Final report of the Hearing Officer in Case COMP/38710 — Bitumen Spain

(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)

2009/C 321/07

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

The investigation started following an immunity application from BP on 20 June 2002 under the Commission notice on immunity from fines and reduction of fines in cartel cases (the Leniency Notice) (1). The application covered alleged anti-competitive behaviour in the bitumen sector in the Netherlands, Belgium and Spain (2). On 19 July 2002 the Commission granted BP conditional immunity.

Unannounced inspections were carried out on 1 and 2 October 2002 at the premises of BP España SA, Composán Construcción SA, Nynäs Petróleo SA, Petrogal Española SA, Petrogal SA, Galp Energia, SGPS SA, Productos Asfálticos SA, Probisa Tecnología y Construccíon SA and Repsol YFP Lubricantes y Especialidades SA.

Subsequently, Repsol and Proas applied for leniency under the Leniency Notice and, by letters dated […] (3), the relevant Commission services informed them of its intention to apply a reduction of fine within the bands specified in point 23 of the Leniency Notice.

On 22 August 2006 the Commission adopted a Statement of Objections, which was addressed to 13 legal entities belonging to five different undertakings (Repsol, Proas, BP, Nynäs and Petrogal). In the Statement of Objections, the Commission took the preliminary view that from at least 1 March 1991 to at least 1 October 2002 the undertakings concerned had participated in a single complex and continuous infringement of Article 81(1) EC and announced its intention to adopt an infringement decision and to impose fines. According to the Commission the parties had agreed on market quotas, volume and customer allocation, exchanged sensitive market information, established a compensation mechanism and agreed on prices. The cartel covered the territory of Spain, excluding the Canary Islands. Moreover, in the Statement of Objections the Commission took the preliminary view that BP had failed to meet its obligations under the Leniency Notice and that a final decision whether or not the Commission would grant BP immunity from fines would be taken in the final decision.

Proas, Petrogal and Nynäs requested an extension of the deadline to reply to the Statement of Objections. While I partially granted the requests of Proas and Nynäs I rejected Petrogal’s request, as it failed to adequately justify it. All parties replied in due time.

The addressees of the Statement of Objections were granted access to the file in the form of a CD-ROM. Oral statements and documents submitted to the Commission in the framework of the Leniency Notice, were made accessible at the Commission’s premises.

Petrogal and Nynäs requested further access to non-accessible documents in the file relating to similar/neighbouring products and/or other geographic markets, which were not part of the objections raised in the SO.

In my view, access to file is a tool to ensure that the parties’ rights of defence are fully adhered to and can therefore only relate to information related to the factual and legal circumstances contained in the SO on which the Commission bases its objections. After examining Petrogal’s and Nynäs’ requests I concluded that the requested documents were objectively unrelated to the allegation of facts and of law contained in the SO and that, accordingly, access to those documents was not required for the proper exercise of their rights of defence.

Moreover, Nynäs complained about the practical arrangements under which access was granted to the file on the Commission’s premises and claimed that they hamper the proper exercise of their rights of defence. In particular, Nynäs claimed that transcripts of interviews were inaccurate with parts omitted and hence unreliable.

In a letter dated 31 October 2006 I informed Nynäs that, in my view, access to file at the Commission premises for particularly sensitive documents submitted by leniency applicants had been organised in such a way that it protected the legitimate interest of leniency applicants while at the same time safeguarding Nynäs right to be heard. With regard to alleged inaccurate transcripts I took particular note of the fact that Nynäs had subsequently been granted access to the original tapes and that, therefore, the issue had been resolved in terms of due process. Accordingly, I concluded that the access arrangements had not impaired the proper exercise of Nynäs rights of defence.

At the request of the parties an oral hearing was held in accordance with Article 12 of Commission Regulation 773/2004 on 12 December 2006. All addresses of the SO, except Cepsa, Repsol YFP S.A. and Repsol Petróleo S.A. attended the hearing.

In light of the written replies to the Statement of Objections and presentations at the oral hearing the duration of the participation in the infringement, as described in the Statement of Objections, has been reduced for Petrogal. In addition, following further submissions by BP in response to the Statement of Objections, the Commission has found that BP has fulfilled all conditions under the Leniency Notice and would hence qualify for immunity from any fines that would otherwise have been imposed on it.

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 parties right be 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.

(2)  Initially, the alleged anti-competitive activities were subject to a common investigation. However, during the investigation it become clear that the behaviour in the three different Member States were not objectively linked to each other and the investigation was split into three different cases.

(3)  2.8.2006 (corrigendum — 9.6.2009).