Final Report of the Hearing Officer in Case COMP/C.39181 — Paraffin Waxes, renamed ‘Candle Waxes’

(Pursuant to Article 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.

Leniency applications & Statement of Objections

Subsequent to an immunity application under the 2002 Leniency Notice from Shell in […], the Commission carried out inspections at the premises of Sasol (Germany), H&R/Tudapetrol (Germany), Esso/ExxonMobil (Netherlands and Germany), Total (France), Repsol (Spain), ENI (Italy), and MOL (Hungary) in April 2005. The Commission granted conditional immunity to Shell on […].

The Commission received further leniency applications from Sasol ([…]), Repsol ([…]) and ExxonMobil ([…]). On 16 May 2007, the Commission addressed letters to Sasol, Repsol and ExxonMobil informing them that immunity was not available and, pursuant to point 26 of the Leniency Notice, of its intention to apply a reduction of a fine within a specified band as provided for in the Leniency Notice.

The Commission also received an application for immunity (or alternatively leniency) from RWE after the notification of the Statement of Objections (‘SO’). Since immunity was no longer available, the Commission informed RWE accordingly on 30 November 2007, and stated that the final position of each undertaking, including RWE, would be determined at the end of the administrative procedure in any decision adopted.

The Statement of Objections (SO) was adopted on 25 May 2007 and sent to the following companies or groups of companies: ENI S.p.A.; Exxon Mobil Corporation (USA) and its subsidiaries Esso Deutschland GmbH, Esso Société Anonyme Française and ExxonMobil Petroleum and Chemical B.V.B.A. (‘ExxonMobil’); Tudapetrol Mineralölerzeugnisse Nils Hansen KG, Hansen & Rosenthal KG and its subsidiaries H&R ChemPharm GmbH and H&R Wax Company Vertrieb GmbH (‘H&R/Tudapetrol’); MOL Nyrt.; Repsol YPF S.A. and its subsidiaries Repsol Petroleo S.A. and Repsol YPF Lubricantes y Especialidades S.A. (Rylesa) (‘Repsol’); Sasol Limited (South Africa) and its subsidiaries Sasol Wax GmbH, Sasol Wax International AG and Sasol Holding in Germany GmbH (‘Sasol’); Shell Deutschland Oil GmbH, Shell Deutschland Schmierstoffe GmbH, Deutsche Shell GmbH, Shell International Petroleum Company Limited (SIPC), the Shell Petroleum Company Limited (SPCO), Shell Petroleum N.V. and the Shell Transport and Trading Company Limited (‘Shell’); RWE AG and its subsidiary RWE Dea AG (‘RWE’); Total S.A. and Total France S.A. (‘Total’); and four other entities within one or more of the above groups.

Access to File

The parties received the SO on 30 or 31 May 2007, and were given eight weeks from the time of access to the file to reply, or until 31 July 2007 at the latest. Access to the file was granted in the form of a DVD and access to other documents at the Commission premises. Extensions were granted until 14 August 2007 or 21 August 2007 upon request, based on the arguments of the parties concerned. All parties replied on time.

Subsequently, the Commission requested additional information from a company (not an addressee of the SO) that had held partial interest in Sasol’s wax business. Sasol was given access to the response to this request for information, and submitted written comments on it.

The Oral Hearing

An oral hearing was held on 10-11 December 2007. Except for Repsol Petroleo SA and Repsol YPF SA, all parties exercised their right to be heard orally. The oral hearing did not give rise to any procedural issues. The hearing was valuable both for the parties and for the Commission in that it contributed to the elucidation of certain elements of substance.

Both Total S.A. and RWE complained in their written replies and at the hearing that their rights of defence had been violated due to a lack of information at the investigative stage of the procedure. Total complained that although the Commission addressed an investigation decision to Total S.A. and its subsidiaries, it never carried out an investigation at Total S.A., and never requested any information from Total S.A. RWE argued that it should have been informed of the investigations so that it could have filed a leniency application. I do not accept these lines of argumentation. Pursuant to Article 27, paragraph 1, Council Regulation (EC) No 1/2003 the Commission shall give undertakings the opportunity to be heard ‘before taking decisions’. Thus, the right to be heard orally and also to make statements in writing is intrinsically linked to the concrete allegations as expressed in the SO. It is not recognized in the phase of the investigation before the Commission has formulated its objections.

The Draft Decision

Following the parties written and oral submissions, the Commission dropped its objections against four of the addressees of the SO.

The duration of the infringement insofar as it relates to slack wax has been shortened as compared to the SO, to six years; the number of parties held liable for the slack wax infringement has been reduced; and the geographical scope is limited to Germany.

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.

An issue relating to confidentiality of the draft Decision’s text arose on 4 August 2008, when lawyers representing H&R and Tudapetrol wrote to me contesting DG Competition’s proposed treatment of turnover figures in the draft Decision. On 2 September 2008 I replied by providing further explanations and clarifications as to the Commission’s intentions in this respect and stating that, in my view, the proposal to use turnover figures averaged over three years resolved any confidentiality concerns. Following receipt of this letter, the parties decided not to pursue this issue further.

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