Final Report of the Hearing Officer (1)

AT.40178 – Car Emissions

(Text with EEA relevance)

(2021/C 458/10)

The draft decision, addressed to DAIMLER (2), VW (3) and BMW (4) (collectively the ‘Parties’), concerns a single and continuous infringement of Article 101(1)(b) TFEU and Article 53(1)(b) of the EEA Agreement, covering the entire EEA, that took place between 25 June 2009 and 1 October 2014. The draft decision finds that the undertakings comprising the Parties participated in that infringement, which consisted in agreements and/or concerted practices in the form of competitor contacts, by which they coordinated their market conduct in respect of selective catalytic reduction (‘SCR’)-systems used in passenger cars with diesel engine sold in the EEA.

The case stems from an application for immunity from fines, followed by a leniency application from another undertaking.

On 18 September 2018, the Commission initiated proceedings pursuant to Article 2(1) of Regulation (EC) No 773/2004 (5) against the Parties.

On 5 April 2019, the Commission adopted a statement of objections addressed to the Parties (the ‘Original SO’) and granted them access to file.

On 18 October and 21 November 2019, the Hearing Officer received two respective requests for access to documents, under Article 7 of Decision 2011/695/EU, by BMW. Both requests were rejected in their entirety.

On 12 and 13 December 2019, the Commission received the Parties’ written submissions in response to the Original SO after several prolongations of the deadline, in which they also requested to develop their arguments at an oral hearing (6).

The Parties subsequently indicated that they would be interested in settlement discussions. The Commission formally offered the parties to switch to the settlement procedure pursuant to Article 10a of Regulation (EC) No 773/2004 on 2 February 2021. Following settlement discussions (7) and settlement submissions (8) in accordance with Article 10a(2) of Regulation (EC) No 773/2004, the Commission adopted a statement of objections under the settlement procedure (the ‘Settlement SO’) addressed to the Parties on 21 May 2021 (9).

In their respective replies to the Settlement SO, the Parties confirmed pursuant to Article 10a(3) of Regulation (EC) No 773/2004 that the Settlement SO reflected the contents of their settlement submissions and that they remained committed to following the settlement procedure.

Pursuant to Article 16 of Decision 2011/695/EU, I have examined whether the draft decision deals only with objections in respect of which the Parties have been afforded the opportunity of making known their views. I conclude that it does so.

In view of the above, and taking into account that the Parties have not addressed any further requests or complaints to me (10), I consider that the effective exercise of the procedural rights of the Parties to the proceedings in this case has been respected.

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(1)  Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29).

(2)  Daimler AG.

(3)  Volkswagen AG (‘Volkswagen’), Audi AG (‘Audi’) and Dr. Ing. h.c. F. Porsche AG (‘Porsche’) (Volkswagen, Audi and Porsche together ‘VW’).

(4)  BMW AG.

(5)  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18).

(6)  In accordance with Article 12(1) of Regulation (EC) No 773/2004.

(7)  The settlement meetings took place between 23 February and 29 March 2021.

(8)  The Parties submitted their formal requests to settle on 27 and 28 April 2021.

(9)  In accordance with Article 12(2) of Regulation (EC) No 773/2004, the Parties had confirmed that they would only require having the opportunity to develop their arguments at an oral hearing if the Settlement SO would not reflect the contents of their settlement submissions.

(10)  Under Article 15(2) of Decision 2011/695/EU, parties to the proceedings in cartel cases that engage in settlement discussions pursuant to Article 10a of Regulation (EC) No 773/2004 may call upon the hearing officer at any stage during the settlement procedure in order to ensure the effective exercise of their procedural rights. See also paragraph 18 of Commission Notice 2008/C 167/01 on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ C 167, 2.7.2008, p. 1).