to disclose to ÖBB the information included in ČD’s reply of 14 July 2023 to the request for information of 15 June 2023 (the ‘RFI Reply of 14 July 2023’) (17) and gave a deadline until 7 January 2024 to refer the matter to the Hearing Officer, should ČD wish to object to the intended disclosure.












27.


On 5 January 2024, ČD referred to the Hearing Officer, pursuant to Article 8 of Decision 2011/695/EU, its objections against the disclosure to ÖBB of certain information included in the RFI Reply of 14 July 2023.












28.


On 10 January 2024, in reply to ČD’s request for further access of 25 October 2023, DG Competition provided ČD with a non-confidential version of ÖBB’s submission of 20 February 2023 […] and indicated that the conditions of point 27, second paragraph, of the Notice on Access to File (18) were not fulfilled for other documents placed in the Commission’s file after the adoption of the SO. In addition, DG Competition rejected ČD’s request to be provided with access to the Article 8 Decision addressed to ÖBB. On 28 February 2024, ČD submitted observations concerning ÖBB’s submission of 20 February 2023.












29.


On 28 February 2024, the Hearing Officer received a new request from ČD seeking further access to file, pursuant to Article 7(1) of Decision 2011/695/EU and referring to DG Competition’s reply of 10 January 2024 (‘ČD’s Article 7 Request of 28 February 2024’).












30.


On 15 March 2024, in reply to ČD’s referral of 5 January 2024, the Hearing Officer adopted a decision pursuant to Article 8 of Decision 2011/695/EU, allowing the disclosure to ÖBB of information included in the RFI Reply of 14 July 2023 (the ‘Article 8 Decision addressed to ČD’).












31.


On 10 June 2024, at the request of the Hearing Officer and after contacting ÖBB, DG Competition gave ČD further access to information on ÖBB internal rolling stock valuations by means of new non-confidential versions of certain file documents (19) and set the additional deadline of 24 June 2024 to submit any supplementary observations concerning those documents. In addition, on 11 June 2024, DG Competition provided ČD with access to the non-confidential version of the Annexes of ÖBB’s reply to the SO, with the same deadline to submit any supplementary observations. At the request of ČD, DG Competition extended the deadline to submit supplementary observations to 19 July 2024. Moreover, on 11 June 2024, DG Competition provided ÖBB with access to the non-confidential version of the Annexes of ČD’s reply to the SO, with the same deadline to submit any supplementary observations.












32.


On 12 July 2024, the Hearing Officer adopted a decision concerning ČD’s Article 7 Request of 28 February 2024 (the ‘Article 7 Decision of 12 July 2024’).












33.


On 24 June 2024 and 19 July 2024, ÖBB and ČD respectively submitted supplementary observations on the information made accessible in June 2024. On 26 July 2024, ČD submitted written observations on ÖBB’s submission of 24 June 2024.












34.


ČD’s Article 7 Requests of 15 August 2022 and 28 February 2024 and how access to file has been addressed in these proceedings are assessed in section 5.5.




3.3.   Written Reply to the SO









35.


DG Competition originally granted ČD and ÖBB a period of twelve weeks to submit its written reply to the SO. The original deadline to submit the reply to the SO was therefore 16 September 2022 for ČD and 14 September 2022 for ÖBB.












36.


In a request to DG Competition dated 29 July 2022, ČD asked for confirmation that the deadline for its reply to the SO has not started running or is suspended, or alternatively, for an extension of the time limit for its written reply to the SO by ‘at least additional twelve weeks’, until ‘at least 9 December 2022’.












37.


On 9 August 2022, DG competition rejected those requests.












38.


On 15 August 2022, ČD asked the Hearing Officer to confirm that the deadline for its reply to the SO was suspended, or alternatively to extend the deadline to reply to the SO until at least 23 December 2022. By e-mail of 25 August 2022, the Hearing Officer rejected the request to suspend the time limit to submit the written reply to the SO and extended it until 30 September 2022, pursuant to Article 9(1) of Decision 2011/695/EU.












39.


On 14 September 2022, ÖBB submitted its written reply to the SO (‘ÖBB SO Reply’). In its SO Reply, ÖBB requested to be heard orally.












40.


On 30 September 2022, ČD submitted its written reply to the SO (‘ČD SO Reply’). In its SO Reply, ČD requested to be heard orally.












41.


On 15 November 2022, DG Competition provided ČD and ÖBB with the non-confidential version of the other party’s reply to the SO.




3.4.   Interested third person









42.


On 2 November 2022, RegioJet requested to be heard in the above-referenced proceedings as an interested third person, and to be invited to the oral hearing.












43.


On 9 November 2022, I issued a decision where I found that RegioJet had shown a sufficient interest, within the meaning of Article 27(3) of Regulation No 1/2003, Article 13 of Regulation No 773/2004 and Article 5 of Decision 2011/695/EU, to be admitted to the procedure as an interested third person. In that decision, I asked DG Competition, pursuant to Article 13(1) of Regulation No 773/2004, to inform RegioJet in writing of the nature and subject matter of the procedure, and set a time limit within which RegioJet may make known its views in writing.












44.


On 10 November 2022, I informed ČD and ÖBB that RegioJet had been admitted as an interested third person in the proceedings.












45.


On 15 November 2022, ČD made substantial confidentiality claims in connection with the draft summary prepared by DG Competition to inform RegioJet in writing of the nature and subject matter of the procedure.












46.


On 17 November 2022, DG Competition rejected most of the claims included in that confidentiality request (20) and indicated to ČD that it was entitled to refer the matter to the Hearing Officer in case of disagreement. DG Competition requested ČD to make the referral, if any, by 21 November 2022.












47.


On 21 November 2022, ČD referred the rejection to the Hearing Officer pursuant to Article 8(2) of Decision 2011/695/EU.












48.


On 24 November 2022, pending the decision on the request mentioned in the previous paragraph, DG Competition referred RegioJet to the press release dated 10 June 2022 concerning the adoption of the statement of objections and containing some limited information on the subject matter of the proceedings (21). RegioJet was granted a deadline until 30 November 2022 to provide written comments.












49.


On 30 November 2022, RegioJet submitted written comments in connection with the press release and confirmed its willingness to attend the oral hearing.












50.


On 6 December 2022, I issued a decision where I found that it was appropriate to afford RegioJet the opportunity to express its views at the oral hearing.












51.


On 9 December 2022, I adopted a decision whereby I rejected ČD’s objections to the disclosure to the interested third person of certain information included in the Summary mentioned at footnote 20 and I indicated that the information would not be disclosed before a period of ten days has passed from the notification of the decision. That information was therefore not available to RegioJet at the time of the oral hearing, which took place on 13 and 14 December 2022 (22).












52.


On 13 December 2022, RegioJet participated at the oral hearing in the form of a presentation. Due to the confidentiality claims of ČD mentioned in paragraphs 45 and 47, RegioJet could not attend the remainder of the oral hearing proceedings, including the presentation made by the case team.












53.


As I indicated at the oral hearing, I found that situation unsatisfactory (23). I also announced at the oral hearing that on 9 December 2022 I had decided to reject ČD’s confidentiality claims concerning the Summary prepared by DG Competition (24).












54.


On 26 January 2023, RegioJet was provided access to the Summary and invited to make comments by 10 February 2023. On 10 February 2023, RegioJet submitted those comments. On 21 March 2023, ČD submitted a response to those comments.




4.   ORAL HEARING AND SUBSEQUENT PROCEDURE

4.1.   Oral Hearing









55.


The oral hearing took place on 13 December and in the morning of 14 December 2022. The oral hearing was conducted in English, following the Parties’ indication that they intended to present their views in English only and that no interpretation into Czech or German would be needed from their side (25).












56.


Consistent with point 108 of the Antitrust Best Practices Notice, the continuous presence of senior management of DG Competition was ensured by the attendance of [….] (Deputy Director-General for Antitrust) and [….] (Director COMP/F). [….] (Cabinet of Ms Vestager) also attended. Other representatives on behalf of the Commission included: [….] (Case Manager, Head of Unit COMP/F1) and [….] (Case Manager, Deputy Head of Unit COMP/F1) and the other members of the case team and Chief Economist Team, one member of the Legal Service and two representatives of the Directorate-General for Mobility and Transport (DG MOVE). The oral hearing was furthermore physically attended by representatives of the competition authorities of two Member States, and remotely by the representatives of the competitions authorities of five additional Member States (26).












57.


The following paragraphs include a summary of the Parties’ views which were presented at the oral hearing.












58.


As described in paragraph 52, RegioJet made a presentation, based on the information indicated in paragraph 48, and could not stay for the remainder of the oral hearing.












59.


In its presentation, RegioJet indicated that it had little information on the subject-matter of the case and had obtained it from the media. From 2009 to 2012, RegioJet could buy numerous coaches from ÖBB and the cooperation was excellent. From 2012, it became difficult for RegioJet to obtain used coaches from ÖBB and prices increased significantly. As a result, RegioJet did not buy coaches from ÖBB after 2012. RegioJet claimed that, as a result, its expansion and new projects had been delayed, and its capacity to reduce its costs per seat had been limited. From 2017, after RegioJet started operations on the Prague-Vienna route, ÖBB stopped selling used coaches to any undertaking.












60.


In its presentations, ÖBB argued that it stood by its leniency application and that its corporate statements were accurate. However, it objected to certain findings of the Commission, which would go beyond the corporate statements. In particular, ÖBB contested the alleged start of the infringement (i.e., 9 May 2012). It claimed that the ‘Common Challenges’ document was not a sufficient basis to find that the infringement started on 9 May 2012. According to ÖBB, no agreement was reached prior to 7 September 2012.












61.


In addition, ÖBB contested the approach to attribute to ÖBB half of ČD’s turnover generated on the Czech market for long distance passenger services for the purpose of determining the basic amount of the fine. ÖBB claimed that the intended approach had no basis in point 18 of the Guidelines on Fines, (27) which did not apply directly, nor by analogy. ÖBB claimed that it had never been active on the Czech domestic market and there was no sufficient evidence of a potential competitive relationship on that market. In any case, ÖBB claimed that not all of Czech long-distance turnover of ČD was relevant and the Commission failed to properly identify the affected market.












62.


Also, ÖBB claimed that ČD and ÖBB had different roles, interests and contributions and those should be considered by the Commission in setting the fines. In particular, ÖBB criticised the Commission for ignoring the leading role played by ČD and pro-competitive aspects of the general policy of ÖBB to sell and not scrap used rolling stock. Moreover, ÖBB submitted that it had no economic interest in the Czech market. In addition, ÖBB submitted that its top management was not involved and that the infringement was implemented exclusively at operational level.












63.


ÖBB thus claimed that the proposed attribution of half of ČD’s Czech turnover to ÖBB violated the principles of non-discrimination and proportionality.












64.


In its presentations, ČD alleged several errors of fact and of assessment in the SO.












65.


From a factual perspective, ČD argued that there was no evidence of any wrongful arrangement or collusion between ÖBB and ČD in the file. ČD claimed that there was no direct evidence of a cartel and the SO derived its existence from fifteen separate events, three of which were outside the relevant period of the alleged infringement, six were irrelevant or contradicting the alleged infringement and five concerned, at least partially, wagons sold to RegioJet. ČD claimed that the Commission distorted the facts by making a selective reading of the evidence and events. ČD claimed that ÖBB sales were subject to an exclusivity agreement (the right of first refusal) with RegioJet or freely decided by ÖBB and subject to the highest bid principle. ČD submitted that, in the context of the sales that may be considered relevant, ÖBB sold 99 wagons to RegioJet and only 45 to ČD.












66.


Also, ČD claimed that ÖBB’s leniency application was not trustworthy and the Commission should not have relied on it. In particular, ČD submitted that the chronology of events shows the suspicious nature of ÖBB’s confession and that the leniency application might have been lodged to solve multiple unrelated cases. ČD claimed that the Commission coerced or unduly influenced ÖBB to change its leniency application (28).












67.


Moreover, ČD claimed that there was no cartel in the form of a collective boycott. In particular, ČD claimed that there was no horizontal relationship between ČD and ÖBB in the relevant period on any market and, in particular, on the upstream market for second-hand wagons and the downstream market for long-distance rail transport. In particular, ČD claimed that ÖBB and ČD were not potential competitors in the Czech domestic passenger transport markets, nor regarding the Prague-Vienna route where they cooperated under the Railjet project. ČD criticised the Commission for not having analysed properly if the Parties were potential competitors and, in particular, their ability, incentives and intent to enter the relevant markets.












68.


ČD also claimed that the classification of the alleged conduct as a by-object restriction was incorrect and therefore the Commission should have assessed its actual effects and analysed the relevant markets. ČD alleged that, in the counterfactual situation, RegioJet could potentially have bought at most six additional wagons, which could have resulted in one additional trainset. Thus, in any event, the alleged agreement could not have had an exclusionary effect on RegioJet according to ČD. ČD claimed that RegioJet was not limited in its wagon purchases and had plenty of other options where to purchase passenger wagons.












69.


In addition, ČD claimed that, the relation of ČD and ÖBB being purely vertical, the alleged agreement should have benefitted from the vertical block exemption as a non-reciprocal vertical agreement, taking into account the market shares of the Parties, as well as from the de minimis doctrine. Furthermore, ČD alleged that the alleged agreement should have been assessed as an ancillary restraint to the Railjet cooperation.












70.


Also, ČD claimed that the alleged agreement did not form a single and continuous infringement, as the required elements were missing, i.e., an overall plan, an identical object of individual actions, the contribution to a common objective by each undertaking’s conduct, and the knowledge or foreseeability by ČD of ÖBB’s actions.












71.


In addition, ČD claimed that it could not reasonably foresee that the alleged agreement would be viewed as anticompetitive and ČD’s conduct was neither intentional nor negligent. Accordingly, no fine should be imposed. In any event, the method of determining the fine was flawed and incorrect concerning the value of sales, gravity, and the length of the alleged infringement.












72.


Finally, in its presentations, ČD alleged also some procedural errors, which are described and assessed in the following section.




4.2.   Procedure after the Oral Hearing









73.


On 31 January 2023, ČD submitted additional comments on certain developments that took place after ČD SO Reply and, in particular, on the ÖBB SO Reply and the submission made by RegioJet on 30 November 2022 (29).












74.


As indicated in paragraph 31, on 11 June 2024, DG Competition provided ČD and ÖBB with access to the non-confidential version of the Annexes of the other Party’s reply to the SO.












75.


On 20 September 2024, DG Competition had a state of play meeting with ÖBB and on 25 September 2024 with ČD.












76.


On 2 October 2024, ČD requested DG Competition to arrange for a meeting pursuant to point 70 of the Antitrust Best Practices Notice (30) and to be ‘properly informed about the updated fine-setting methodology and to get an adequate opportunity to comment thereon’. On 9 October 2024, DG Competition rejected those requests.












77.


On 10 October 2024, ČD sent a letter to the Hearing Officer, which summarised and restated a number of procedural complaints. In particular, ČD claimed that, as made apparent from the state of play meeting of 25 September 2024, the decision which the Commission plans to adopt may comprise ‘matters of law and fact that were not adequately communicated to CD’ (in particular the fine-setting methodology), ‘a second oral hearing is necessary’, the investigation has suffered from ‘serious errors’ which have not been ‘rectified’, the procedural errors and in particular the alleged failure to disclose meeting records could entail the annulment of the decision, and a meeting pursuant to point 70 of the Antitrust Best Practices Notice should be arranged. On 18 October 2024, the Hearing Officer responded to that letter.




5.   PROCEDURAL ARGUMENTS









78.


This section discusses the procedural arguments made by the Parties and, specifically by ČD, (31) during the oral hearing, in the SO Reply and in several submissions made after the SO Reply (32).




5.1.   Coercion or undue influence concerning ÖBB’s leniency application and corporate statements









79.


Among ČD’s claims concerning ÖBB’s leniency application and corporate statements, (33) ČD claimed that the Commission coerced or unduly influenced ÖBB to change its leniency application to fit into the Commission’s narrative (34). In general, ČD claimed that they are not trustworthy, as shown by their inconsistency, the existence of evidence contradicting them and the context of their submission. ČD claimed that there are indicia in certain minutes of meetings of a quid pro quo arrangement between the Commission and ÖBB in order to solve multiple unrelated cases.












80.


The accusation by ČD that the Commission may have coerced or unduly influenced ÖBB into changing or adjusting its leniency application was a very serious one.












81.


I therefore asked ÖBB at the oral hearing if it ever experienced or felt coercion or pressure from the Commission, as alleged by ČD. ÖBB replied unequivocally that it did not.












82.


Moreover, the elements pointed out by ČD as showing the existence of coercion or undue influence by the Commission concerning ÖBB’s leniency application and corporate statements appear to me to be speculative. Indeed, the existence of possible contradictions in the corporate statements, the sequence of events concerning their submission and the references to various cases being discussed at meetings between ÖBB and the Commission do not necessarily amount to indicia of any coercion or of a quid pro quo arrangement and in any event do not allow to conclude in that connection.




5.2.   Impartial assessment of evidence









83.


ČD claimed that the Commission has infringed the principle of good administration by not assessing the evidence correctly and impartially, but with a prosecutorial bias (35). According to ČD, the Commission relied too heavily and in an uncritical manner on the leniency application (which as mentioned it considers untrustworthy), and took insufficient account of facts and evidence in contradiction with that application and SO conclusions, while exaggerating or misinterpreting other evidence in support of its allegations. ČD claimed that the Commission should have investigated the alleged conduct further and did not meet the requisite standard of proof. In particular, ČD claimed that the Commission should have sought the views of key ÖBB personnel (in particular, […]) and allow their cross-examination.












84.


Article 41 of the Charter sets out the right to good administration, under which the Commission is obliged to act impartially, fairly, and in a timely manner. In administrative proceedings, the principle of good administration requires the competent institution to examine carefully and impartially all the relevant aspects of the individual case (36). However, the Commission has discretion as to whether it is appropriate to adopt further investigative measures (37). Failure to further evaluate certain arguments and further investigate can be explained by the Commission’s exercise of this discretion. It is therefore for the undertakings to prove that the Commission’s conclusions could only be explained by it being biased and not by the legitimate exercise of its discretion in conducting the investigation (38). The requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the institution concerned (39). In addition, European Union law lays down a system enabling the courts to review Commission decisions, including decisions relating to procedures under Article 101 TFEU, which provides all the guarantees required by Article 47 of the Charter (40).












85.


Moreover, it is established case law that the Commission can base its finding of an undertaking’s infringement on statements made by other incriminated undertakings (41). Undertakings seeking to benefit from the application of the Leniency Notice in order to obtain a reduction in the fine do not necessarily have an incentive to submit distorted evidence. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the person seeking to benefit, and thereby jeopardise its chances of benefiting fully under the Leniency Notice (42). In addition, where a person admits having committed an infringement and thus admits the existence of facts going beyond those which could be directly inferred from the documentary evidence, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person has resolved to tell the truth. Thus, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (43).












86.


ČD disagreed with the Commission’s assessment and choice of relevant evidence in the SO. ČD made no specific allegations concerning indications of bias on the side of the Commission or any of its members but seemed to think that the Commission was misled. Even though ČD submitted that the Commission relied in an uncritical manner on ÖBB’s leniency application, it also acknowledged that the Commission examined other relevant evidence. Therefore, not only is the Commission allowed to rely on leniency applications, in the current case it also conducted its own analysis of the available evidence to reach its conclusions. The allegations that the leniency statements were incorrect are a matter of substance. In any case, the mere fact that the Commission disputes or rejects an undertaking’s arguments is not in itself proof of a biased assessment (44).












87.


ČD also claimed that the Commission should allow ČD to cross-examine key ÖBB personnel (in particular, […]). In addition to the above, I note in that connection that the Commission does not have the power to summon or compel anyone to appear as a witness in competition proceedings and Union competition law does not provide for the possibility to cross-examine witnesses.




5.3.   Length of proceedings









88.


ČD claimed that the Commission’s investigation in this case was disproportionately long and had deprived ČD of the ability to defend itself (45). ČD claimed that exculpatory evidence was unavailable due to the length of the proceedings, as the proceedings concern events which took place around seven to ten years ago and personnel who left ČD. Also, ČD claimed that any fine should be significantly reduced on account of the long duration of the proceedings.












89.


Compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy constitutes a general principle of EU law and has been reaffirmed by Article 41(2) of the Charter (46). The reasonableness of the length of the proceedings is to be appraised in the light of the circumstances specific to each case and, in particular, its context, the conduct of the parties during the procedure, what is at stake for the various undertakings concerned and its complexity (47). A failure to act within a reasonable time can constitute a ground for annulment of a decision finding infringements, provided that it has been established that the breach of that principle adversely affected the rights of defence (48). Such an infringement of the reasonable time principle, if established, cannot lead to a reduction of the fine imposed (49). The Guidelines on Fines do not provide for an obligation on the Commission to reduce a fine in a case where the procedure has been unreasonably long, (50) but the Commission, in the exercise of its discretion in fixing the fines, could make such a reduction (51). Parties who have suffered prejudices as a consequence of the excessive length of proceedings may bring an action for damages (52).












90.


As regards the reasonableness of the length of the proceedings and the conduct of the applicant, it should be noted that ČD requested substantial deadline extensions on several occasions during the procedure, for example, as regards its reply to the SO and the submission of observations on newly accessible information (53) and called on the Hearing Officer on several occasions to resolve questions relating to confidentiality and access to file (54). Also, at the outset of the case there were discussions between the Commission and the Parties, aiming towards a settlement, which should be taken into account in assessing the reasonableness of the length of the proceedings (55). I would also take into account that the initial inspection decision in this case, adopted in 2016, was subject to an action for annulment brought by ČD, and ultimately resolved by the Court of Justice in January 2020, and that the investigation took a decisive step forward after the leniency application in March 2019. ČD could not have been unaware that these circumstances, including the conduct of the parties during the administrative procedure, would necessarily slow down the investigation (56). All in all, while the proceedings have been relatively long in the present case, it appears that the Commission did not remain inactive at any point during the investigation. On balance, I am of the opinion that the reasonable time principle has not been breached.












91.


Moreover and in any event, ČD should have taken appropriate measures to preserve such evidence as might reasonably be available to them, especially when it became aware of the first investigative measures (57). In this regard, it should be noted that ČD was informed about the subject matter of the investigation at the latest by the Commission’s inspection decision of June 2016, (58) i.e., approximately five months after the end of the period of the alleged infringement.












92.


Insofar as ČD’s claim seeks solely a reduction of the fine to be imposed on it, based on the excessive length of the proceedings, the Commission is under no obligation to provide such reduction, as explained above in paragraph 89. However, the Commission may do so in the exercise of its discretion and in the light of the circumstances specific to each case.




5.4.   Minutes

5.4.1.   ČD’s claims









93.


ČD claimed in its reply to the SO that the file does not contain sufficiently detailed records of meetings, which seem to have taken place in relation to this case (59). First, ČD claimed that the minutes of meetings between ÖBB and the Commission which are in the file (60) only provide a cursory account of what had been discussed. In addition, ČD claimed that there could have been meetings between the Commission and ÖBB (or other parties) for which there are no minutes or records, such as the discussion between ÖBB’s CEO and the Executive Vice President Vestager of 19 December 2018 (61). ČD invoked in that connection the Google Android, Qualcomm and Intel case-law (62).












94.


In view of those claims, I suggested DG Competition to verify if there were minutes, recordings or any materials concerning the meeting between ÖBB’s CEO and the Executive Vice President Vestager of 19 December 2018, and if there had been other meetings or oral exchanges with ÖBB or with third parties other than those for which there is accessible information.












95.


As a result of those verifications, on 25 July 2023 DG Competition provided ČD with minutes of the meeting between EVP Vestager and the CEO of ÖBB on 19 December 2018 (together with the presentation given at that meeting), minutes of the call between the case-team and ÖBB of 22 March 2021; and minutes of the call between the case team and [....] of 19 June 2017 (the ‘Minutes Newly Accessible to ČD’). In addition, on 22 December 2023 DG Competition provided ÖBB with minutes of the meeting between EVP Vestager and the CEO of ČD of 23 April 2019 (the ‘Minutes Newly Accessible to ÖBB’ and together with the Minutes Newly Accessible to ČD, the ‘Newly Accessible Minutes’). The Newly Accessible Minutes were prepared further to ČD’s request, on the basis of contemporaneous internal documents available in DG Competition records and then made available for approval to the undertakings involved.












96.


In the context of the preparation of the Minutes Newly Accessible to ÖBB, where ČD was asked to comment on the draft minutes under preparation, ČD submitted the following observations to DG Competition on 14 July 2023. ČD claimed that it is ‘unable to properly determine what had been exactly discussed at the meeting after such a long period of time and therefore cannot for objective reasons adequately review, supplement, and/or confirm the draft minutes received from the Commission’ (63). ČD claimed that it could comment on several aspects of the draft minutes ‘in light of the existing records’ but could not comment on some other aspects. ČD claimed that the requirement of case-law that all contacts are duly documented ‘cannot be fulfilled by creating some ex-post “minutes” of the contacts (meetings) after such a long time’. Also, ČD claimed that ‘the meeting currently addressed is probably not the only meeting which the Commission failed to record properly’ and mentioned in this connection the meeting between EVP Vestager and ÖBB’s CEO of 19 December 2018 as well as two calls between ČD and the Commission (64).












97.


On 22 August 2023, ČD submitted observations concerning the access given to the Minutes Newly Accessible to ČD. ČD objected that those minutes ‘were created ex post facto, many years after the respective contacts have taken place’ and ‘such course of action is unsuitable to rectify the errors vitiating the [p]roceedings’ (65). ČD claimed that, like the other minutes in the file, they only provide a ‘cursory’ account of the exchanges in contravention of applicable case-law (66). Also, ČD claimed that the minutes of the call between the case-team and ÖBB of 22 March 2021 refer to another meeting with ÖBB, held on 16 March 2021, for which there are no minutes in the file (67). Moreover, ČD claimed that minutes of the meeting between EVP Vestager and the CEO of ÖBB on 19 December 2018‘provide only a very general and superficial reference to multiple investigations’ with no ‘clear record’ of the cases described in a follow-up email communication concerning that meeting (68). ČD claimed that, accordingly, the minutes ‘do not provide a true, precise and detailed account of the exchanges in question’ (69). Finally, ČD objected that the minutes were being made accessible ‘at an advanced stage of the proceedings’ after the submission of its reply to the SO and oral hearing and before resolving ČD’s Article 7 Request of 15 August 2022, without ‘any meaningful information about the purpose of the current disclosure’ nor a supplementary statement of objections or letter of facts (70).












98.


On 10 October 2024, ČD reiterated in its letter to the Hearing Officer the alleged failures in recording meetings (71).




5.4.2.   Case law on the recording of interviews pursuant to Article 19 of Regulation No 1/2003









99.


According to the case law of the EU Courts, the Commission is required to record, in a form of its choosing, any interviews which it conducts, under Article 19 of Regulation No 1/2003, for the purpose of collecting information relating to the subject matter of an investigation (72).












100.


The Court of Justice has emphasised that ‘it is important to note that a distinction must be drawn on the basis of the subject matter of the interviews carried out by the Commission, and that only those seeking to collect information relating to the subject matter of a Commission investigation fall within the scope of Article 19(1) of Regulation No 1/2003 and, therefore, the obligation to record’ (73). Meetings and calls with third party information providers that fulfil this condition are to be considered ‘interviews’ within the meaning of Article 19 of Regulation No 1/2003.












101.


As regards the obligation to record, the EU Courts have consistently held that it is ‘not sufficient for the Commission to make a brief summary of the subjects addressed during the interview’, but rather ‘the Commission must be in a position to provide an indication of the content of the discussions which took place during the interview, in particular the nature of the information provided during the interview on the subjects addressed’ (74).












102.


As regards the inferences to be drawn from procedural errors in relation to records of interviews in the sense of Article 19, the General Court in Qualcomm, Google Android and a recent judgment of 18 September 2024 clarified that it is necessary to establish whether, in the light of the specific factual and legal circumstances of each case, the undertaking has demonstrated adequately that ‘it would have been better able to ensure its defence had there been no procedural error’ (75). If that is not demonstrated, no infringement of the rights of defence can be established (76).












103.


Such an infringement, according to the General Court, ‘would be demonstrated where the content of undisclosed evidence may be neither determined nor determinable’, as in this case ‘the undertaking cannot be expected to bear the impossible burden of proving the content of such document’ (77).












104.


On the other hand, ‘where the content of the evidence to which access was restricted can be determined a posteriori, the undertaking cannot be relieved of the burden of proving that it did not have access to the incriminating or exculpatory evidence and of explaining the inferences to be drawn from that with regard to the exercise of its rights of defence. That is so where the undertaking can at least give an indication of the authors and nature and content of the documents which have been withheld from it.’ (78)













105.


The General Court has also clarified that, in case of undisclosed incriminating evidence, the undertaking must show that ‘the outcome of the procedure would have been different, assuming that that incriminating evidence had been disclosed’; while in the event of undisclosed exculpatory evidence, the undertaking concerned ‘must establish that it would have been able to use such evidence for its defence, in the sense that, had it been able to rely on it during the administrative procedure, it would have been able to invoke evidence which was not consistent with the inferences made at that stage by the Commission and therefore could have had an influence, in any way at all, on the assessments made by the Commission in its decision’ (79).












106.


On this basis, the ‘test’ consists in, first, an assessment of the Commission’s compliance with its duty to record any interviews which it conducted, under Article 19, for the purposes of collecting information relating to the subject matter of an investigation; and second, if a procedural irregularity had occurred, a case by case assessment of whether, in the light of the factual and legal circumstances specific to the case, the undertaking has demonstrated adequately that it would have been better able to defend itself had there been no irregularity.




5.4.3.   Assessment









107.


I note that, in relation to the obligation to record interviews, ČD did not submit any requests or complaints to me, be it under Article 7 of Decision No 2011/695/EU or otherwise, until its letter of 10 October 2024. In any event, the Hearing Officer is in charge of checking compliance of the procedures conducted by the Commission in competition matters with the rights of defence. Pursuant to Article 16(1) and Article 17(1) of Decision 2011/695/EU s/he prepares a final report on the respect for the effective exercise of procedural rights at any stage of the proceedings that will be presented to the Commission together with the draft decision. The Hearing Officer can therefore not ignore a complaint such as the one at hand, where a party alleges that the minutes provided by the Commission do not satisfy the requirements of Article 19 of Regulation No 1/2003, as interpreted by the case law. Indeed, in raising these points, ČD alleges that its rights of defence have been breached.




(a)   Whether the minutes at hand relate to meetings qualifying as ‘interviews’ under Article 19 of Regulation No 1/2003









108.


As regards the duty to record interviews and as just recalled in section 5.4.2, the obligation to record under Article 19(1) of Regulation No 1/2003 is only applicable to interviews in which the Commission seeks to ‘collect information relating to the subject matter of a Commission investigation’ (80).












109.


It is therefore clear that not all exchanges between the Commission and external interlocutors fulfil these criteria.












110.


Specifically, in my view, exchanges on procedural or formal aspects that do not concern the substance of a case (such as, for instance, meetings that deal only with confidentiality claims) should not be considered as interviews within the meaning of Article 19(1) of Regulation No 1/2003. These exchanges are not conducted for the purpose of collecting information relating to the subject matter of the proceedings; they do not yield information that could serve as ‘indicia’ or ‘evidence’ that can inform the substantive assessment of the case. It is that latter type of information that must be recorded in proper minutes, so that it can be made accessible to the undertakings subject to competition proceedings and enable them to defend themselves fully with regard to that information.












111.


Moreover, the interviews in question have to relate to the ‘subject matter of the proceedings’. According to established case law, it is ‘permissible to exclude from the administrative procedure evidence which has no relation to the allegations of fact and of law in the statement of objections and which therefore has no relevance to the investigation’ (81). This applies also with regard to meetings where the substance of the discussions is unrelated to the subject matter of the investigation (82).












112.


Against this background, I have reviewed the list of oral exchanges provided to me by DG Competition, and consider that the exchanges mentioned there fall outside the scope of Article 19 of Regulation No 1/2003. Indeed, these exchanges typically refer to (i) confidentiality or access to certain documents, (ii) the communication policy of the Commission and news to be published in connection with the proceedings, (iii) information and clarifications sought by the parties from the Commission, for example on its requests for information and the leniency procedure, (iv) organisational aspects, for example the granting of language waivers and powers of attorney and (v) information unrelated with the subject-matter of the investigation.












113.


As regards ČD’s claim that the Minutes Newly Accessible to ČD of the call between the case-team and ÖBB of 22 March 2021 refer to another meeting with ÖBB, held on 16 March 2021, for which there are no minutes in the file, I note that such meeting of 16 March 2021 corresponds to a settlement meeting between the Commission and ÖBB, as also mentioned in the Minutes Newly Accessible to ČD of 22 March 2021. Those minutes are to be disregarded by the Commission and cannot be used as evidence in the event the Commission adopts a statement of objections which does not endorse the parties’ submissions, pursuant to points 27 and 29 of the Settlement Notice, as has been the case in these proceedings. Also, ČD refers in its letter of 10 October 2024 to a meeting between its management and the Commissioner in charge of competition, which took place in September 2020 and which may not have been recorded. I have asked DG Competition about that meeting and been provided with internal minutes of that meeting, which corresponds to a call held on 21 September 2020. The internal minutes show that the meeting mainly referred, as regards this case, to the possibility of settling it (83).












114.


Therefore, I consider that there are no exchanges other than the ones covered by the Newly accessible Minutes which would qualify as interviews within the meaning of Article 19 of Regulation No 1/2003.




(b)   Whether there is a procedural irregularity as regards the minutes of calls and meetings presumably falling under Article 19 of Regulation No 1/2003









115.


With regard to the minutes in the file which are unsatisfactory according to ČD ([…] and the Newly Accessible Minutes), it appears, in my view, that in general the underlying meetings or calls concerned (at least in part) discussions related to the subject matter of the proceedings, and in several of these contacts the Commission may have collected from the information provider information falling within the scope of the proceedings (84).












116.


In relation to these minutes, it is therefore necessary to analyse ČD’s claims that they are too ‘cursory’ to constitute proper records of interviews; and were belatedly recorded in the file and shared with the information provider for approval.












117.


With regard to the argument that the minutes are too cursory to constitute accurate records of the discussions which took place, I note that the minutes which are the subject of […] and the Newly Accessible Minutes, although in a brief manner, seem sufficiently specific to reflect the ‘content of the discussions’ and in particular the ‘nature of the information provided during the interview on the subjects addressed’, and it may be possible to consider that they constitute an accurate record of the interviews which took place. In particular, although the description of the information provided by DG Competition in those meetings may be quite succinct, the minutes allow to identify the content of the discussions and nothing suggests that the parties may have provided other information than the one which is mentioned in the minutes.












118.


Finally, ČD’s argument, according to which the Commission did not prepare the relevant minutes at the time of the relevant meetings or shortly after they took place, giving rise to doubts as to their accuracy, needs to be considered.












119.


I recall that the interpretation of Article 19 of Regulation No 1/2003 was clarified for the first time by the Court of Justice in 2017, with the delivery of the Intel judgment. Subsequently, in 2022 the General Court in Google Android provided further clarification as regards the relevance of a timely production or approval of minutes. The General Court held that certain cursory notes of meetings, drawn up several years after the meetings took place, were to be considered ‘too late and too cursory to be capable of constituting the record of an interview in the sense prescribed by Article 19(1) of Regulation No 1/2003’; and specified that, going forward, it would be ‘useful and appropriate for the record of each interview […] to be made or approved at the time when that interview is held or shortly afterwards’ (85). In its recent judgement of 18 September 2024 in a case involving Qualcomm, the General Court clarified that providing late access to the notes of meetings does not in itself infringe the rights of defence (86).












120.


In this respect, I note that the minutes which correspond to […] were prepared at the time of the relevant meetings and, in the event of the minutes under […], approved by the undertaking concerned at that time (87). As regards the Newly Accessible Minutes, I understand from DG Competition that they were not finalised contemporaneously, but with delay compared to when the meetings or calls took place, although on the basis of contemporaneous notes taken by DG Competition officials attending the meetings or calls.












121.


Similarly to the situation in Google Android, the fact is that the Newly Accessible Minutes were drawn up much after the meeting in question, in two cases several years after (88). The case law is not clear on whether the belated preparation of minutes is a factor in itself sufficient to conclude that the minutes cannot constitute valid records of the underlying interviews. As noted above, for instance, the General Court concluded in this sense only in relation to minutes that were both ‘too cursory’ and ‘too late’ to constitute proper records of interviews (89).












122.


That question does not need to be decided here, given that, even if the minutes under consideration were considered too cursory and/or too late to constitute proper records of interviews, this would only lead to the conclusion that the Commission had committed a procedural irregularity by failing to fully comply with its obligation to record the interview under article 19 of Regulation No 1/2003. It would still be necessary to determine whether ČD has adequately demonstrated that it would have been better able to ensure its defence absent these procedural errors.




(c)   Whether the procedural irregularities resulted in a breach of ČD’s rights of defence









123.


As set out above, for a breach of an undertaking’s rights of defence to be established, it has to be shown that not only an interview falling within the meaning of Article 19 of Regulation No 1/2003 was not properly recorded, but also that this failure impinged on the party’s ability to defend itself. It generally falls on the undertaking under investigation to prove that it did not have access to incriminating or exculpatory evidence and to explain the inferences to be drawn from that with regard to the exercise of its rights of defence (see paragraphs 102 to 106 above) (90).












124.


In the context of assessing such claims, the General Court has accepted that in certain instances, upon individual assessment, other documents in the file to which the undertaking concerned had access could allow the parties to ascertain what was discussed during an interview, absent appropriate minutes. This was the case, particularly, in Google Android, where the General Court considered that, in respect of most of the interviews for which Google had received only cursory notes (not capable of constituting a record of an interview), the ‘content of what was discussed during that interview’ was nonetheless ‘fully reflected in specific documents in the file, to which Google […] acknowledged having had access’ (91). The General Court therefore stated that Google was ‘able to obtain information from the Commission about the substance of what was discussed during those interviews, particularly as regards the nature of the information provided on those occasions on the topics discussed’ (92).












125.


The General Court reached the same conclusion in respect of certain notes that contained ‘no reference […] to any document in the file’, as it was ‘nevertheless possible for Google to place it in context with the information provided in relation to two other interviews conducted with the same undertaking […] on the same subject’. These two other interviews, the minutes of which were ‘approved by the undertaking concerned’, referred to ‘documents contained in the investigation file reflecting the content of what was discussed on those occasions. The General Court therefore concluded that Google was “aware of the views of that undertaking in the context of the investigation” (93).












126.


In light of this case law, it must be observed that ČD had access to supplementary documents reflecting the content of the discussions for the meetings under consideration, which are the subject of the Minutes Newly Accessible to ČD, or was otherwise aware of information allowing it to place the meetings in context. Specifically:






—


with regard to the meeting between EVP Vestager and the CEO of ÖBB on 19 December 2018, the minutes of that meeting include the power point presentation made at that time by ÖBB. Moreover, it is apparent that most of the meeting was unrelated to the scope of the current proceedings and referred instead to general considerations on the Austrian rail transport market. The status quo of the current case and investigations, as well as the possibilities to cooperate were also discussed in that meeting. As that meeting was followed by a technical one on 15 January 2019 for which there are contemporaneous minutes, ČD is able to put the information in context and understand its content.










—


with regard to the call between the case-team and ÖBB of 22 March 2021, it should be noted that the Minutes Newly Accessible to ČD of that call were prepared and recorded two years after the meeting took place instead of several years after. Moreover, it is apparent from the minutes that the call took place in the framework of the settlement procedure and was a follow up to a settlement meeting with ÖBB, which could allow to put the call into context and implies that the any evidence collected should be disregarded by the Commission, pursuant to points 27 and 29 of the Settlement Notice. Moreover, the minutes show that the meeting was requested by ÖBB to obtain information on the settlement procedure, including aspects related with the possible fines in this type of proceedings, rather than by the Commission to collect information relating to the subject matter of the proceedings;










—


with regards to the call between the case team and [....] of 19 June 2017, it is apparent that the purpose of the call was to clarify to [....] some questions concerning a request for information that such company had just received. In that context, the role and functions of [....] in the sale of wagons were also discussed. In any event, such call was followed by the reply of [....] to the request for information, (94) which would reflect the aspects discussed at that call. Thus ČD was able to put the information in context and understand its content through the subsequent written submissions made by [....] in reply to the request for information. Like for the other Newly Accessible Minutes, the content of these minutes is based on contemporaneous records made by DG Competition in internal notes.
















127.


Moreover, it should be noted that ČD has been able to comment on the Minutes Newly Accessible to ČD in its observations dated 22 August 2023 and devotes section III of those observations to claim that the minutes support its defence. This confirms that ČD was able to present its views on any exculpatory evidence which might have been exchanged in these meetings.












128.


Furthermore, and in any event, ČD has not established that, absent possible procedural errors regarding the Newly Accessible Minutes, it would have been better able to ensure its defence. Essentially, in relation to each of the minutes that it considers to be insufficient, ČD claimed in generic terms, that they “do not provide a true, precise, and detailed account of the exchanges in question” (95). In relation to the minutes in question, it thus claimed that the lack of detailed minutes did not allow ČD to determine with certainty which issues or information were discussed.












129.


However, ČD did not bring forward elements to demonstrate that it did not have access to incriminating evidence (and that “the outcome of the procedure might have been different, assuming that that incriminating evidence had been disclosed”), nor that it did not have access to exculpatory evidence that it would have been able to invoke and that “could have had an influence, in any way at all, on the assessments made by the Commission in its decision” (96).












130.


Similarly, as regards the minutes of the meeting between EVP Vestager and the CEO of ČD of 23 April 2019, ÖBB has not claimed, and even less demonstrated, that absent possible procedural errors regarding the Newly Accessible Minutes, it would have been better able to ensure its defence. In light of the content of those minutes (which refer mostly to procedural aspects of the case) and the context of the meeting (which was followed by a technical meeting on 23 May 2019 for which there are minutes agreed with ČD, I see no apparent reason that it would have.












131.


As regards the absence of minutes concerning calls between ČD and the Commission, even if those calls would constitute interviews, ČD cannot claim that it was not aware of their content and the subjects discussed with the Commission (97). ČD was therefore perfectly able to use any exculpatory evidence which might potentially have emerged during those contacts in order to be better able to ensure its defence (98). In addition, in such a situation, it might have been expected that ČD would have taken the precaution of itself sending the Commission a summary of the contact in question, in order to leave a written record of any potential exculpatory evidence in the file (99).












132.


Therefore, I consider that even if there were any procedural errors in respect of the records of interviews as complained by ČD, these would not, in the circumstances of the present case, result in an infringement of the parties’ rights of defence.




5.5.   Access to file

5.5.1.   ČD’s claims pursuant to Article 7 of Decision 2011/695/EU and the decision adopted









133.


As mentioned in paragraph 16, on 15 August 2022, the Hearing Officer received a first request from ČD for further access to file – that is, ČD’s Article 7 Request of 15 August 2022. That request followed a prior request for further access made by ČD to DG Competition on 29 July 2022, which DG Competition rejected in full on 9 August 2022.












134.


ČD’s Article 7 Request of 15 August 2022 raised a wide range of complaints as to the extent and the ways in which access to file has been granted in these proceedings. These are formulated as general concerns affecting the entirety of the file, then illustrated with reference to particular documents which, according to ČD, had unduly been made inaccessible or too extensively redacted. Particular issues raised by ČD include, for example, lack of access to potentially exculpatory evidence; undue redaction of information which is no longer confidential as a result of the passage of time; undue redactions of personal data; undue classification of certain documents as internal or non-accessible, such as leniency correspondence or correspondence discussing confidentiality redactions; poor substantiation of confidentiality claims; poor organization of the file (allegedly limiting its usability); and DG Competition adopting a more lenient approach towards other information providers than towards ČD when dealing with their respective confidentiality claims.












135.


As a result of my intervention before DG Competition and the information providers, ČD ultimately obtained access to less redacted versions or fully accessible versions of 22 documents, (100) on 23 and 25 November 2022, of 2 documents (101) on 20 September 2023, and of 33 documents (102) on 18 October 2023, covering, in particular, information on the economic value of wagons and the prices offered in sales processes (with the exception of depreciation figures and book value figures), ÖBB internal wagons sales procedures and the names and positions of the individuals mentioned in ÖBB documents (103).












136.


The remainder of ČD’s Article 7 Request of 25 August 2022 was addressed through the Article 7 Decision of 1 December 2023 as follows.












137.


The Article 7 Decision of 1 December 2023 recalled that, in order for the Hearing Officer to perform his function under Article 7 of Decision 2011/695/EU, any request must clearly identify all information to which further access is sought and provide sufficient reasoning (104). The Article 7 Decision of 1 December 2023 therefore disregarded claims made in the abstract about unspecified documents in the file, for which ČD had not provided the document identification number (‘ID’) given by DG Competition. The Article 7 Decision of 1 December 2023 assessed, for each identified document, ČD’s claims and, in particular, whether further access was necessary for the proper exercise of ČD’s right to be heard. If the information to which further access is sought was confidential, the Hearing Officer was called upon to strike a balance between the need for protecting such confidential information and the requirement of a proper exercise of the right to be heard. That assessment took account of, in particular, the degree of sensitivity of the information and the usefulness of the incremental access sought for the proper exercise of ČD’s right to be heard, in light of the objections raised in the SO. The results of that assessment in connection with each document were included in the Annex of the Article 7 Decision of 1 December 2023.












138.


As regards the documents covered by ČD’s Article 7 Request of 25 August 2022 and which were filed under under non-accessible categories 2.7.5 (‘Access to File, Correspondence with Parties and Document Owners on Confidentiality and Access’) and 2.2.6 (‘Leniency, Correspondence with Parties’), I verified that the documents were properly filed and did not contain any information necessary for ČD to properly exercise its right to be heard. Category 2.7.5 is used for filing exchanges with information providers on the possible confidential nature of the information submitted to the Commission. The documents under that category have no inherent probative value and are generally non-accessible in order to protect the possible confidentiality of the information being discussed and to ensure the efficiency of the proceedings. Category 2.2.6 is used by DG Competition to place correspondence of a purely organizational nature connected to the leniency application process, such as logistic arrangements to ensure the safe transmission of sensitive information or the production of oral statements, but which does not in itself contain substantive information on the subject-matter of the investigation. Access to ÖBB’s leniency statements and certain other documents related to the leniency procedure had been previously granted to ČD on 16 and 19 April 2021. ČD claimed that, in this case, the various communications between the Commission and ÖBB relating to ÖBB’s leniency application should be generally made available to ČD as they may allow ČD to challenge the evidentiary value of ÖBB’s leniency application (105). In particular, ČD claimed that the Commission unduly influenced ÖBB’s leniency application in this case and sought further access to any information that would corroborate this accusation. The Article 7 Decision of 1 December 2023 found that the elements pointed out by ČD as showing the existence of an undue influence by the Commission concerning ÖBB’s leniency application and corporate statements appeared speculative (see sections 5.1 and 5.2).












139.


As mentioned in paragraph 29 above, on 28 February 2024, the Hearing Officer received a new request from ČD seeking further access to file, pursuant to Article 7(1) of Decision 2011/695/EU, i.e., ČD’s Article 7 Request of 28 February 2024. Prior to that request, ČD had asked DG Competition on 25 October 2023 for access to the Article 8 Decision addressed to ÖBB and to ‘… other yet undisclosed documents which were placed into the Commission’s file after the issuance of the Statement of Objections on 10 June 2022 (if any)’. On 10 January 2024, in reply to that request, DG Competition provided ČD with one document ([…]) and rejected it for the rest.












140.


In ČD’s Article 7 Request of 28 February 2024, ČD submitted, first, that the Commission ‘mostly refused’ to disclose to ČD the documents inserted in the file after the adoption of the SO by refusing to give ČD access to the Article 8 Decision addressed to ÖBB and to any documents placed in the file after the issuance of the SO (‘post-SO documents’) other than […] (106). ČD claimed that it was not for the Commission (including the Hearing Officer) to assess which documents are of an exculpatory nature and therefore inaccessible information should be as limited as possible.












141.


Second, ČD claimed that it should be given ‘maximum access’ to the file, including ‘all information which it could possibly use for its defence (i.e., any and all documents and other pieces of information that could be, in the broadest meaning of those terms possible, exculpatory/exonerating or otherwise benefit ČD’s defence in the proceedings)’ (107). ČD claimed that, in the absence of information on which documents were placed in the file, it could not identify each piece of information that it could request nor explain why it would need it and thus just explained the type of information requested and the reasons for its disclosure (108).












142.


Finally, ČD explained that ČD’s Article 7 Request of 28 February 2024‘covers in the first place, documents which have been created or otherwise came into the Commission’s possession after the adoption of the SO’. In addition, ČD also asked for access to the undisclosed information which was the subject of the Hearing Officer Article 7 Decision of 1 December 2023 and asked the Hearing Officer to ‘reconsider’ that decision (109). ČD justified such request to ‘reconsider’ that decision by the information received in the context of the Article 7 Decision of 1 December 2023 and ‘other developments that have occurred in the Proceedings after the Reasoned Request of August 2022’.












143.


In response to ČD’s Article 7 Request of 28 February 2024 and upon my request, DG Competition made accessible to ČD on 10 June 2024 documents and information concerning ÖBB internal rolling stock valuations (110). Upon my intervention, ÖBB accepted to lift its confidentiality claims on these documents or reduce the scope of those claims. In addition, on 11 June 2024, DG Competition provided ČD with access to the non-confidential version of the Annexes of ÖBB’s reply to the SO.












144.


Pursuant to Article 3(7) of Decision 2011/695/EU, any issues regarding the effective exercise of the procedural rights of the parties concerned, should first be raised by those persons with DG Competition, before being referred to the Hearing Officer. Accordingly, the Article 7 Decision of 12 July 2024 addressed the two claims which had been first raised by ČD with DG Competition, namely, to be provided access to (i) the Article 8 Decision addressed to ÖBB and (ii) ‘… other yet undisclosed documents which were placed into the Commission’s file after the issuance of the Statement of Objections on 10 June 2022 (if any)’ (111). In addition, although ČD’s claims (other than those two claims) should be considered inadmissible and were rejected by the Hearing Officer on that basis, the Article 7 Decision of 12 July 2024 also assessed them for completeness.












145.


The Article 7 Decision of 12 July 2024 rejected ČD’s claim for access to the Article 8 Decision addressed to ÖBB, for the following reasons.












146.


First, the Article 8 Decision addressed to ÖBB is not intended to be delivered to ČD nor to produce any legal effects vis-à-vis ČD or any party other than ÖBB. Second, the Article 8 Decision addressed to ÖBB discusses the confidentiality claims made by ÖBB and the arguments favouring disclosure of certain ÖBB information. The information itself, whose confidentiality is discussed in the Article 8 Decision addressed to ÖBB, has been made accessible to ČD. Only that information constitutes ‘evidence pertaining to the allegations’ against ČD, relevant for the exercise of ČD’s right to be heard. Third, as the Article 8 Decision addressed to ÖBB refers to the confidentiality and possible disclosure in the context of access to file of certain ÖBB information, its content is similar in nature to that of documents filed under category 2.7.5 of the Commission’s file (‘Access to File, Correspondence with Parties and Document Owners on Confidentiality and Access’). As mentioned in paragraph 138, those documents have no inherent probative value and are generally non-accessible in order to protect the possible confidentiality of the information being discussed and to ensure the efficiency of the proceedings. Fourth, the Article 8 Decision addressed to ÖBB is a document which has been placed in the file after the notification of the SO. Nothing in the Article 8 Decision addressed to ÖBB constitutes evidence concerning the subject-matter of the investigation, neither incriminating nor exculpatory.












147.


As regards ČD’s request for access to post-SO documents, it is for the Commission to carry out an initial assessment of the potentially exculpatory nature of the information (112). The applicants may not rely on the case-law that it cannot be for the Commission alone, which notifies any objections and adopts the decision imposing a penalty, to determine the documents of use in the defence of the undertaking concerned. That argument, relating to documents within the file compiled by the Commission, cannot apply to the documents included in the file after the notification of the statement of objections (113).












148.


In order to assess ČD’s Article 7 Request of 28 February 2024 in connection with post-SO documents (other than the Article 8 Decision addressed to ÖBB), the Hearing Officer examined the number, nature and content of those documents, and carried out verifications whether they might contain inculpatory or exculpatory evidence. That examination showed that several post-SO documents were accessible to ČD (e.g., the parties’ replies to the SO and their annexes) (114) or were known to ČD (i.e., documents originating from ČD). Other documents belonged to a non-accessible category of documents (i.e., internal documents of the Commission and correspondence with national competition authorities, and exchanges on confidentiality) and the rest of post-SO documents (i.e., exchanges concerning the preparation of minutes of meetings which have been made accessible to ČD, and exchanges in connection with procedural aspects such as the organization and participation in the oral hearing, the notification of the SO to the parties and the representation of the parties in the procedure (115)), having regard to their nature and content, are unsuited to include inculpatory or exculpatory evidence and, in particular, do not contain evidence concerning the types of information identified by ČD as indicated in paragraph 141.












149.


As regards the request for a list of the post-SO documents in the file, the Article 7 Decision of 12 July 2024 found it unjustified and rejected it for the following reasons. There was no legal obligation on the Commission and it was not the practice of DG Competition to provide the addressees of the SO with an enumerative list of documents included in the case file after the SO. Inquiries in this regard made with DG Competition confirmed that there was no enumerative list of post-SO documents in the file. The absence of such a list does not prevent ČD from bringing to the Hearing Officer a request for further access pursuant to Article 7(1) of Decision 2011/695/EU, and indeed it has not prevented that undertaking from bringing such requests in this case.












150.


As regards ČD’s request to reconsider the Article 7 Decision of 1 December 2023, the Article 7 Decision of 12 July 2024 acknowledged that decisions refusing access to the file and, in particular, decisions pursuant to Article 7 of Decision 2011/695/EU are preliminary in nature and may be rectified by granting access to the information concerned before the adoption of the final decision in the case. However, such preliminary nature does not entail as a consequence that a party may simply reiterate the same request and have it re-examined, or that the Hearing Officer should systematically reassess previous decisions on request, at any moment, and in the absence of any serious grounds. There could be cases, however, where it may be justified for the Hearing Officer to reconsider a previous decision. For example, this could be the case where the undertaking seeking further access brings new and significant elements, which alter the circumstances and conditions which governed the adoption of the initial decision. The Article 7 Decision of 12 July 2024 concluded that ČD had not raised with the Hearing Officer any such new elements or issues capable of substantiating a relevant change in the circumstances and conditions which governed the adoption of the initial decision, concerning documents which were still not accessible (116).












151.


Also, the Article 7 Decision of 12 July 2024 noted that ČD did not identify specifically in ČD’s Article 7 Request of 28 February 2024 any of the documents for which it requests the Article 7 Decision of 1 December 2023 to be reconsidered. ČD’s claim (‘… ČD is not able to fully identify (let alone in a very specific manner) each piece of information that it may request from the File …’) is simply not correct as regards documents included in the file before the adoption of the SO and, in particular, as regards the documents covered by the Article 7 Decision of 1 December 2023. ČD had been provided with an enumerative list of those documents and could therefore identify them in a specific manner. Accordingly, ČD’s request to ‘reconsider’ the Article 7 Decision of 1 December 2023 in full, without identifying which are the specific documents concerned and the reasons to depart from that decision in connection with specific documents was rejected in the Article 7 Decision of 12 July 2024.












152.


As regards ČD’s claim that it was granted further access to certain information in the context of ČD’s Article 7 Request of 15 August 2022 and that access made ‘clear’ the ‘value of the (undisclosed) documents for ČD’s defence’ of certain information, for example information on ÖBB internal rolling stock valuations (117) and ÖBB’s procurement rules concerning the purchase of wagons, (118) I note that DG Competition gave ČD further access to ÖBB internal rolling stock valuations information on 11 June 2024. As regards procurement rules concerning the purchase of wagons, ČD had not substantiated why the fact that a person involved in sales could have a role related to procurement (thus, concerning purchases) would show that those procurement rules were also applied to sales (rather than purchases), as claimed by ČD, and therefore ČD’s claim appeared speculative. In addition to ÖBB internal rolling stock valuations and ÖBB’s procurement rules, ČD claimed that other ‘… (types of) documents and information’ belonging to the categories mentioned in paragraph 141 should be made accessible to ČD. However, as regards those documents and information, not only ČD did not identify to which documents its referred to, but also it did not invoke new elements which could alter the circumstances and conditions which governed the adoption of the Article 7 Decision of 1 December 2023. The Article 7 Decision of 12 July 2024 therefore confirmed the conclusion of the Article 7 Decision of 1 December 2023.












153.


Accordingly, the Hearing Officer concluded in the Article 7 Decision of 12 July 2024 that, upon his request, DG Competition had already made accessible to ČD on 11 June 2024 certain documents and information on ÖBB internal stock valuation, and had granted ČD the possibility to submit observations on them; and that for the remainder of the request, it fell to be rejected.




5.5.2.   ČD’s subsequent claims









154.


On 19 July 2024, after the Article 7 Decision of 12 July 2024 was adopted, ČD submitted supplementary observations on the information made accessible on 11 June 2024, which includes information on ÖBB internal rolling stock valuations and the annexes to ÖBB reply to the SO (119). Those observations and claims, which ČD had also made in the course of the proceedings in previous submissions, are assessed below.




(a)   The ‘belated’ and ‘piecemeal’ access








155.


ČD objected to the ‘belated’ disclosure of information in the context of access to file (120). ČD submitted that the late access, after ČD has submitted its reply to the SO and the oral hearing has been held, cannot remedy the harm to ČD’s rights of defence and right to be heard (121).












156.


ČD claimed that the Commission ‘is also repeatedly disclosing the documents to ČD on a piecemeal basis’ (122). ČD claimed that this practice ‘forces ČD to prepare its defence with incomplete information’ and ‘prolongs the already excessive duration of the proceedings’ (123). ČD objected that the ‘Commission keeps disclosing several versions of the documents with a gradually decreasing scope of the redacted information and, in many cases, assigns new IDs to those new versions of documents’ (124). ČD claimed that this way of action may impede reviewing any possible decision of the Commission in this case (125).












157.


Moreover, ČD claimed that, as ‘the gradually disclosed information is clearly to ČD’s benefit’, this would mean that ‘the previous challenges concerning the repeated infringements upon ČD’s procedural rights were indeed, valid’ and ‘the assessment of the confidential information in the File by the Commission was repeatedly deficient, to the detriment of ČD’s ability to defend itself in the proceedings’ (126).












158.


Respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (127).












159.


The Hearing Officer may, instead of further extending the time limit to reply to the statement of objections or of suspending the running of the time period, grant the addressee of the statement of objections the opportunity to submit at a later stage, when outstanding issues with access to the file have been resolved, additional written comments that supplement or modify the first reply to the statement of objections on the basis of the additional access granted (128).












160.


In the case at hand, ČD was provided access to the main documents of the file after the issuance of the SO (129). Accordingly, the deadline to reply to the SO started to run pursuant to point 102 of the Antitrust Best Practices Notice (130).












161.


DG Competition then gave ČD the opportunity to make supplementary observations on the information to which further access was granted and, indeed, ČD submitted observations on several occasions (131).












162.


To the extent that ČD may be taking issue with the absence of supplementary oral observations or a further oral hearing, (132) it is noted that the right to be heard does not mean that the person concerned must be given the opportunity to express his or her views orally, since the opportunity to provide comments in writing also allows that right to be observed (133). As mentioned, ČD had the possibility to react in writing to the additional information made accessible, which it systematically did.












163.


The procedure followed by DG Competition has provided ČD with the opportunity to examine the documents in the file which may be relevant for its defence and to provide its views on those documents during the administrative procedure.




(b)   Complaints relating to the absence of additional procedural steps (meetings, supplementary statement of objections or letter of facts)








164.


In its submission of 19 July 2024, ČD claimed that the Commission ‘has continued in the disclosures of new documents to ČD without taking procedural steps (such as a state of play meeting or issuing a letter of facts)’ (134). ČD claimed that this way of action prevented it from ascertaining ‘what meaning the Commission gives to the newly disclosed documents and pieces of information’.












165.


In previous submissions, ČD claimed that the Commission should have held a state of play meeting after the oral hearing pursuant to paragraphs 64 and 65 of the Antitrust Best Practices Notice (135). ČD claimed that any new evidence potentially relied upon by the Commission should be accompanied by a supplementary SO or a letter of facts pursuant to section 3.1.7 of the Antitrust Best Practices Notice (136). ČD submitted that those failures prevented it from establishing the incriminatory or exculpatory nature of the information made newly accessible (137).












166.


On 2 October 2024, ČD requested DG Competition to arrange for a meeting pursuant to point 70 of the Antitrust Best Practices Notice (138). ČD submitted that such meeting was ‘important for the exercise of its right to a proper defence’, as ČD was of the opinion that DG Competition did not ‘intend to factor in the previous defence of ČD’, ‘the proceedings have been conducted vis-à-vis ČD procedurally unfairly’ and ‘a significant portion of the exonerating evidence has been made available to ČD only after the oral hearing’. That request was later addressed by CD to the Hearing Officer on 10 October 2024, alleging also the need for a second oral hearing (139).












167.


According to point 65 of the Antitrust Best Practices Notice, in the context of cartel proceedings one state of play meeting will be offered to the parties after the oral hearing. According to point 70 of the Antitrust Best Practices Notice, it is normal practice to offer the senior officers of the parties an opportunity to discuss the case with either with the Director-General for competition, the Deputy Director-General for antitrust, or if appropriate, with the Commissioner responsible for Competition.












168.


DG Competition has confirmed to me that a state of play meeting took place on 25 September 2024 with ČD and on 20 September 2024 with ÖBB.












169.


The parties have also met with the Commissioner responsible for Competition, for example, ČD in April 2019 and September 2020. In any event, point 70 of the Antitrust Best Practices Notice does not provide for a right for a meeting, in particular, because of the parties disagreeing with the possible conclusions of DG Competition.












170.


The need for a supplementary statement of objections or letter of facts depends ultimately of the content of the decision to be adopted compared with that of the statement of objections (140). Indeed, pursuant to Article 16 of Decision 2011/695/EU, the Hearing Officer is called to examine whether the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views.












171.


In its message to DG Competition of 2 October 2024, ČD also requested to be properly informed about the updated fine-setting methodology and to get an adequate opportunity to comment thereon. This ensued from ČD’s understanding, following the state of play meeting on 25 September 2024, that DG Competition was considering certain adjustments to the fine-setting methodology announced in the SO (141). That request was rejected by DG Competition on 9 October 2024 and reiterated by ČD to the Hearing Officer on 10 October 2024 (142).












172.


With regard to the exercise of the rights of the defence in respect of the imposition of fines, it is settled case-law that, provided the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard (143). According to the case law, where the Commission departs from its Guidelines on Fines and applies another methodology specifically adapted to the particularities of the case, the rights of the defence require that that methodology be disclosed to the interested parties, so that they can be put in a position to make their views known on the factors on which the Commission intends to base its decision (144).












173.


In my opinion, the SO provided the parties with sufficient indication of the fining methodology which the Commission intended to adopt in this case (145). The parties have been able to make their views known, and the Commission has taken into account their arguments in the final decision, while maintaining the fining methodology announced in the SO (146). In particular, the use of ČD’s revenues from the provision of long-distance passenger transport services in Czechia as a basis for the value of sales of ÖBB had been announced in the SO (147) and the parties had the opportunity to make known their views on that aspect, as well as on the methodology used for the determination of the value of sales (148).












174.


I therefore do not consider that a supplementary statement of objections or additional letter of facts or of fines was necessary in this case.












175.


In any event, the absence of state of play meeting, supplementary statement of objections and letter of facts does not prevent ČD from assessing the documents to which further access may be granted, in light of the content of those documents.




5.6.   The unequal treatment allegations









176.


ČD claimed that it had to face ‘unequal treatment’ in these proceedings in comparison to ÖBB (149). In particular, ČD submitted that the Commission has applied different standards when addressing confidentiality claims from ČD and claims from other information providers in the file, and particularly ÖBB (150). Also, ČD claimed that the unequal treatment was apparent from the fact that ČD’s submission of 31 January 2023 was made accessible to ÖBB only a few days after ČD submitted it to the Commission, whereas ÖBB’s response to that submission was made accessible to ČD almost a year after its submission and at ČD’s request (151).












177.


ČD has had the opportunity in these proceedings to request documents which may have not been disclosed to it and may be necessary for its exercise of the right to be heard, pursuant to Article 7 of Decision 2011/695/EU. It also has had the opportunity to object to the disclosure of information which it has provided and constitutes confidential information pursuant to Article 8 of Decision 2011/695/EU. ČD has made use of those opportunities in these proceedings on several occasions. Such referrals to the Hearing Officer have been examined on their merits, as described above.












178.


As regards the alleged delays in making accessible to ČD some ÖBB’s submissions, it should be noted that several factors may affect the timing of communications with parties, or cause delays in transmitting certain documents, for example, the need to examine and discuss confidentiality claims, or the convenience of providing additional access to several documents, grouping them together.












179.


In any event and ultimately, earlier or later access to certain documents should not have, as a general rule, any impact on whether the undertaking has been afforded the opportunity to be heard on all relevant matters provided that, as indicated in paragraph 158, access is given during the administrative procedure and such access allows the undertaking to make known its views (152).












180.


In any event, ČD does not explain how, if a procedural irregularity had occurred concerning a possible unequal treatment, its rights of defence could have been affected.




6.   CONCLUSION









181.


Pursuant to Article 16 of Decision 2011/695/EU, 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. I conclude that this requirement has been complied with.












182.


Overall, I consider that the effective exercise of procedural rights has been respected in this case.






Brussels, 18 October 2024.

Eric GIPPINI FOURNIER
               





(1)  Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission 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) (‘Decision 2011/695/EU’).

(2)  Specifically, Österreichische Bundesbahnen-Holding Aktiengesellschaft, ÖBB-Personenverkehr Aktiengesellschaft and ÖBB-Technische Services-Gesellschaft mbH.

(*1)  Parts of this text have been edited to ensure that confidential information is not disclosed. Those parts are shown as […].

(3)  Judgment of 20 June 2018, České dráhy a.s. v Commission, T-621/16, ECLI:EU:T:2018:367.

(4)  Judgment of 30 January 2020, České dráhy a.s. v Commission, C-538/18 P and C-539/18 P, ECLI:EU:C:2020:53.

(5)  
            OJ C 298, 8.12.2006, p. 17.

(6)  There was a first round of settlement discussions between the Commission and the Parties from December 2019 to mid-2021. Then, in March 2022, there were again discussions and exchanges between the Commission and the Parties concerning the possibility to settle the case, which failed in April 2022. See the Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (2008/C 167/01) (OJ C 167 2.7.2008 p. 1) (‘Settlement Notice’).

(7)  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18) (‘Regulation 773/2004’).

(8)  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) (‘Regulation No 1/2003’).

(9)  Due to Covid-related travel restrictions, access to those leniency statements and certain other documents was granted through a conference-call read-out, with ČD’s agreement.

(10)  At the same time, ČD requested me to confirm or grant suspension or a further extension of the time limit to respond to the SO pursuant to Article 9(1) of Decision 2011/695/EU (see below paragraph 38).

(11)  […]. In particular, those documents include ÖBB's internal guidelines for the sale of used rolling stock and certain information regarding bids.

(*2)  Should read: ‘2023’.

(12)  […].

(13)  […].

(14)  In addition, on 24 November 2023, DG Competition granted ČD a revised non-confidential version of Document […]. As no new information was made available to ČD with that document, DG Competition did not grant a deadline for the submission of supplementary comments on that document. ČD reacted however to such disclosure by email of 29 November 2023.

(15)  See paragraph 19.

(16)  i.e, the names (including email addresses) and positions of the individuals mentioned in the following documents: [….].

(17)  On 7 December 2023, DG Competition asked ČD for confirmation that the RFI Reply of 14 July 2023 can be made accessible to ÖBB in its entirety. ČD responded on 14 December 2023 by making several confidentiality claims in connection with the RFI Reply of 14 July 2023 and including a proposed non-confidential version.

(18)  Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 81 and 82 of the EC Treaty, Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (OJ C 325, 22.12.2005, p. 7) (‘Notice on Access to File’).

(19)  […]. The documents correspond to those identified in the Article 7 Decision of 1 December 2023 as including information on ÖBB internal rolling stock valuations.

(20)  In that rejection, DG Competition produced a revised version of the draft summary (the ‘Summary’).

(21)  
            https://ec.europa.eu/commission/presscorner/detail/en/ip_22_3585.

(22)  See section 4.

(23)  In theory, I could have divided the oral hearing into sessions open and closed to RegioJet, and asked the parties to include all confidential information in the presentations for the closed sessions. However, that solution was not possible in practice, in light of ČD’s substantial and unjustified confidentiality claims covering almost all information in the Summary.

(24)  See paragraph 51.

(25)  This is in line with the language waivers granted by ČD on 16 May 2019 and by ÖBB on 14 October 2020, and was confirmed in further exchanges with the Hearing Officer, in particular, in the emails of 29 November 2022 and calls of 7 December 2022.

(26)  A full list of participants is available.

(27)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ C 210, 1.9.2006, p. 2) (‘Guidelines on Fines’).

(28)  See section 5, concerning the procedural arguments made by ČD.

(29)  See paragraph 49.

(30)  Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ C 308, 20.10.2011, p. 6) (‘Antitrust Best Practices Notice’).

(31)  ÖBB claimed in its SO Reply that there was no sufficient evidence for certain findings of the Commission. Also, in paragraph 7 of ÖBB SO Reply, ÖBB claimed that, by not adducing precise and consistent evidence, the Commission may have infringed the principle of presumption of innocence set forth in Article 48(1) of the Charter of Fundamental Rights of the European Union (OJ C 326, 26.10.2012, p. 393, the ‘Charter’). As ÖBB claims appear to be dependent on and concern the substance of the case, I will not assess them from a right of defence perspective.

(32)  In particular and as described in sections 3, ČD submitted observations on 16 January 2023, 31 January 2023, 21 March 2023, 22 August 2023, 12 October 2023, 16 November 2023, 29 November 2023, 27 February 2023, 19 July 2024 and 26 July 2024, some at the request of the Commission and some on its own initiative.

(33)  See, in particular, paragraph 57 and section IX.A.1 of ČD SO Reply.

(34)  ČD also uses the expressions ‘undue influence’ and ‘pressure’ in that connection.

(35)  See, in particular, paragraphs 11, 12, 59 and sections IX.A, IX.B and X.B.1 of ČD SO Reply. Likewise, in paragraphs 17 and 18 of its submission of 16 January 2023, ČD refers to ‘(…) the Commission’s undiligent, uncritical and purpose-driven treatment of the investigation…’, as shown by the discrepancies between the evidence and ÖBB leniency application and absence of ‘important documents’ from the file, which were not requested to ÖBB by the Commission despite ‘their apparent value for the investigation’. ČD reiterates those claims, for example, in its submissions of 31 January 2023 (paragraphs 16, 29 and 30), 16 November 2023 (paragraphs 10 and 11), 28 February 2024 (paragraph 17), 19 July 2024 (paragraph 4), and 10 October 2024 (sections I and IV).

(36)  Judgment of 2 February 2022, Scania and Others v Commission, T-799/17, ECLI:EU:T:2022:48, paragraph 146; Judgment of 24 September 2019, HSBC Holdings and Others v Commission, T-105/17, ECLI:EU:T:2019:675, paragraphs 285 and 286; Judgment of 10 November 2017, Icap and Others v Commission, T-180/15, ECLI:EU:T:2017:795, paragraph 271; and Judgment of 27 September 2012, Shell Petroleum and Others v Commission, T-343/06, ECLI:EU:T:2012:478, paragraph 170.

(37)  See for example Judgment of 14 March 2014, Holcim (Deutschland) AG and Holcim Ltd v Commission, T-293/11, ECLI:EU:T:2014:127, paragraph 110 and the case-law cited. See also Judgment of 18 September 2024, Qualcomm Inc. v. Commission, T-671-19, ECLI:EU:T:2024:626, paragraph 124.

(38)  Judgment of 2 February 2022, Scania and Others v Commission, T-799/17, ECLI:EU:T:2022:48, paragraph 154. This echoes the general rule in EU law that a party alleging a fact normally bears the burden of proving it: see, in this sense, Judgment of 30 March 2022, Latam Airlines Group and Lan Cargo v Commission, T-344/17, ECLI:EU:T:2022:185, paragraph 166 and case law cited; and Order of 23 September 2020, Deutsche Telekom v Commission, T-64/20, ECLI:EU:T:2020:481, paragraph 23 and case law cited.

(39)  See judgment of 11 July 2013, Ziegler v Commission, C-439/11 P, ECLI:EU:C:2013:513, paragraph 155 and case-law cited.

(40)  See, by analogy, judgment of 11 July 2013, Ziegler v Commission, C-439/11 P, ECLI:EU:C:2013:513, paragraph 159 and case-law cited.

(41)  See, for example, Judgment of 29 September 2021, Nippon Chemi-Con Corporation v Commission, T-363/18, ECLI:EU:T:2021:638, paragraph 158; Judgment of 7 November 2019, Campine and Campine Recycling v Commission, T-240/17, ECLI:EU:T:2019:778, paragraph 117; Judgment of 12 July 2019, Sony Optiarc and Sony Optiarc America v Commission, T-763/15, ECLI:EU:T:2019:517, paragraph 47; Judgment of 8 September 2016, Goldfish and Others v Commission, T-54/14, ECLI:EU:T:2016:455, paragraph 96 and the case law cited; and Judgment of 29 February 2016, Schenker v Commission, T-265/12, ECLI:EU:T:2016:111, paragraph 41.

(42)  See to that effect, for example, Judgment of 12 July 2019, Sony Optiarc, T-763/15, ECLI:EU:T:2019:517, paragraph 48, Judgment of 7 November 2019, Campine and Campine Recycling v Commission, T-240/17, ECLI:EU:T:2019:778, paragraph 118, Judgment of 29 September 2021, Nippon Chemi-Con Corporation v Commission, T-363/18, ECLI:EU:T:2021:638, paragraph 159, Judgment of 30 March 2022, Air Canada, T-326/17, ECLI:EU:T:2022:177, paragraphs 426 and 427.

(43)  See, for example, Judgment of 12 July 2019, Sony Optiarc, T-763/15, ECLI:EU:T:2019:517, paragraph 49, Judgment of 7 November 2019, Campine and Campine Recycling v Commission, T-240/17, ECLI:EU:T:2019:778, paragraph 119, Judgment of 29 September 2021, Nippon Chemi-Con Corporation v Commission, T-363/18, ECLI:EU:T:2021:638, paragraph 160.

(44)  Judgment of 16 May 2018, Lufthansa v Commission, T-712/16, ECLI:EU:T:2018:269, paragraph 145.

(45)  In particular, ČD SO Reply; paragraphs 61 and 67 and sections IX.D.2 and XI.C.7, ČD’s submission of 28 February 2024, paragraph 27 (v) and email of ČD of 14 July 2023, 4th paragraph of section II.

(46)  Judgment of 12 July 2019, Toshiba Samsung Technology Corp. and others v. Commission, T-8/16, ECLI:EU:T:2019:522, paragraphs 467 and 468 and the case-law cited; confirmed by Judgment of 6 June 2022, Toshiba Samsung Technology Corp. and others v. Commission, C-700/19 P, paragraph 176. See also Judgment of 18 September 2024, Qualcomm Inc. v. Commission, T-671-19, ECLI:EU:T:2024:626, paragraph 104.

(47)  Judgment of 12 July 2019, Toshiba Samsung Technology Corp. and others v. Commission, T-8/16, ECLI:EU:T:2019:522, paragraph 469 and the case-law cited; confirmed by Judgment of 6 June 2022, Toshiba Samsung Technology Corp. and others v. Commission, C-700/19 P, paragraph 176. See also Judgment of 18 September 2024, Qualcomm Inc. v. Commission, T-671-19, ECLI:EU:T:2024:626, paragraph 105.

(48)  Judgment of 12 July 2019, Toshiba Samsung Technology Corp. and others v. Commission, T-8/16, ECLI:EU:T:2019:522, paragraph 470 and the case-law cited; confirmed by Judgment of 6 June 2022, Toshiba Samsung Technology Corp. and others v. Commission, C-700/19 P, paragraph 176. See also Judgment of 18 September 2024, Qualcomm Inc. v. Commission, T-671-19, ECLI:EU:T:2024:626, paragraph 108.

(49)  Judgment of 12 July 2019, Toshiba Samsung Technology Corp. and others v. Commission, T-8/16, ECLI:EU:T:2019:522, paragraph 472 and the case-law cited; confirmed by Judgment of 6 June 2022, Toshiba Samsung Technology Corp. and others v. Commission, C-700/19 P, paragraph 176; Judgment of 11 July 2019, Italmobiliare SpA v. Commission, T-523/15, ECLI:EU:T:2019:499, paragraph 157.

(50)  Judgment of 11 July 2019, Italmobiliare SpA v. Commission, T-523/15, ECLI:EU:T:2019:499, paragraph 156.

(51)  Judgment of 11 July 2019, Italmobiliare SpA v. Commission, T-523/15, ECLI:EU:T:2019:499, paragraph 156; Judgment of 19 March 2003, CMA CGM and others v. Commission, T-213/00, ECLI:EU:T:2003:76, paragraph 325.

(52)  Judgment of 11 July 2019, Italmobiliare SpA v. Commission, T-523/15, ECLI:EU:T:2019:499, paragraph 156. See also in this line Judgment of 8 May 2014, Bolloré v. Commission, C-414/12 P, ECLI:EU:C:2014:301, paragraph 106.

(53)  See paragraphs 18, 21, 23, 31, 36 and 38.

(54)  See paragraphs 16, 27, 29 and 47.

(55)  See paragraph 6.

(56)  See Judgment of 18 September 2024, Qualcomm Inc. v. Commission, T-671-19, ECLI:EU:T:2024:626, paragraph 114.

(57)  Judgment of 28 January 2021, Qualcomm, Inc. and Qualcomm Europe, Inc. v Commission, C-466/19 P, ECLI:EU: C:2021:76, paragraph 114. See also Judgment of 18 September 2024, Qualcomm Inc. v. Commission, T-671-19, ECLI:EU:T:2024:626, paragraph 118.

(58)  See paragraph 4.

(59)  ČD SO Reply, paragraphs 938 to 940.

(60)  […]. In this line, ČD’s submission of 22 August 2023, footnote 2.

(61)  See […] in connection with the discussion between ÖBB’s CEO and the Executive Vice President Vestager of 19 December 2018. See paragraph 940 of ČD SO Reply (‘ČD (…) asks that the Commission informs ČD about any discussions (incl. in-person meetings, conference calls or any other discussions) between the Commission and any parties in relation to the present case and, accordingly, that the Commission provides to ČD sufficiently detailed records of those discussions…’
            ).


(62)  Judgment of 14 September 2022, Google Android, T-604/18, ECLI:EU:T:2022:541 (‘
            Google Android
            ’), Judgment of 15 June 2022, Qualcomm, T-235/18, ECLI:EU:T:2022:358 (‘
            Qualcomm’), and Judgment of 6 September 2017, Intel, C-413/14 P, ECLI:EU:C:2017:632 (‘
            Intel’).

(63)  ČD email of 14 July 2023, section I. ČD reiterated those claims in an email dated 14 December 2023.

(64)  ČD email of 14 July 2023, section II.

(65)  ČD’s submission of 22 August 2023, introduction, page 2.

(66)  ČD’s submission of 22 August 2023, paragraph 2.

(67)  ČD’s submission of 22 August 2023, paragraph 3.

(68)  ČD’s submission of 22 August 2023, paragraph 3.

(69)  ČD’s submission of 22 August 2023, paragraph 4.

(70)  ČD’s submission of 22 August 2023, section II. These arguments, which have also been made by ČD in general concerning access to file (not only in respect of the newly accessible minutes) are assessed in section 5.5.

(71)  ČD Letter to the Hearing Officer of 10 October 2024, section V.

(72)  
            Intel, paragraph 91; see also Qualcomm, paragraph 190, Google Android, paragraph 912; and Judgment of 25 October 2023, Bulgarian Energy Holding and Others v Commission, T-136/19, ECLI:EU:T:2023:669 (‘
            Bulgargaz
            ’), paragraph 1157.

(73)  Judgment of 9 March 2023, Intermarché Casino Achats v Commission, C-693/20 P, ECLI:EU:C:2023:172, paragraph 106; Judgment of 9 March 2023, Les Mousquetaires and ITM Entreprises v Commission, C-682/20 P, ECLI:EU:C:2023:170, paragraph 90; and Judgment of 9 March 2023, Casino, Guichard-Perrachon and Achats Merchandises Casino v Commission, C-690/20 P, ECLI:EU:C:2023:171, paragraph 86. See also Judgment of 18 September 2024, Qualcomm Inc. v. Commission, T-671-19, ECLI:EU:T:2024:626, paragraph 181.

(74)  
            Qualcomm, paragraph 190; see also Intel, paragraph 92, Google Android, paragraph 912, and Bulgargaz, paragraph 1160. See also Judgment of 18 September 2024, Qualcomm Inc. v. Commission, T-671-19, ECLI:EU:T:2024:626, paragraph 177.

(75)  
            Qualcomm, paragraph 202, and Google Android, paragraph 935. See also Judgment of 18 September 2024, Qualcomm Inc. v. Commission, T-671-19, ECLI:EU:T:2024:626, paragraphs 179 and 189.

(76)  
            Google Android, paragraph 934.

(77)  
            Google Android, paragraph 935.

(78)  
            Google Android, paragraph 936. See, in the same sense, Intel, paragraph 96: ‘in so far as Intel argued that [the information provider] had provided exculpatory evidence to the Commission which the latter should have properly recorded and disclosed to Intel, it must be borne in mind that, as regards failure to disclose an exculpatory document, it is for the undertaking concerned to establish that the non-disclosure was able to influence, to its detriment, the course of the procedure and the content of the Commission’s decision’.

(79)  
            Google Android, paragraphs 937 and 938. See, in the same sense, Intel, paragraph 97. See also Judgment of 18 September 2024, Qualcomm Inc. v. Commission, T-671-19, ECLI:EU:T:2024:626, paragraphs 191 and 192.

(80)  See paragraph 100 above.

(81)  Judgments of 7 January 2004, Aalborg Portland and Others v Commission, C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P, ECLI:EU:C:2004:6, paragraph 126; and of 16 June 2011, FMC Foret v Commission, T-191/06, ECLI:EU:T:2011:277, paragraph 306. See also Bulgargaz, paragraph 1171.

(82)  In Google Android, the General Court also concluded that the procedural errors regarding recordings of two meetings were not in breach of Google’s rights of defence, given that there was a ‘lack of any obvious link between those interviews and the abuses alleged in the contested decision’ (see Google Android, paragraphs 951 to 953).

(83)  See paragraph 131 and, in particular, Judgment of 18 September 2024, Qualcomm Inc. v. Commission, T-671-19, ECLI:EU:T:2024:626, paragraph 179..

(84)  I note however that some of these minutes concern meetings where it is DG Competition rather than the parties which provided some information, and the information is of general nature, in particular,[…]. It is therefore questionable that […] concern exchanges falling under Article 19 of Regulation No 1/2003.

(85)  See Google Android, paragraphs 932 and 933.

(86)  Judgment of 18 September 2024, Qualcomm Inc. v. Commission, T-671-19, ECLI:EU:T:2024:626, paragraphs 182 to 185.

(87)  See footnote 84 as regards […].

(88)  
            Google Android, paragraph 928.

(89)  
            Google Android, paragraph 932.

(90)  A possible exception to this rule is only contemplated where the ‘content of undisclosed evidence may be neither determined nor be determinable’, as recalled above (see paragraph 103 above and case law cited).

(91)  
            Google Android, paragraph 944.

(92)  
            Google Android, paragraph 945. See also Intel, paragraph 99, where the Court of Justice considered, among the factors that led it to conclude that Intel’s rights of defence had not been breached despite the fact that the Commission had not properly recorded an interview with Dell, that ‘Intel was provided with […] a follow-up document containing Dell’s written responses to the oral questions put to [Dell] during that interview’.

(93)  
            Google Android, paragraph 949.

(94)  […].

(95)  ČD submission of 22 August 2023, paragraph 4.

(96)  See Google Android, paragraphs 937 and 938. See also Judgment of 18 September 2024, Qualcomm Inc. v. Commission, T-671-19, ECLI:EU:T:2024:626, paragraphs 192 to 195.

(97)  Judgment of 18 September 2024, Qualcomm Inc. v. Commission, T-671-19, ECLI:EU:T:2024:626, paragraph 179.

(98)  Idem.

(99)  Idem.

(100)  […].

(101)  […].

(102)  i.e, the names (including email addresses) and positions of the individuals mentioned in the following documents: [….].

(103)  As regards those personal data, ÖBB had objected on 11 July 2023 to their disclosure to ČD and referred its objections to the Hearing Officer, pursuant to Article 8(2) of Decision 2011/695/EU. That objection was rejected by the Hearing Officer in a decision adopted on 21 September 2023, i.e., the Article 8 Decision addressed to ÖBB.

(104)  This is in line with the more general requirement that a request to the Commission must be couched in sufficiently precise terms, to enable the Commission to state its views effectively. See, by analogy, Judgment of 5 October 2020 in Les Mousquetaires and ITM Entreprises v Commission, T-255/17, ECLI:EU:T:2020:460, paragraphs 37 and 47; and Judgment of 14 November 2012 in Nexans France and Nexans v Commission, T-135/09, ECLI:EU:T:2012:596, paragraph 130.

(105)  ČD’s Article 7 Request of 25 August 2022, paragraph 65.

(106)  ČD’s Article 7 Request of 28 February 2024, paragraphs 3 to 5.

(107)  ČD’s Article 7 Request of 28 February 2024, paragraph 6.

(108)  ČD’s Article 7 Request of 28 February 2024, paragraphs 7 and 9 to 16, e.g., information concerning the internal valuation of ÖBB wagons.

(109)  ČD’s Article 7 Request of 28 February 2024, section IV (Conclusion) at page 10.

(110)  […]. The documents correspond to those identified in the Article 7 Decision of 1 December 2023 as including information on ÖBB internal rolling stock valuations.

(111)  See paragraph 23. On 10 January 2024, DG Competition provided ČD with one document ([…]) and rejected the remainder of ČD’s request.

(112)  Judgment of 12 July 2018, Brugg Kabel AG and other v. Commission, T-441/14, ECLI:EU:T:2018:453, paragraph 72, Judgment of 29 September 2021, Nippon Chemi-Con Corporation v Commission, T-363/18, ECLI:EU:T:2021:638, paragraphs 114 to 116.

(113)  See, to that effect, Judgment of 12 July 2018, Brugg Kabel AG and other v. Commission, T-441/14, ECLI:EU:T:2018:453, paragraph 73, Judgment of 27 September 2012; Shell Petroleum NV and others v. Commission, T-343/06, ECLI:EU:T:2012:478, paragraph 89.

(114)  […] (reply to the SO), […] (written opinion by RegioJet), […] (comments of RegioJet on the information concerning the nature and subject-matter of the procedure), and […] (ÖBB’s comments on ČD’s submission of 31 January 2023). In addition, the Article 7 Decision of 12 July 2024 discloses in its Annex certain publicly accessible documents which DG Competition has included in the file for the purpose of updating the description of the undertakings mentioned in the SO.

(115)  e.g., power of attorney, change of legal representative in the procedure.

(116)  As regards ÖBB internal stock valuations, see paragraphs 143 and 152.

(117)  ČD’s Article 7 Request of 28 February 2024, paragraphs 14 and 15.

(118)  ČD’s Article 7 Request of 28 February 2024, paragraph 16.

(119)  See paragraph 33.

(120)  ČD submission of 19 July 2024, paragraph 4 (v). See also paragraphs 3 (v) and paragraph 27 (i) of ČD’s submission of 28 February 2024.

(121)  ČD’s Article 7 Request of 28 February 2024, paragraphs 1 and 2.

(122)  ČD submission of 19 July 2024, paragraph 30 (ii). See also ČD submission of 28 February 2024, paragraph 27 (ii).

(123)  Similarly, in paragraph 27(iv) of its submission of 28 February 2024, ČD claimed that the ‘practice’ to ‘impose [ ] a deadline on ČD to comment on the newly accessed documents, even though further documents were likely to be disclosed in the future…’
            ‘… forces ČD to prepare its defence while working with incomplete information, which makes the preparation of ČD’s defence unnecessarily complicated and time-consuming (and any related steps of the Commission difficult to follow and review)’.

(124)  ČD submission of 16 November 2023, paragraph 2.

(125)  Idem.

(126)  ČD submission of 19 July 2024, paragraph 30 (iii).

(127)  Judgment of 7 January 2004 in Aalborg Portland and Others v Commission, C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P, ECLI:EU:C:2004:6, paragraphs 66 and 67. See also Judgment of 18 September 2024, Qualcomm Inc. v. Commission, T-671-19, ECLI:EU:T:2024:626, paragraph 166.

(128)  See, by analogy, Judgments of 1 July 2009 in ThyssenKrupp Stainless v Commission, T-24/07, ECLI:EU:T:2009:236, paragraphs 285 to 290; and of 8 September 2016 in Arrow Group and Arrow Generics v Commission, T-467/13, ECLI:EU:T:2016:450, paragraphs 357 to 362.

(129)  See paragraphs 13 and 14.

(130)  See also Judgment of 8 July 2004, Mannesmannröhen-Werke v. Commission, T-44/00, ECLI:EU:T:2004:218, paragraph 65 and Judgment of 8 September 2016, Arrow Group and Arrow Generics v Commission, T-467/13, ECLI:EU:T:2016:450, paragraphs 357 to 362.

(131)  See footnote 32.

(132)  See ČD Letter to the Hearing Officer of 10 October 2024, section III.

(133)  
            HeidelbergCement AG and Schwenk Zement KG v Commission, T-380/17, ECLI:EU:T:2020:471, paragraph 634 and case-law cited.

(134)  ČD submission of 19 July 2024, paragraph 30 (i).

(135)  ČD submission of 22 August 2023, paragraph 7.

(136)  ČD submission of 22 August 2023, paragraph 7, ČD submission of 28 February 2024, paragraph 27(ii), ČD submission of 19 July 2024, paragraph 30(i).

(137)  Idem.

(138)  See paragraph 76.

(139)  ČD Letter to the Hearing Officer of 10 October 2024, sections III and VI.

(140)  Judgment of 18 September 2024, Qualcomm Inc. v. Commission, T-671-19, ECLI:EU:T:2024:626, paragraph 145.

(141)  See paragraph 75.

(142)  ČD Letter to the Hearing Officer of 10 October 2024, section II.

(143)  Judgment of 19 January 2016, Toshiba Corp. v Commission, T-404/12, ECLI:EU:T:2016:18, para. 40 and case-law cited. See also Judgment of 10 July 2019, Commission v. NEX International Limited, Icap Management Services Ltd and Icap New Zealand Ltd (‘
            Icap
            ’), C-39/18 P, ECLI:EU:C:2019:584, paragraphs 31 and 38.

(144)  Judgment of 10 July 2019, Commission v. NEX International Limited, Icap Management Services Ltd and Icap New Zealand Ltd (‘
            Icap
            ’), C-39/18 P, ECLI:EU:C:2019:584, paragraph 34.

(145)  See section 9.2 of the SO and, in particular, as regards the determination of the value of sales, section 9.2.3.1 of the SO.

(146)  ČD RSO, section XI.

(147)  SO, paragraphs 642 to 647.

(148)  ČD RSO, section XI.C. See, for example, paragraphs 1014 and 1015 as regards the public service obligations (PSO) lines.

(149)  ČD submission of 28 February 2024, paragraph 26; ČD’s Article 7 Request of 28 February 2024, paragraph 11.

(150)  ČD’s Article 7 Request of 15 August 2022, section I.1.3; ČD’s Article 7 Request of 28 February 2024, paragraph 11.

(151)  ČD’s submission of 28 February 2024, paragraph 26; ČD’s Article 7 Request of 28 February 2024, paragraph 11.

(152)  Judgment of 7 January 2004 in Aalborg Portland and Others v Commission, C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P, ECLI:EU:C:2004:6, paragraphs 66 and 67. See also Judgment of 18 September 2024, Qualcomm Inc. v. Commission, T-671-19, ECLI:EU:T:2024:626, paragraph 166.


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