Final report of the Hearing Officer in Case COMP/39.406 — Marine Hoses (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 )
OJ C 168, 21.7.2009, p. 3–4 (BG, ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)
BG CS DA DE EL EN ES ET FI FR HU IT LT LV MT NL PL PT RO SK SL SV
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Final report of the Hearing Officer in Case COMP/39.406 — Marine Hoses
(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)
The draft Decision in the above-mentioned case gives rise to the following observations.
Marine hoses are used to load oil and other petroleum products from offshore facilities onto vessels and offload them back to offshore facilities. In December 2006 the Commission received an immunity application from a marine hoses manufacturer and carried out surprise inspections at the premises of several other manufacturers and a consultancy agency, and conducted a search of a private home in May 2007. The inspections were followed by leniency applications. On the basis of the collected information, the Commission came to the preliminary conclusion that six groups of undertakings had participated in a single and continuous infringement of Article 81 of the Treaty and Article 53 of the EEA Agreement for different periods between 1 April 1986 and 2 May 2007 by (i) allocating tenders and customers; (ii) fixing prices, quotas and sales conditions; and (iii) exchanging sensitive information with regard to marine hoses.
Statement of Objections and Time to Reply
On 29 April 2008, the Commission notified a Statement of Objections ("SO") to the following parties: Bridgestone Industrial Ltd and its ultimate parent company Bridgestone Corporation ("Bridgestone"); Yokohama Rubber Company Ltd ("Yokohama"); Dunlop Oil and Marine Ltd ("DOM") and its parent companies ContiTech AG ("ContiTech") and Continental AG ("Continental"); Trelleborg Industrie SAS and its parent company Trelleborg AB ("Trelleborg"); Parker ITR Sri ("Parker ITR") and its parent company Parker Hannifin Corporation ("Parker Hannifin") and Manuli Rubber Industries SpA ("Manuli").
The addressees of the SO were originally granted a deadline of six weeks to reply to the SO starting the day after they were informed that the DVD was available for collection. Upon reasoned requests, I granted extensions of two weeks to Bridgestone, Parker and Manuli and of eight days to DOM.
Access to the file
The parties were given access to the file via a DVD which they received between 30 April and 5 May 2008. Oral statements made by the immunity applicant and the leniency applicants were made accessible at the Commission's premises.
On 18 June 2008, Bridgestone addressed a letter to me in connection with certain documents referred to in the SO. The SO referred to two floppy discs found at the premises of a consultancy agency containing "several dozens of communications" (faxes) between cartel members about tender allocations. The case file itself, however, contained only a screenshot of a list and some samples of the faxes that were on the list. In Bridgestone's view, this impaired their rights of defence. After examining the file, I took the view that the screenshot could not be used as "general evidence" against the parties, since the individual faxes on the list (with some exceptions) were not made accessible and the parties were not provided with the opportunity to comment on each of them. In the draft Decision, the Commission relies only on the faxes in the file that were made accessible to the parties.
No other issues regarding access to file were brought to my attention.
The Oral Hearing was held on 23 July 2008 and was attended by the representatives of Yokohama, Manuli, Bridgestone, Parker and Trelleborg. DOM and its parent companies waived their right to an oral hearing.
In the draft Decision, the Commission has found that although the cartel underwent a period of limited activities between 13 May 1997 and 11 June 1999 (between 13 May 1997 and 21 June 1999 for Trelleborg and between 13 May 1997 and 9 May 2000 for Manuli), there was a clear continuity of the cartel before and after these dates and, thus, the infringement is to be considered as single and continuous. The Commission has held the addressees liable for the period of limited activity, but this period has not been taken into account for the purpose of determining the fines.
The Commission has also found that, contrary to the findings of the SO, Manuli's participation at the cartel before 3 September 1996 may have been prescribed. The Commission has decided in its discretion not to impose a fine on Manuli for the period ending on 1 August 1992. Furthermore, the Commission has concluded that the theory of economic succession does not apply to DOM and, therefore, the company has been held liable only as of the date when it acquired the marine hoses business assets.
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 of all participants to the proceedings has been respected in this case.
Brussels, 22 January 2009.