Final report of the Hearing Officer in Case COMP/F/38.638 — BR/ESBR

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(2008/C 7/05)

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

The present case was initiated following an application for immunity by the German company Bayer AG in December 2002 and January 2003 under the Commission notice of 20 June 2002 on immunity from fines and reduction of fines in cartel cases (1) (the Leniency Notice). Subsequently, on 27 March 2003, an inspection was carried out at the premises of Dow Deutschland GmbH & Co. OHG (now Dow Deutschland Anlagengesellschaft mbH).

On 7 June 2005, the Commission issued a first Statement of Objections. A second Statement of Objections replacing the previous statement was adopted on 6 April 2006. The reasons for this included: new evidence provided in the parties' replies to the Statement of Objections, and the need to clarify certain factual and legal circumstances, such as the liquidation of one original addressee and the addition of a new addressee.

In the second Statement of Objections the Commission took the preliminary view that the following 15 companies had participated in a cartel in infringement of Article 81 of the EC Treaty and Article 53 of the EEA Agreement.

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

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

Bayer AG's reply to the second Statement of Objections contained potentially incriminating as well as exculpatory elements. Accordingly, all parties to the proceedings received a copy of the reply and were invited to express their views on the content.

Most parties requested an oral hearing in accordance with Article 12 of Commission Regulation (EC) No 773/2004. The hearing was held on 22 June 2006. All parties with the exception of Trade-Stomil Ltd were present at the hearing.

In light of the written and oral statements provided to the Commission services, the infringement as described in the Statement of Objections, has been revised: in particular the objections raised against two addressees (Chemical Company Dwory S.A. and Syndial SpA) have been dropped and the duration of the participation for three other parties (Unipetrol a.s., Kaucuk a.s. and Trade-Stomil Ltd) has been reduced.

Involvement of third party

On 22 December 2005, Manufacture Française des Pneumaticques Michelin (Michelin) was admitted to the proceedings as an interested third party under Article 27(3) of Council Regulation (EC) No 1/2003 and Article 11(1) of Regulation (EC) No 773/2004. It was accordingly informed of the nature and subject matter of the proceedings and invited to make known its views, which it subsequently did. Michelin also attended the oral hearing. Michelin was subsequently admitted as a complainant on the basis of a formal substantiated complaint pursuant to Article 5 of Regulation (EC) No 773/2004 and Article 7 of Regulation (EC) No 1/2003, which was filed on 12 May 2006. In accordance with Article 6(1) of Regulation (EC) No 773/2004 Michelin received a non-confidential version of the Statement of Objections and was invited to make its views known. Michelin submitted its comments by letter dated 15 November 2006.

By letter dated 9 November 2006 addressed to me, Syndial SpA and Polimeri Europa SpA contested Michelin's status as a complainant in the proceedings and questioned the latter's right to receive a non-confidential version of the Statement of Objections. By letter dated 10 November 2006 I confirmed to Syndial SpA and Polimeri Europa SpA that the Commission had determined to grant Michelin the status as a complainant on the basis of a legitimate interest. Since Michelin, as a complainant, has a statutory right to receive a non-confidential version of the Statement of Objections and since the legitimate interest in confidentiality of Syndial and Polimeri had been taken into account by the Commission services, I informed the two companies that their submission would not require any further action on my part in the matter.

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

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

(1)  OJ C 45, 19.2.2002, p. 3.