HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"EN
20.10.2011 Official
Journal
of
the
European
Union L
275/29
DECISIONS
DECISION 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
(Text with EEA relevance)
(2011/695/EU)
THE PRESIDENT OF THE EUROPEAN COMMISSION,
relevant case-law of the Court of Justice. In particular, the
right of the parties concerned to be heard before the
adoption of any individual decision adversely affecting
Having regard to the Treaty on European Union,
them is a fundamental right of European Union law
recognised by the Charter of Fundamental Rights, and
in particular Article 41 thereof ( 6 ).
Having regard to the Treaty on the Functioning of the European
Union,
(3)
In order to ensure the effective exercise of the procedural
Having regard to the Agreement on the European Economic
rights of the parties concerned, other involved parties
Area,
within the meaning of Article 11(b) of Regulation (EC)
No 802/2004 (hereinafter ‘other involved parties’),
complainants within the meaning of Article 7(2) of Regu
Having regard to the Rules of Procedure of the Commission (
lation (EC) No 1/2003 (hereinafter ‘complainants’) and

1 ),
and in particular Article 22 thereof,
persons other than those referred to in Articles 5 and
11 of Regulation (EC) No 773/2004 and third persons
within the meaning of Article 11 of Regulation (EC) No
Whereas:
802/2004 (hereinafter ‘third persons’) involved in
competition proceedings, responsibility for safeguarding
the observance of such rights should be entrusted to an
independent person experienced in competition matters
(1) Under
the
system
for
competition
law
enforcement
established under the Treaty on the Functioning of the
who has the integrity necessary to contribute to the
European Union (hereinafter ‘the Treaty’), the
objectivity, transparency and efficiency of those
Commission investigates and decides on cases by admin
proceedings.
istrative decision, subject to judicial review by the Court
of Justice of the European Union (hereinafter ‘the Court
of Justice’).
(4) The
Commission
created
the
function
of
hearing
officer
for these purposes in 1982, revised it in Commission
(2) The
Commission
has
to
conduct
its
competition
Decision 94/810/ECSC, EC of 12 December 1994 on
proceedings fairly, impartially and objectively and must
the terms of reference of hearing officers in competition
ensure respect of the procedural rights of the parties
procedures before the Commission
( 7 ) and in
concerned as set out in Council Regulation (EC) No
Commission Decision 2001/462/EC, ECSC of 23 May
1/2003 of 16 December 2002 on the implementation
2001 on the terms of reference of hearing officers in
of the rules on competition laid down in Articles 81 and
certain competition proceedings ( 8 ). It is now necessary
82 of the Treaty
(
to clarify and further strengthen the role of the hearing

2 ), Council Regulation (EC) No
139/2004 of 20 January 2004 on the control of concen
officer and to adapt the terms of reference of the hearing
trations between undertakings (the EC Merger Regu
officer in the light of developments in Union competition
lation) (
law.

3 ), 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 ( 4 ), and Commission Regulation (EC) No
802/2004 of 7 April 2004 implementing Council Regu
(5) The
function
of
the
hearing
officer
has
been
generally
lation (EC) No 139/2004 on the control of concen
perceived as an important contribution to the
trations between undertakings (
competition proceedings before the Commission due to

5 ), as well as in the
the independence and expertise that hearing officers have
brought to these proceedings. In order to ensure the
( 1 ) OJ L 308, 8.12.2000, p. 26.
( 2 ) OJ L 1, 4.1.2003, p. 1.
( 3 ) OJ L 24, 29.1.2004, p. 1.
( 6 ) OJ C 303, 14.12.2007, p. 1.
( 4 ) OJ L 123, 27.4.2004, p. 18.
( 7 ) OJ L 330, 21.12.1994, p. 67.
( 5 ) OJ L 133, 30.4.2004, p. 1.
( 8 ) OJ L 162, 19.6.2001, p. 21.

---

L 275/30
EN
Official Journal of the European Union
20.10.2011
continued independence of the hearing officer from the
Commission under Chapter V of Regulation (EC) No
Directorate-General for Competition, he or she should be
1/2003 to be informed of their procedural status,
attached, for administrative purposes, to the member of
namely whether they are subject to an investigation
the Commission with special responsibility for
and, if so, the subject matter and purpose of that inves
competition.
tigation. In assessing claims made in relation to privilege
against self-incrimination, the hearing officer may
consider whether undertakings make clearly unfounded
claims for protection merely as a delaying tactic.
(6) The
hearing
officer
should
be
appointed
in
accordance
with the rules laid down in the Staff Regulations of
Officials and the Conditions of Employment of Other
Servants of the European Union. In accordance with
(11) The
hearing officer should be able to facilitate the
those rules, consideration may also be given to
resolution of claims that a document is covered by
candidates who are not officials of the Commission.
legal professional privilege. To this end, if the under
Transparency as regards the appointment, termination
taking or association of undertakings making the claim
of appointment and transfer of hearing officers should
agrees, the hearing officer will be allowed to examine the
be ensured.
document concerned and make an appropriate recom
mendation, referring to the applicable case-law of the
Court of Justice.
(7) The
Commission
may
appoint
one
or
more
hearing
officers and should provide for their supporting staff.
Where the hearing officer perceives a conflict of
(12) The
hearing
officer
should
be
responsible
for
deciding
interests in the performance of his or her functions,
whether a third person shows a sufficient interest to be
the hearing officer should cease from acting on a case.
heard. Consumer associations that apply to be heard
If the hearing officer is unable to act, his or her role
should be generally regarded as having a sufficient
should be carried out by another hearing officer.
interest, where the proceedings concern products or
services used by end-consumers or products or services
that constitute a direct input into such products or
services.
(8) The
hearing
officer
should
operate
as
an
independent
arbiter who seeks to resolve issues affecting the
effective exercise of the procedural rights of the parties
concerned, other involved parties, complainants or
(13) The
hearing
officer
should decide whether
to admit
interested third persons where such issues could not be
complainants and interested third persons to the oral
resolved through prior contacts with the Commission
hearing, taking into account the contribution they can
services responsible for the conduct of competition
make to the clarification of the relevant facts of the case.
proceedings, which must respect these procedural rights.
(14) The
right
of
the
parties
concerned
to
be
heard
before
a
(9) The terms of reference of the hearing officer in
final decision adversely affecting their interests is taken is
competition proceedings should be framed in such a
guaranteed through their right to reply in writing to the
way as to safeguard the effective exercise of procedural
preliminary position of the Commission, as set out in the
rights throughout proceedings before the Commission
statement of objections and their right to develop their
pursuant to Articles 101 and 102 of the Treaty and
arguments, if they so request, at the oral hearing. In
Regulation (EC) No 139/2004, in particular the right to
order to exercise these rights effectively, parties to
be heard.
whom a statement of objections has been addressed
have the right of access to the Commission’s investi
gation file.
(10) In
order to strengthen
this
role,
the
hearing
officer
should be attributed with the function of safeguarding
the effective exercise of procedural rights of undertakings
(15) In
order
to
safeguard
the
effective
exercise
of
the
rights
and associations of undertakings in the context of the
of defence of parties to whom a statement of objections
Commission’s powers of investigation under Chapter V
has been addressed, the hearing officer should be
of Regulation (EC) No 1/2003, as well as pursuant to
responsible for ensuring that disputes about access to
Article 14 of Regulation (EC) No 139/2004 which
the file or about the protection of business secrets and
empowers the Commission to impose fines on under
other confidential information between those parties and
takings and associations of undertakings. The hearing
the Commission’s Directorate-General for Competition
officer should also be attributed with specific functions
are resolved. In exceptional circumstances, the hearing
during this investigative phase in relation to claims for
officer may suspend the running of the time period in
legal professional privilege, the privilege against self-
which an addressee of a statement of objections should
incrimination, deadlines for replying to decisions
reply to that statement until a dispute about access to file
requesting information pursuant to Article 18(3) of
has been resolved, if the addressee would not be in a
Regulation (EC) No 1/2003, as well as with regard to
position to reply within the deadline granted and an
the right of undertakings and associations of under
extension would not be an adequate solution at that
takings subject to an investigative measure by the
point in time.

---

EN
20.10.2011 Official
Journal
of
the
European
Union L
275/31
(16) In
order
to
safeguard
the
effective
exercise
of
procedural
(21) Parties
to the
proceedings
which
offer
commitments
rights while respecting the legitimate interests of confi
pursuant to Article 9 of Regulation (EC) No 1/2003, as
dentiality, the hearing officer should, where appropriate,
well as parties which engage in settlement procedures in
be able to order specific measures for access to the
cartel cases pursuant to Article 10a of Regulation (EC)
Commission’s file. In particular, the hearing officer
No 773/2004, should be able to call upon the hearing
should have the power to decide that parts of the file
officer in relation to the effective exercise of their
are made accessible to the party requesting access in a
procedural rights.
restricted manner, for example by limiting the number or
category of persons having access, and the use of the
information being accessed.
(22) The
hearing
officer
should
report
on
the
respect
for
the
effective exercise of procedural rights throughout
competition proceedings. Moreover, and separately from
his or her reporting function, the hearing officer should
(17) The
hearing
officer
should
be
responsible
for
deciding
on
also be able to make observations on the further progress
requests for the extension of time limits set for the reply
and objectivity of the proceedings and thereby contribute
to a statement of objections, a supplementary statement
to ensuring that competition proceedings are concluded
of objections or a letter of facts or time limits within
on the basis of a sound assessment of all relevant facts.
which other involved parties, complainants or interested
third persons may make comments, in case of
disagreement between any such person and the Direc
(23) When
disclosing
information
about
natural
persons,
the
torate-General for Competition.
hearing officer should have regard, in particular, to Regu
lation (EC) No 45/2001 of the European Parliament and
of the Council of 18 December 2000 on the protection
of individuals with regard to the processing of personal
(18) The
hearing
officer
should
promote
the
effectiveness
of
data by the Community institutions and bodies and on
the oral hearing, by, inter alia, taking all appropriate
the free movement of such data ( 1 ).
preparatory measures, including the circulation, in due
time before the hearing, of a provisional list of
participants and a provisional agenda.
(24) Decision
2001/462/EC,
ECSC
should
be
repealed,
(19) The oral hearing allows the parties to whom the
HAS DECIDED AS FOLLOWS:
Commission has addressed a statement of objections
and other involved parties to further exercise their right
to be heard by developing their arguments orally before
CHAPTER 1
the Commission, which should be represented by the
Directorate-General for Competition as well as other
ROLE, APPOINTMENT AND DUTIES OF THE HEARING
services that contribute to the further preparation of a
OFFICER
decision to be taken by the Commission. It should
Article 1
provide an additional opportunity to ensure that all
relevant facts – whether favourable or unfavourable to
The Hearing Officer
the parties concerned, including the factual elements
1. There shall be one or more hearing officers for
relating to the gravity and duration of the alleged
competition proceedings, whose powers and functions are laid
infringement – are clarified as much as possible. The
down in the present decision.
oral hearing should also allow the parties to present
their arguments as to the matters that may be of
importance for the possible imposition of fines.
2. The
hearing
officer
shall
safeguard
the
effective
exercise
of
procedural rights throughout competition proceedings before
the Commission for the implementation of Articles 101 and
102 of the Treaty, and under Regulation (EC) No 139/2004
(20) To
ensure
the
effectiveness
of
oral
hearings,
the
hearing
(hereinafter ‘competition proceedings’).
officer may allow the parties to whom a statement of
objections has been addressed, other involved parties,
complainants, other persons invited to the hearing, the
Commission services and the authorities of the Member
Article 2
States to ask questions during the hearing. The oral
Appointment, Termination of Appointment and Deputising
hearing should not be public so as to guarantee that
all participants can express themselves freely. Therefore,
1. The
Commission
shall
appoint
the
hearing
officer.
The
information disclosed during the oral hearing should not
appointment shall be published in the Official Journal of the
be used for a purpose other than judicial and/or adminis
European Union. Any interruption, termination or transfer of
trative proceedings for the application of Articles 101
the hearing officer shall be the subject of a reasoned decision
and 102 of the Treaty. Where justified to protect
of the Commission. That decision shall be published in the
business secrets and other confidential information, the
Official Journal of the European Union.
hearing officer should be able to hear persons in a closed
session.
( 1 ) OJ L 8, 12.1.2001, p. 1.

---

L 275/32
EN
Official Journal of the European Union
20.10.2011
2. The
hearing
officer
shall
be
attached,
for
administrative resolved, it may be referred to the hearing officer for inde
purposes, to the member of the Commission with special
pendent review. Requests related to a measure for which a
responsibility for competition (hereinafter ‘the competent
time limit applies must be made in due time, within the
member of the Commission’).
original time limit.
3. Where
the
hearing
officer
is
unable
to
act,
his
or
her
role
CHAPTER 2
shall be carried out by another hearing officer. If no hearing
officer is able to act, the competent member of the
INVESTIGATION
Commission, where appropriate after consultation of the
Article 4
hearing officer, shall designate another competent Commission
official, who is not involved in the case in question, to carry out
Procedural rights in the investigation phase
the hearing officer’s duties.
1. The
hearing
officer
shall
safeguard
the
effective
exercise
of
procedural rights which arise in the context of the exercise of
the Commission’s powers of investigation under Chapter V of
4. In case of an actual or potential conflict of interests, the
Regulation (EC) No 1/2003 and in proceedings that can result
hearing officer shall refrain from acting on a case. Paragraph 3
in the imposition of fines pursuant to Article 14 of Regulation
shall apply.
(EC) No 139/2004.
Article 3
2. In
particular,
the
hearing
officer
shall
have
the
following
Method of Operation
functions, subject to Article 3(7):
1. In
exercising
his
or
her
functions,
the
hearing
officer
shall
act independently.
(a) The hearing officer may be asked by undertakings or
associations of undertakings to examine claims that a
2. In
exercising
his
or
her
functions,
the
hearing
officer
shall
document required by the Commission in the exercise of
take account of the need for effective application of the
powers conferred on it pursuant to Article 18, 20 or 21 of
competition rules in accordance with Union legislation in
Regulation (EC) No 1/2003, in inspections pursuant to
force and the principles laid down by the Court of Justice.
Article 13 of Regulation (EC) No 139/2004 or in the
context of investigatory measures in proceedings that can
result in the imposition of fines pursuant to Article 14 of
3. In
exercising
his
or
her
functions,
the
hearing
officer
shall
Regulation (EC) No 139/2004 and which was withheld
have access to any files relating to competition proceedings.
from the Commission is covered by legal professional
privilege, within the meaning of the case-law of the Court
of Justice. The hearing officer may only review the matter if
the undertaking or association of undertakings making the
4. The
hearing
officer
shall
be
kept
informed
by
the
director
claim consent to the hearing officer viewing the information
responsible for investigating the case in the Directorate-General
claimed to be covered by legal professional privilege as well
for Competition (hereinafter ‘the director responsible’) about the
as related documents that the hearing officer considers
development of the procedure.
necessary for his or her review. Without revealing the
potentially privileged content of the information, the
hearing officer shall communicate to the director
5. The
hearing
officer
may
present
observations
on
any
responsible and the undertaking or association of under
matter arising out of any Commission competition proceeding
takings concerned his or her preliminary view, and may
to the competent member of the Commission.
take appropriate steps to promote a mutually acceptable
resolution. Where no resolution is reached, the hearing
officer may formulate a reasoned recommendation to the
6. If
the
hearing
officer
makes
reasoned
recommendations
to
competent member of the Commission, without revealing
the competent member of the Commission or takes decisions as
the potentially privileged content of the document. The
foreseen in this decision, the hearing officer shall provide a copy
party making the claim shall receive a copy of this recom
of these documents to the director responsible and the Legal
mendation.
Service of the Commission.
(b) Where the addressee of a request for information pursuant
7.
Any issue regarding the effective exercise of the procedural
to Article 18(2) of Regulation (EC) No 1/2003 refuses to
rights of the parties concerned, other involved parties within the
reply to a question in such a request invoking the privilege
meaning of Article 11(b) of Regulation (EC) No 802/2004
against self-incrimination, as determined by the case-law of
(hereinafter ‘the other involved parties’), complainants within
the Court of Justice, it may refer the matter, in due time
the meaning of Article 7(2) of Regulation (EC) No 1/2003
following the receipt of the request, to the hearing officer.
(hereinafter ‘complainants’) and interested third persons within
In appropriate cases, and having regard to the need to avoid
the meaning of Article 5 of this Decision involved in such
undue delay in proceedings, the hearing officer may make a
proceedings shall first be raised by those persons with the
reasoned recommendation as to whether the privilege
Directorate-General for Competition. If the issue is not
against self-incrimination applies and inform the director

---

EN
20.10.2011 Official
Journal
of
the
European
Union L
275/33
responsible of the conclusions drawn, to be taken into
3. Where
the
hearing
officer
considers
that
an
applicant
has
account in case of any decision taken subsequently
not shown a sufficient interest to be heard, he or she shall
pursuant to Article 18(3) of Regulation (EC) No 1/2003.
inform the applicant in writing of the reasons thereof. A time
The addressee of the request shall receive a copy of the
limit shall be fixed within which the applicant may make
reasoned recommendation.
known its views in writing. If the applicant makes known its
views in writing within the time limit set by the hearing officer
and the written submission does not lead to a different
assessment, that finding shall be stated in a reasoned decision
(c) Where the addressee of a decision requesting information
which shall be notified to the applicant.
pursuant to Article 18(3) of Regulation (EC) No 1/2003
considers that the time limit imposed for its reply is too
short, it may refer the matter to the hearing officer, in due
time before the expiry of the original time limit set. The
4. The
hearing
officer
shall
inform
parties
to
competition
hearing officer shall decide on whether an extension of the
proceedings as from the initiation of proceedings pursuant to
time limit should be granted, taking account of the length
Article 11(6) of Regulation (EC) No 1/2003 or Article 6(1)(c) of
and complexity of the request for information and the
Regulation (EC) No 139/2004 of the identities of interested
requirements of the investigation.
third persons to be heard, unless such disclosure would
significantly harm a person or undertaking.
(d) Undertakings or associations of undertakings subject to an
Article 6
investigative measure by the Commission under Chapter V
of Regulation (EC) No 1/2003 shall have the right to be
Right to an oral hearing; participation of complainants and
informed of their procedural status, namely whether they
third persons in the oral hearing
are subject to an investigation and, if so, the subject matter
and purpose of that investigation. If such an undertaking or
1. At the request of parties to whom the Commission has
association of undertakings considers that it has not been
addressed a statement of objections or other involved parties,
properly informed by the Directorate-General for
the hearing officer shall conduct an oral hearing so that such
Competition of its procedural status, it may refer the
parties can further develop their written submissions.
matter to the hearing officer for resolution. The hearing
officer shall take a decision that the Directorate-General
for Competition will inform the undertaking or association
of undertakings that made the request of their procedural
2. The
hearing
officer
may,
where
appropriate
and
after
status. This decision shall be communicated to the under
consulting the director responsible, decide to afford
taking or association of undertakings that made the request.
complainants and interested third persons within the meaning
of Article 5 the opportunity to express their views at the oral
hearing of the parties to which a statement of objections has
been issued, provided they so request in their written
comments. The hearing officer may also invite representatives
CHAPTER 3
from competition authorities from third countries to attend the
APPLICATIONS TO BE HEARD
oral hearing as observers in accordance with agreements
concluded between the Union and third countries.
Article 5
Interested third persons
1. Applications
to
be
heard
from
persons
other
than
those
CHAPTER 4
referred to in Articles 5 and 11 of Regulation (EC) No
773/2004 and third persons within the meaning of
ACCESS TO FILE, CONFIDENTIALITY AND BUSINESS SECRETS
Article 11 of Regulation (EC) No 802/2004 (hereinafter ‘third
Article 7
persons’) shall be made in accordance with Article 13(1) of
Regulation (EC) No 773/2004 and Article 16 of Regulation
Access to File and Access to Documents and Information
(EC) No 802/2004. Applications shall be submitted in writing
1. Where
a
party
which
has
exercised
its
right
of
access
to
and explain the applicant’s interest in the outcome of the
the file has reason to believe that the Commission has in its
procedure.
possession documents which have not been disclosed to it and
that those documents are necessary for the proper exercise of
the right to be heard, it may make a reasoned request for access
to these documents to the hearing officer, subject to
2. The hearing officer shall decide as to whether third
Article 3(7).
persons are to be heard after consulting the director responsible.
In assessing whether a third person shows a sufficient interest,
the hearing officer shall take into account whether and to what
extent the applicant is sufficiently affected by the conduct which
2. Subject to Article 3(7), other involved parties,
is the subject of the competition proceedings or whether the
complainants and interested third persons within the meaning
applicant fulfils the requirements of Article 18(4) of Regulation
of Article 5 may make a reasoned request to the hearing officer
(EC) No 139/2004.
in the circumstances listed hereafter:

---

L 275/34
EN
Official Journal of the European Union
20.10.2011
(a) Other involved parties who have reason to believe that they
person concerned. The decision shall specify the date after
have not been informed of the objections addressed to the
which the information will be disclosed. This date shall not
notifying parties in accordance with Article 13(2) of Regu
be less than 1 week from the date of notification.
lation (EC) No 802/2004.
3. Paragraphs 1 and 2 shall apply mutatis mutandis to the
(b) A complainant who has been informed by the Commission
disclosure of information by publication in the Official Journal
of its intention to reject a complaint pursuant to
of the European Union.
Article 7(1) of Regulation (EC) No 773/2004 and has
reason to believe that the Commission has in its possession
documents which have not been disclosed to it and that
4. Where
appropriate
in
order
to
balance
the
effective
those documents are necessary for the proper exercise of its
exercise of a party’s rights of defence with legitimate interests
rights in accordance with Article 8(1) of Regulation (EC) No
of confidentiality, the hearing officer may decide that parts of
773/2004.
the file which are indispensable for the exercise of the party’s
rights of defence will be made accessible to the party requesting
access in a restricted manner, the details of which shall be
(c) A complainant who considers that it has not received a
determined by the hearing officer.
copy of the non-confidential version of the statement of
objections in accordance with Article 6(1) of Regulation
(EC) No 773/2004 or that the non-confidential version of
CHAPTER 5
the statement of objections has not been established in a
EXTENSION OF TIME LIMITS
manner which enables it to exercise its rights effectively,
with the exception of cases where the settlement
Article 9
procedure applies.
Requests for extension of time limits
1. If an addressee of a statement of objections considers that
(d) An interested third person within the meaning of Article 5
the time limit imposed for its reply to the statement of
of this Decision who has reason to believe that it has not
objections is too short, it may seek an extension of that time
been informed of the nature and subject matter of a
limit by means of a reasoned request addressed to the director
procedure in accordance with Article 13(1) of Regulation
responsible. Such a request must be made in due time before
(EC) No 773/2004 and Article 16(1) of Regulation (EC) No
the expiry of the original time limit in proceedings pursuant to
802/2004. The same applies to a complainant in a case to
Articles 101 and 102 of the Treaty and at least 5 working days
which the settlement procedure applies who has reason to
before the expiry of the original time limit in proceedings under
believe that it has not been informed of the nature and
Regulation (EC) No 139/2004. If such a request is not granted
subject matter of the procedure in accordance with
or the addressee of the statement of objections making the
Article 6(1) of Regulation (EC) No 773/2004.
request disagrees with the length of the extension granted, it
may refer the matter to the hearing officer for review before the
expiry of the original time limit. After hearing the director
responsible, the hearing officer shall decide on whether an
3. The
hearing
officer
shall
take
a
reasoned
decision
on
a extension of the time limit is necessary to allow the addressee
request addressed to him or her under paragraph 1 or 2 and
of a statement of objections to exercise its right to be heard
communicate such decision to the person that made the request
effectively, while also having regard to the need to avoid undue
and to any other person concerned by the procedure.
delay in proceedings. In proceedings pursuant to Articles 101
and 102 of the Treaty, the hearing officer shall take into
account, among others, the following elements:
Article 8
Business secrets and other confidential information
(a) the size and complexity of the file;
1. Where
the
Commission
intends
to
disclose
information
which may constitute a business secret or other confidential
information of any undertaking or person, the latter shall be
(b) whether the addressee of the statement of objections
informed in writing of this intention and the reasons thereof by
making the request has had prior access to information;
the Directorate-General for Competition. A time limit shall be
fixed within which the undertaking or person concerned may
submit any written comments.
(c) any other objective obstacles which may be faced by the
addressee of the statement of objections making the request
in providing its observations.
2. Where
the
undertaking
or
person
concerned
objects
to
the
disclosure of the information it may refer the matter to the
hearing officer. If the hearing officer finds that the information
For the purposes of assessing point (a) of the first subparagraph,
may be disclosed because it does not constitute a business secret
the number of infringements, the alleged duration of the
or other confidential information or because there is an over
infringement(s), the size and number of documents and the
riding interest in its disclosure that finding shall be stated in a
size and complexity of expert studies may be taken into
reasoned decision which shall be notified to the undertaking or
consideration.

---

EN
20.10.2011 Official
Journal
of
the
European
Union L
275/35
2. If
other
involved
parties,
a
complainant
or
an
interested 3. The hearing officer may also ask for prior written notifi
third person within the meaning of Article 5 considers that the
cation of the essential contents of the intended statements of
time limit to make its views known is too short, it may seek an
persons invited to the hearing.
extension of that time limit by means of a reasoned request
addressed to the director responsible in due time before the
expiry of the original time limit. If such a request is not
granted or the other involved party, complainant or interested
4. The
hearing
officer
may
set
a
time
limit
for
all
persons
third person disagrees with this decision, it may refer the matter
invited to the oral hearing to provide a list of participants who
to the hearing officer for review. After hearing the director
will attend on their behalf. The hearing officer shall make this
responsible, the hearing officer shall decide on whether an
list available to all persons invited to the oral hearing in due
extension of the time limit should be granted.
time before the date of the hearing.
CHAPTER 6
Article 12
THE ORAL HEARING
Timing and conduct
Article 10
1. After consulting the director responsible, the hearing
officer shall determine the date, the duration and the place of
Organisation and function
the hearing. Where a postponement is requested, the hearing
1. The
hearing
officer
shall
organise
and
conduct
the officer shall decide whether or not to allow it.
hearings provided for in the provisions implementing Articles
101 and 102 of the Treaty and Regulation (EC) No 139/2004.
2. The
hearing
officer
shall
decide
whether
new
documents
should be admitted during the hearing and which persons
2. The oral hearing shall be conducted by the hearing officer
should be heard on behalf of a party.
in full independence.
3. The
hearing
officer
may
allow
the
parties
to
whom
a
3. The hearing officer shall ensure that the hearing is
statement of objections has been addressed, other involved
properly conducted and shall contribute to the objectivity of
parties, complainants, other persons invited to the hearing,
the hearing itself and of any decision taken subsequently.
the Commission services and the authorities of the Member
States to ask questions during the hearing. To the extent that,
exceptionally, a question cannot be answered in whole or in
4. The
hearing
officer
shall
ensure
that
the
oral
hearing part at the oral hearing, the hearing officer may allow the reply
provides addressees of the statement of objections, other
to be given in writing within a set time limit. Such written reply
involved parties, as well as complainants and interested third
shall be distributed to all participants in the oral hearing, unless
persons within the meaning of Article 5 which have been
the hearing officer decides otherwise in order to protect the
admitted to the oral hearing, with sufficient opportunity to
rights of defence of an addressee of a statement of objections
develop their views as to the preliminary findings of the
or the business secrets or other confidential information of any
Commission.
person.
Article 11
4. Where required by the need to ensure the right to be
heard, the hearing officer may, after consulting the director
Preparation of the oral hearing
responsible, afford the parties concerned, other involved
1. The
hearing
officer
shall
be
responsible
for
the
preparation parties, complainants or interested third persons within the
of the oral hearing and shall take all appropriate measures in
meaning of Article 5 the opportunity to submit further
that regard. In order to ensure the proper preparation of the
written comments after the oral hearing. The hearing officer
oral hearing, the hearing officer may, after consulting the
shall fix a date by which such submissions may be made. The
director responsible, supply in advance to the persons invited
Commission shall not be obliged to take into account written
to the hearing a list of questions on which they are invited to
comments received after that date.
make known their views. The hearing officer may also indicate
to the persons invited to the hearing the focal areas for debate,
having regard, in particular, to the facts and issues that the
Article 13
addressees of a statement of objections who have requested
an oral hearing want to raise.
Protection of business secrets and confidentiality at the
oral hearing
Each person shall normally be heard in the presence of all other
2. For
this
purpose,
after
consulting
the
director
responsible, persons invited to attend the oral hearing. The hearing officer
the hearing officer may hold a meeting with the persons invited
may also decide to hear persons separately in a closed session,
to the hearing and, where appropriate, the Commission services,
having regard to their legitimate interest in the protection of
in order to prepare for the hearing itself.
their business secrets and other confidential information.

---

L 275/36
EN
Official Journal of the European Union
20.10.2011
CHAPTER 7
CHAPTER 9
INTERIM REPORT AND RIGHT TO MAKE OBSERVATIONS
FINAL REPORT
Article 14
Article 16
Interim report and observations
Content and transmission prior to the adoption of a
decision
1. The hearing officer shall submit an interim report to the
competent member of the Commission on the hearing and the
1. The
hearing
officer
shall,
on
the
basis
of
the
draft
decision
conclusions he or she draws with regard to the respect for the
to be submitted to the Advisory Committee in the case in
effective exercise of procedural rights. The observations in this
question, prepare a final report in writing on the respect for
report shall concern procedural issues including the following:
the effective exercise of procedural rights, as referred to in
Article 14(1), at any stage of the proceedings. That report will
also consider whether the draft decision deals only with
(a) disclosure of documents and access to the file;
objections in respect of which the parties have been afforded
the opportunity of making known their views.
(b) time limits for replying to the statement of objections;
2. The
final
report
shall
be
submitted
to
the
competent
(c) the observance of the right to be heard;
member of the Commission, the Director-General for
Competition, the director responsible and the other competent
services of the Commission. It shall be communicated to the
(d) the proper conduct of the oral hearing.
competent authorities of the Member States and, in accordance
with the provisions on cooperation laid down in Protocols 23
and 24 of the EEA Agreement, to the EFTA Surveillance
A copy of the report shall be given to the Director-General for
Authority.
Competition, to the director responsible and to the other
competent services of the Commission.
Article 17
2. In addition to, and separately from, the report referred to
Submission to the Commission and publication
in paragraph 1, the hearing officer may make observations on
the further progress and impartiality of the proceedings. In so
1. The
hearing
officer’s
final
report
shall
be
presented
to
the
doing, the hearing officer shall seek to ensure in particular that,
Commission together with the draft decision submitted to it, in
in the preparation of draft Commission decisions, due account
order to ensure that, when it reaches a decision on an individual
is taken of all the relevant facts, whether favourable or unfa
case, the Commission is fully apprised of all relevant
vourable to the parties concerned, including the factual elements
information as to the course of the procedure and that the
relevant to the gravity and duration of any infringement. Such
effective exercise of procedural rights has been respected
observations may relate to, inter alia, the need for further
throughout the proceedings.
information, the withdrawal of certain objections, the formu
lation of further objections or suggestions for further investi
gative measures pursuant to Chapter V of Regulation (EC) No
2. The
final
report
may
be
modified
by
the
hearing
officer
in
1/2003.
the light of any amendments to the draft decision prior to its
adoption by the Commission.
The Director-General for Competition, the director responsible
and the Legal Service shall be informed of such observations.
3. The
Commission
shall
communicate
the
hearing
officer’s
final report, together with the decision, to the addressees of the
decision. It shall publish the hearing officer’s final report in the
CHAPTER 8
Official Journal of the European Union, together with the decision,
having regard to the legitimate interest of undertakings in the
COMMITMENTS AND SETTLEMENTS
protection of their business secrets.
Article 15
Commitments and settlements
CHAPTER 10
1. Parties
to
the
proceedings
which
offer
commitments
to
FINAL PROVISIONS
meet the concerns expressed to them by the Commission in
its preliminary assessment pursuant to Article 9 of Regulation
Article 18
(EC) No 1/2003 may call upon the hearing officer at any stage
Repeal and transitional provision
in the procedure pursuant to Article 9, in order to ensure the
effective exercise of their procedural rights.
1. Decision
2001/462/EC,
ECSC
is
repealed.
2. Parties
to
proceedings
in
cartel
cases
which
engage
in
2. Procedural steps already taken under Decision
settlement discussions pursuant to Article 10a of Regulation
2001/462/EC, ECSC shall continue to have effect. In relation
(EC) No 773/2004 may call upon the hearing officer at any
to investigatory measures that were taken before the entry into
stage during the settlement procedure in order to ensure the
force of this Decision, the hearing officer may decline to
effective exercise of their procedural rights.
exercise his or her powers pursuant to Article 4.

---

EN
20.10.2011 Official
Journal
of
the
European
Union L
275/37
In cases where the initiation of proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003 or the
initiation of proceedings pursuant to Article 6(1)(c) of Regulation (EC) No 139/2004 took place before the
entry into force of the present Decision, the interim report pursuant to Article 14 of the present Decision
and the final report pursuant to Article 16 shall not cover the investigation phase, unless the hearing officer
decides otherwise.
Article 19
Entry into force
This Decision shall enter into force on the day following its publication in the Official Journal of the European
Union.
Done at Brussels, 13 October 2011.
For the Commission
The President
José Manuel BARROSO

---