52003XX0930(04)

Final report of the Hearing Officer in case COMP/M.2706 - Carnival Corporation/P & O Princess Cruises

(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 233/09)

(Text with EEA relevance)

The draft decision submitted to the Commission under Article 8(2) of Council Regulation (EEC) No 4064/89 prompts a number of remarks concerning respect for the right to be heard.

As regards the right of the parties involved, the merger operation analysed has a special feature in that two firms are in competition on the market to take control of the target company.

The result was a climate in which these firms were very reluctant to pass on information to the others. This caused a number of difficulties of access to the file for firms entitled to such access in particular Carnival Corporation. These were resolved as and when they arose, in particular through the exchange of many letters and e-mails between the Commission and the firms.

Carnival was given additional time to reply to the Statement of Objections, in particular because information relating to the target, which is as a rule supplied to the potential buyer for the notification, had not been supplied in the context of a hostile takeover bid.

Carnival, as the notifying party, and P & O Princess Cruises, as an involved party, were entitled to present their arguments orally in a formal hearing under Article 14(1) and (2) of Commission Regulation (EC) No 447/98. They expressly waived this right.

The right of third parties to be heard is different and less extensive, since third parties are only indirectly involved in the operation. Recitals 9 to 14 of Regulation No 447/98 illustrate in particular the differences in the approach of the legislator on this point.

Article 16(1) of Regulation (EC) No 447/98, based on Article 18(4) of Regulation (EEC) No 4064/89, entitles them to be informed in writing of the nature and subject matter of the procedure if they can demonstrate sufficient interest to present their written observations and where appropriate to take part in a formal hearing.

In the instant case, Royal Caribbean Cruises Limited wrote to me asking specifically to organise a formal hearing to which it would be admitted, even if the parties did not ask for a hearing.

I acknowledged the legitimate interest of this firm to take part, if necessary as an involved third party, in a hearing if one was requested by the parties referred to in Article 14(1) and (2) of Regulation (EC) No 447/98. In the end this was not the case and I concluded that the third parties in a case are in no way entitled to demand that the Commission call a formal hearing.

Although this request by Royal Caribbean was not accepted, it should be noted that the firm was given a full hearing, to an extent compatible with its status as a third party in the case.

This firm made its views known to the Commission in writing on all the circumstances of the case, in full detail and on a number of occasions.

What is more, strict application of Royal Caribbean's right to be heard would have simply meant, pursuant to Regulation (EC) No 447/98, informing it, in what would inevitably be summary form about the nature and subject matter of the procedure.

Royal Caribbean did, however, receive - with the agreement of Carnival - a copy of the non-confidential version of the Statement of Objections.

I therefore conclude that the notifying party, Carnival, the party involved, P & O Princess, and the third parties, including especially Royal Caribbean, were able to exercise their right to be heard in this case in accordance with the rules.

Done at Brussels, 23 July 2002.

Serge Durande