Final report of the Hearing Officer [1]

Carbonless paper — Bolloré re-adoption

(Case COMP/36.212)

2011/C 138/07

The present case concerns the re-adoption of a decision vis-à-vis the company Bolloré. In 2001, the Commission adopted a decision finding that Bolloré and other undertakings had taken part in a price-fixing and market sharing cartel in the carbonless paper sector in breach of Article 101 TFEU [2]. The decision found Bolloré liable for the infringement on account of both its direct involvement in the cartel and its liability as a parent company of Copigraph at the time of the infringement [3].

Bolloré brought an action before the General Court ("GC") complaining, inter alia, that the Commission had breached its right to be heard insofar as the Statement of Objections held it liable only on account of its parental liability and not for its direct involvement. The GC dismissed Bolloré's appeal [4]. Bolloré subsequently appealed this judgment before the European Court of Justice ("ECJ").

The ECJ found that Bolloré's rights of defence had been breached "on one essential point". According to the Court, the GC was wrong in failing to draw any legal conclusions from its finding that Bolloré's rights of defence had not been observed. In particular, the Court considered that, under the circumstances, it was not possible to exclude that the decision in its entirety was based on conduct on which Bolloré was not able to defend itself [5].

On 15 December 2009, the Commission issued a new Statement of Objections to Bolloré, considering the company liable for both its direct participation in the cartel and for its capacity as a former parent company of Copigraph.

The party received access to the file through two CD-ROMs on 22 December 2009.

An oral hearing took place on 17 March 2010.

Bolloré claimed that its rights of defence have been violated with regard to the principle of ne bis in idem and in view of the excessive duration of the procedure. Contrary to Bolloré, I do not consider that the re-adoption of the Commission's decision following the annulment of the ECJ would constitute a breach of the principle of ne bis in idem. In the PVC II case, the ECJ clarified that the principle of ne bis in idem"does not in itself preclude the resumption of proceedings in respect of the same anti-competitive conduct where the first decision was annulled for procedural reasons without any ruling having been given on the substance of the facts alleged" [6]. The Court annulled the Commission's first decision in this case because of a violation of Bolloré's right to be heard, that is to say for a breach of an essential procedural requirement. The Court did however not make any substantive findings.

Secondly, I do not share Bolloré's argument that the duration of the Commission's proceeding is excessive and therefore in breach of Article 6 of the European Convention on Human Rights and Article 41 of the Charter of Fundamental Rights of the European Union. The fact that 14 years have passed from the cessation of the infringement does not prove in itself that the Commission has failed to act in a reasonable time. The appeal lodged by Bolloré against the first decision has been pending before the European Courts for more than seven years. Therefore, more than half than the total duration of the procedure taken as a whole is not attributable to the Commission. Based on the jurisprudence of the European Courts, the period of time during which the case has been pending under appeal before the courts cannot be taken into account in determining the duration of the procedure before the Commission, even if the contested decision is finally annulled for an error attributable to the latter [7].

In any event, a failure to act within a reasonable time, if proved, would constitute a ground for annulment only where it has been proven that the infringement of that principle has adversely affected the ability of the undertaking concerned to defend itself [8]. Bolloré knew already about the parental liability objection since the first Statement of Objection notified to it in 2000 while the objection of direct involvement has been notified to it with the first 2001 decision. Moreover, Bolloré has defended itself on the substance of the Commission objections already in its appeal before the GC by contesting among others its direct involvement in the cartel. Overall, Bolloré has not provided any convincing argument to demonstrate that its rights of defence have been adversely affected as a result of the protracted administrative proceedings.

In conclusion, I do not consider that Bolloré's rights of defence have been infringed with regard to the procedural points raised by the party.

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 the party to the proceedings has been respected in this case.

Brussels, 21 June 2010.

Michael Albers

[1] 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).

[2] OJ L 115, 21.4.2004, p. 1.

[3] The then responsible Hearing Officer informed on the procedure leading to the first decision in his report of 5 December 2001 (OJ C 96, 21.4.2004, p. 39).

[4] Joined cases T-109/02 et al., Bolloré and others v Commission, ECR [2007] II-947.

[5] Joined cases C-322/07 et al., Papierfabrik August Kohler and others v Commission, not yet published in ECR, paragraphs 34-48.

[6] Joined Cases C-238/99 P et al., Limburgse Vinyl Maatschappij and Others v Commission (PVC II) [2002] ECR I-8375, paragraphs 61 and 62.

[7] Joined Cases C-238/99 P et al., Limburgse Vinyl Maatschappij and Others v Commission (PVC II), cited above, paragraphs 202-204; Joined Cases T-305/94, Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II-931, paragraph 123; Case T-57/01, Solvay v Commission [2009] not yet published in ECR, paragraph 124.

[8] Case C-105/04, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I-8725, paragraphs 42-43.

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