Final Report of the Hearing Officer on the procedure in the Case COMP/38.121 — Fittings

(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)

(2007/C 255/13)

Mueller Industries Inc. submitted an application for leniency under the 1996 Commission Notice on the non-imposition or reduction of fines in cartel cases in January 2001. The other leniency applicants were IMI in September 2003, Delta in March 2004, Frabo in July 2004, and Oystertec in May 2005.

On 22 and 23 March 2001, the Commission carried out inspections concerning both copper tubes and fittings, after which it was decided to separate the case into copper plumbing tubes (38.069), industrial tubes (38.240) and fittings (38.121). On 24 and 25 April 2001, inspections covering only fittings were carried out at the premises of the Delta group. From February/March 2002, the Commission addressed several requests for information under Article 11 of Regulation No 17 and later under Article 18 of Regulation No 1/2003 to all the parties concerned.

This draft decision concerns the last of the three cases, the other two having already been subject of Decisions by the Commission.

Statement of objections and access to file

On 22 September 2005, the Commission issued a Statement of Objections (‘SO’) which was sent to 30 companies and one association, describing a single and continuous infringement on a Europe-wide scale over a period of 13 years. All the parties replied in due time, except for one addressee, Supergrif SL, which was sold by Delta in October 2002 to Supergrif's management, and did not respond to the SO. No third parties were involved in the procedure, as is usually the situation in a cartel case.

By letter of 22 December 2005, Aalberts requested access to the replies of the other parties to the SO, as did IMI by letter of 23 December 2005. These requests were refused by the Commission services, since it is consistent Commission practice for access to the file to be granted upon request and normally on a single occasion, following the notification of the Commission's objections to the parties.

As a general rule, therefore, no access is granted to other parties' replies to the Commission's objections. Further, it is settled law (Judgement of the Court of First Instance of 15 March 2000 in Joined Cases T-25/95 and others, Cimenteries paragraph 380 and subsequent) that the Commission is under no duty to provide the answers to the SO to all the parties.

Oral Hearing

However, at the oral hearing, which took place on 26-27 January 2006, I accepted that it was necessary for their rights of defence for Tomkins and Pegler to exchange their replies to the SO. Given that the Commission took the view that Tomkins is responsible for Pegler, its subsidiary, and would draw on Pegler's reply to support this view, and that Pegler in turn should have been able to know what evidence Tomkins' assertions were based on, they agreed that they should have access to each others' replies, which led to a lively debate between the two companies.

Except for Comap, Flowflex and Supergrif, all the recipients of the SO were present at the hearing.

Draft final decision

The objections relating to FNAS contained in the Statement of Objections are not sustained in the draft Decision. In the light of the explanations supplied in FNAS's written reply to the SO and at the hearing, it was decided not to continue the proceedings against FNAS, because it has not been involved in the infringements.

The draft decision submitted to the Commission only contains objections in respect of which the parties have been afforded the opportunity of making known their views. I consider that the rights of the parties to be heard have been respected.