Final report of the Hearing Officer in case COMP/36.571 - Austrian Banks

(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))

(2004/C 48/03)

The draft decision gives rise to the following observations on the rights to be heard:

A statement of objections was sent to eight Austrian banks on 13 September 1999 (received on 15 September 1999) relating to their participation in alleged cartel covering a wide range of banking activities (the Lombard cartel). Further to their request the deadline for their reply was extended from 15 November to 9 December 1999. The parties replied to the statement both in writing and orally at an oral hearing that took place on 18 and 19 January 2000. Thereafter, a supplementary statement of objections was sent to the (same eight) parties on 22 November 2000 relating to alleged collusion on conversion charges. The parties again replied in writing and orally at an oral hearing that took place on 27 February 2001. The objections set out in the supplementary statement are not maintained in the draft decision.

Following the supplementary statement of objections the parties claimed full access to parallel files established by the Commission relating to suspected infringements of Article 81 EC in other Member State markets for the exchange of euro-zone currencies. The Hearing Officer concluded that the parties had already obtained access to all documents from these parallel files that were objectively related to the objections set out in the present case. In the event, this issue is no longer relevant for the purpose of the present draft decision since, as stated above, the objections set out in the supplementary statement of objections are not maintained.

The parties also raised objections to an expert opinion commissioned by the Commission to evaluate an economic study submitted by the banks themselves. The banks disputed the validity of the findings made in the commissioned expert opinion because the latter's authors had apparently not been in the possession of all relevant facts of the case. The parties therefore requested that the expert opinion be removed from the file and ignored for the purposes of the decision. The parties also requested that they be granted an additional (third) oral hearing in the event that their first request was not granted. The Hearing Officer rejected the first request on the basis that it was for the Commission to evaluate the content of the expert opinion. What was important in this context for the parties was that their rights to the defence were guaranteed, namely, access to the study itself and the opportunity to comment on it. The Hearing Officer determined that an oral hearing was not necessary for this purpose. However, the parties were granted additional information relating to the expert opinion in accordance with the Commission notice on access to file. In the event, the commissioned expert opinion is no longer a relevant issue for the purpose of the present case since the Commission does not rely on it in the draft decision.

In the course of the procedure the Commission decided to admit Freiheitliche Partei Österreich ("FPÖ") as complainant in this case. The parties contested that FPÖ should be considered as having legitimate interest in the meaning of Article 3 Regulation 17. On 27 March 2001 the Hearing Officer wrote to those banks which continued to contest this point informing them that the FPÖ had repeated their request for transmission of the non-confidential version of the two statements of objections in this case and that he proposed to accede to their request. A proposed non-confidential version of the documents was attached. Following additional correspondence between the Hearing Officer and the parties on this issue, decisions under Article 9(2) of the Commission Decision of 23 May 2001 on the terms of reference of the Hearing Officers in certain competition proceedings were addressed to PSK and Erste on 9 August 2001. In these decisions, the Hearing Officer stated that it was not for the Hearing Officer to decide upon applications under Article 3(2) of Council Regulation No 17 of 1962, rather the Commissioner responsible for competition matters in the name of the Commission. The decision to admit the FPÖ as complainant in this case had been taken by Mr Van Miert, and subsequently confirmed by Mr Monti. This decision was a preparatory step in the administrative procedure and not an appeallable measure in itself. As to the non-confidential version of the statements of objections the Hearing Officer rejected the request to delete the names of the banks on the basis that this did not constitute a business secret. However, data on the current and future economic policies of the banks, together with the names and functions of natural persons would be deleted.

On 19 September 2001 PSK brought an application before the Court of First Instance to annul this decision together with an application to suspend the operation of the contested decision and to order the Commission not to transmit the two statements of objections to the FPÖ. On 20 December 2001 the President of the Court rejected this request. The President ruled that the requirements of serious and irreparable damage and urgency were not established by the applicant and that in considering the balance of interests, determined that the community interest whereby third parties recognised as complainants by the Commission should be able to present useful comments on the objections raised by the Commission should prevail over the interests of the applicant in preventing the transmission of the statements of objections.

Following the order granted by the President of the Court, the non-confidential version of both statements of objections was sent to the FPÖ on 9 January 2002 in order to enable them to express their views. Further to an instruction from the Hearing Officer the FPÖ were informed by the service responsible for the case in DG Competition that the documents were intended exclusively to enable them to exercise their rights to be heard as complainants in this case and not for any other purpose, in particular, the transmission to any third party. They were subsequently informed in addition that the documents set out the preliminary view of the Commission, and the banks had to be regarded as innocent prior to any final decision of the Commission. On 15 February 2002, the FPÖ requested full access to the file and an oral hearing. Access to the file was rejected since there was no legal basis for such access. In addition, the Hearing Officer rejected the request for an oral hearing since this would result in a further delay to the procedure and was not likely to bring any significant added value to the case. The Hearing Officer also noted with regret that the FPÖ had made the statements of objections available to the public. Such behaviour had no connection with the rights of the FPÖ as complainant in the Commission's cartel procedure in the present case.

In the light of the above, I conclude that the rights to be heard have been respected in this case. The draft decision deals only with objections in relation to which the parties have been afforded the opportunity of making known their views.

Done at Brussels, 27 May 2002.

Karen Williams