Final report of the Hearing Officer in case COMP/37.919 - Bank charges for the exchange of eurozone currencies - Germany

(pursuant to Article 15 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings (OJ L 162, 19.6.2001, p. 21))

(2003/C 14/02)

(Text with EEA relevance)

The draft Decision gives rise to the following observations regarding the right to be heard:

1. On 1 August 2000 the Commission initiated formal proceedings with a view to find infringements of Article 81 EC, committed by banks on the German market for the exchange of eurozone currencies. By letters dated 3 August and 10 August 2000, a Statement of Objections (S/O) was sent to the following banks:

1. Bayerische Hypo- und Vereinsbank AG

2. Bayerische Landesbank Girozentrale

3. BfG Bank AG

4. Commerzbank AG

5. Deutsche Genossenschaftsbank AG

6. Deutsche Verkehrsbank AG

7. Dresdner Bank AG

8. Hamburgische Landesbank Girozentrale

9. Landesbank Hessen-Thüringen Girozentrale

10. Reisebank AG

11. Vereins- und Westbank AG

12. Westdeutsche Landesbank Girozentrale

13. Fortis NV

14. Fortis Services Nederland NV

15. Fortis Bank (Holding) Nederland NV

16. GWK Bank NV

17. De Grenswisselkantoren NV

No complainant or other third party participated in the proceedings.

2. Following requests from the parties, the Hearing Officer extended the initial deadline for responses to the S/O from 3 to 27 November 2000, thereby taking into account that the CD-ROM with the contents of the case file had been received by the parties only by mid September 2000. All of the parties, with the exception of Deutsche Genossenschaftsbank, replied in writing to the S/O and requested an oral hearing.

3. In their written submissions the parties moreover requested access to all parallel files relating to suspected infringements of Article 81 EC in other Member State markets for the exchange of eurozone currencies, and to the Dutch file in particular.

(a) To justify their request for general access to parallel files, the banks relied heavily on the fact that the investigations in the aforementioned banking cases had initially been carried out under one and the same file number, and that the original community-wide case COMP/37.391 had thereafter been split up artificially into several separate national cases. The parties should therefore be afforded the opportunity to examine all the national files as to whether they contained documents with relevance to the German banking case.

(b) The reasoning of the request for access to the Dutch banking case file was based mainly on the fact that most of the evidence used by the Commission against the German banks had been found during investigations in the premises of the GWK bank and had become part of the Dutch file. The documents in question were referred to in and copies of them annexed to the S/O addressed to the German banks. The latter suspected that the Dutch file might also contain disculpative information and claimed the right to check whether the Commission had supplied them with any documents which could turn out to be useful for their defence.

4. Following the request mentioned above under (b) the Hearing Officer inspected the Dutch file and extracted from it all documents which related directly or indirectly to the German banking case. These documents were transmitted to each of the addressees of the S/O by letter of 12 January 2001. The undertakings concerned were invited either to submit comments in writing before or after the oral hearing or to make known their views orally during the hearing. The Hearing Officer reserved his final position on both requests for a later stage of the procedure.

5. By letter of 6 August 2001, addressed to all of the banks cocnerned, the requests referred to above under 3(a) and (b) were rejected. The Hearing Officer took the view that the parties were not entitled to inspect the files on parallel banking cases, firstly because the Commission, by dividing up the documentary evidence received during the investigation and by opening several proceedings, each of which related to a suspected national cartel, had made correct use of its organisational powers and secondly because the parties' right of access concerned on documents that were directly or indirectly linked to the objections formally stated by the Commission. With the exception of the Dutch file, none of the files on parallel banking cases contained such documents.

The Hearing Officer furthermore considered that the parties had been supplied with all the documentary evidence whether culpatory or disculpatory in nature, which was contained in the Dutch file and related to the suspected cartel on the German market for the relevant banking services. He denied the German banks the right to claim access to the other parts of the Dutch file, because they related exclusively to suspected arrangements made by Dutch banking institutions for their national market.

6. One party, Vereins- und Westbank AG, by letter of 22 January 2001, had claimed access to those documents which were added to the German banking case file after 19 September 2000 the day of receipt of the CD-ROM containing the documents filed before that date. They argued that the new information was needed in order to prepare the oral hearing. By letter of 23 January 2001 the Hearing Officer replied that the requested documents consisted of responses by other parties to the S/O and an exchange of letters with some of the parties on the further organisation of proceedings, both categories of documents not being accessible.

7. In the oral hearing which took place on 1 and 2 February 2001, the parties maintained that they had not been afforded the opportunity of taking notice of all the documents which were relevant for their defence. They criticised the Commission for the allegedly incomplete character of the case file (non-inclusion of the complaints which had led to the initiation of formal proceedings, lack of an inventory, missing of indications about the content of the non-accessible documents). The above criticisms had been rejected before by the Commission's Directorate COMP/E after consultation of the Hearing Officer.

8. The parties were invited to submit written oservations with regard both to results of the oral hearing and to an internal note of DG MARKT analysing the approximately 700 complaints by consumers mentioned in the S/O, which was sent to them on 26 February 2001. The deadline for both was the 16 March 2001.

9. During the months of April to June 2001, the parties entered into discussions with the Commission with a view to putting an end to the proceedings. Settlements were reached with Bayerische Landesbank Girozentrale, Hamburgische Landesbank Girozentrale, Landesbank Hessen Thüringen Girozentrale, Westdeutsche Landesbank Girozentrale and SEB Bank AG (former BfG Bank AG). After formal commitments from their part to substantially reduce their charges for the exchange of eurozone currencies before the beginning of the holiday season, the files were closed with regard to the above mentioned banks. Similar settlements were reached in the parallel proceedings concerning the banks in Finland (case COMP/37.788), Ireland (COMP/37.790), Belgium (COMP/37.787), Portugal (COMP/37.789), and the Netherlands (COMP/37.791). The proceedings against Commerzbank AG, Dresdner Bank AG, Bayerische Hypo- und Vereinsbank AG, Vereins- und Westbank AG and Deutsche Verkehrsbank/Reisebank AG were continued.

10. By letters received by the Commission between 13 and 30 August 2001, the latter parties claimed access to all documents in the Commission's possession containing information about the conditions upon which the files concerned had been closed in respect of other German and non-German banks, arguing that they had a right to examine whether they had become victims of discriminatory treatment by the Commission.

11. By letters of 16 and 17 August and 4 and 17 September 2001 the Hearing Officer rejected these requests. He stated that the commitments reached with the parties in non-German banking cases with a view to putting an end to infringements committed on non-German markets did not in any way affect the rights of defence of the German banks involved in a separate procedure which had been initiated against them for infringements on the German market. Regarding the reasons for the closure of the German case file in respect to the other German banks, the Hearing Officer took the view that the parties had been sufficiently informed through the Commission's press releases which contained a description of the commitments in question, and that the details of the negotiation conducted with individual banks were confidential in character and, for this reason, were not accessible to their competitors.

12. Two parties, Reisebank AG and Commerzbank AG, brought an appeal against the aforementioned letters of the Hearing Officer which they qualified as "decisions", before the Court of First Instance of the European Communities, together with an application for an injunction suspending the execution of these "decisions" and ordering the Commission not to continue the procedure initiated against the appellants until the order of the Court and, in particular, not to submit to the Advisory Committee or to the full Commission a draft of the final Commission decision, if it was disadvantageous to the appellants.

13. By order of 5 December 2001 the President of the Court of First Instance rejected the applications of the parties for an injunction. Reisebank AG and Commerzbank AG lodged an appeal against this order. The appeal does not have suspensive effect.

The Hearing Officer therefore concludes that the parties' rights of defence have not been violated. The draft decision contains only objections, in respect of which the parties have been afforded the opportunity of making known their views.