European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

Article 14 of Regulation No 773/2004 and Articles 10 et seq. of Commission Decision No 2011/695 on the function and terms of reference of the hearing officer in certain competition proceedings set out the conduct of hearings. The Commission, through the hearing officer, invites the persons to be heard on a date determined by it. Officials and civil servants of other authorities of the Member State …

Conduct of hearings

In order to respect the rights of defense, each undertaking or association of undertakings concerned must be given the opportunity to be heard on the objections that the Commission intends to raise in the final decision. In fact, the right to a hearing provided for in Article 12 of Regulation No 773/2004 only exists following the issuance by the Commission of a Statement of Objections, and not a simple letter setting out the facts . The right to be heard means the opportunity for the undertakings concerned of submitting not only written but also oral observations. The Commission may therefore organize hearings in addition to the written stage of the procedure. The opening of those hearings is however not automatic and must be requested by the undertakings and persons concerned in their written submissions . This applies to the parties to whom objections have been addressed , complainants  or third parties, showing a sufficient interest . The Commission also has the option, but not the obligation, of giving any other person the opportunity to express his or her point of view orally, provided that in exercising this option it does not manifestly exceed the limits of its discretionary power .

The Commission has a reasonable margin of discretion to decide how expedient it may be to hear persons . It may freely decide to hear third parties who have not lodged any complaint or submitted written observations during the administrative procedure . Furthermore, the administrative nature of the procedure before the Commission exempts it from the obligation to give an undertaking the opportunity to hear a particular witness and to analyze its declarations at the investigation stage . In particular, it may be interesting to be heard where the facts or legal questions are complex. In practice, the Commission tends to recognize such an interest each time it intends to prohibit an agreement or a practice pursuant to Articles 101 and 102 TFEU. However, a company must be heard when the Commission, without adopting a supplementary statement of objections, substantially modifies the content of the initial statement  or when it abandons an objection during the course of the procedure, if the modification of the scope of the alleged infringement renders ineffective the company's economic analyzes based on data relating to the markets initially envisaged and not only on the one finally retained . An entity that has been recognized as an interested third party at one stage of the proceedings may subsequently lose this status, depending on its behavior, in particular if, when invited to hearings, it merely submits written observations or fails to appear. Such an entity cannot, in such circumstances complain that it has not been summoned to a subsequent hearing .

Where the Commission breaches the right to be heard and the undertaking can show that it would have been better able to defend itself had that breach not occurred, the decision must be annulled .

A new hearing is not required when the Commission investigates a file the procedural measures of which have not been affected by the annulment of a previous decision . It is then possible to resume the procedure aimed at replacing the annulled measure at the very point at which the illegality was found. Therefore, when the procedural defect occurred at the stage of adoption of the decision, the previous preparatory measures remain valid . On the other hand, where the prior decision is annulled for lack of authentication, a new hearing of the undertakings is necessary where the annulled decision has been made without those undertakings accessing the whole file and properly exercising their rights . This is also the case where, after the entry into force of Regulation No 1/2003, the Commission adopts a new decision after the annulment of a previous decision adopted on the basis of the ECSC Treaty; it is then required to arrange new hearings in the presence of the competition authorities of the Member States . However, in such a case, it is not obliged to ensure that the representatives of the competition authorities of the Member States have the information most similar to that which they could have obtained if they had participated in the hearing held during the first procedure, by inviting the same participants, but must only ensure that they give their opinion in full knowledge of the facts .

Case T-181/22 Pharol, SGPS SA, Judgment of 2 October 2024, LawLex202400007275JBJ.

For an illustration, see Case T-655/19 Ferriera Valsabbia SpA, 9 November 2022, LawLex202400005916JBJ and Case T-656/19 Alfa Acciai SpA, not available in English, emphasizing that a company informed by the Commission of the resumption of proceedings, which submits written observations without requesting to be heard, cannot, a posteriori, claim a violation of its rights of defense for not having been invited to a hearing.

Case T-235/18 Qualcomm Inc., 15 June 2022, LawLex202200003129JBJ.

Case C-29/23 P Ferriera Valsabbia SpA, Judgment of 4 October 2024, not available in English and Case C-31/23 P Ferriere Nord SpA, LawLex202500006699JBJ.

Case T-189/10 GEA Group AG, Judgment of 15 July 2015, LawLex202000002131JBJ. 

Case C-247/99 P Limburgse Vinyl Maatschappij and others v Commission [2002] ECR I-8375, LawLex200500004845JBJ.

Case C-110/10 P Solvay v Commission, LawLex201200000090JBJ.

Case C-85/15 P Feralpi Holding SpA, Judgment of 21 September 2017, LawLex201700001484JBJ; Case C-86/15 P and C-87/15 P Ferriera Valsabbia SpA, Judgment of 21 September 2017, LawLex201700001481JBJ; Case C-88/15 P Ferriere Nord SpA, Judgment of 21 September 2017, LawLex201700001483JBJ; Case C-89/15 P Riva Fire SpA, Judgment of 21 September 2017, LawLex201700001482JBJ. 

Case C-29/23 P Ferriera Valsabbia SpA, Judgment of 4 October 2024, not available in English.

Regulation No 773-2004, Art. 13. - Where the third party does not demonstrate a sufficient interest, the Commission must inform it of the reasons in writing and allow it a period in which to submit any observations. For an application, see Case T-655/19 Ferriera Valsabbia SpA, 9 November 2022, LawLex202400005916JBJ and Alfa Acciai SpA, Case T-656/19, not available in English, emphasizing that a third party who has been recognized as an interested third party does not necessarily retain this status when the proceedings are subsequently annulled and resumed, in particular when he has played a very passive role during the hearings held in the first proceedings.

Case C-31/23 P Ferriere Nord SpA, Judgment of 4 October 2024, LawLex202500006699JBJ.

Case 43/82 VBVB and VBBB v Commission EEC [1984] ECR 19, LawLex200400003590JBJ.

Case T-86/95 Compagnie générale maritime and others v Commission [2002] ECR II-1011, LawLex200400003557JBJ.

Case T-9/99 HFB and others v Commission [2002] ECR II-1487, LawLex200500004931JBJ; Case T-54/03 Lafarge v Commission [2008] ECR II-120; Case T-439/07 Coats Holdings Ltd, Judgment of 27 June 2012, LawLex201200001500JBJ; Case T-582/15 Silver Plastics GmbH & Co. KG, Judgment of 11 July 2019, not available in English.

Case T-604/18 Google LLC, Judgment of 14 September 2022, LawLex202200006913JBJ.

Opening of hearings

Article 14 of Regulation No 773/2004 and Articles 10 et seq. of Commission Decision No 2011/695 on the function and terms of reference of the hearing officer in certain competition proceedings set out the conduct of hearings. The Commission, through the hearing officer, invites the persons to be heard on a date determined by it. Officials and civil servants of other authorities of the Member States may also be invited to take part in the hearings. The notice given to attend can be short but must be sufficient to allow the persons or undertakings invited to submit an efficient defense. Thus, the Commission violates the right to be heard when, purporting to adopt a decision amending the amount of the fines imposed on certain undertakings, it gives them only four days to make their views known, whereas they have demonstrated that if they had had more time, they would have been better able to defend themselves . To improve the effectiveness of hearings, the hearing officer may supply to the parties invited to the hearing a list of questions and organize preparatory meetings.

Hearings are not public . The fact that none of the members of the College of the Commission attended the hearing of an undertaking does not affect its rights of defense: a competition procedure is an administrative and not a judicial matter and therefore nothing prevents the members of the Commission from being informed of the outcome of the hearing by such persons as the Commission had appointed to conduct it . Persons invited to attend shall either appear in person or be represented by their legal representatives, by representatives authorized by their statutes or by a duly authorized agent. They may be assisted by lawyers, law professors admitted before the Court of Justice, or other qualified persons. They may be heard separately or in the presence of other persons invited to attend, “having regard to the legitimate interest of the undertakings in the protection of their business secrets and other confidential information”. However, although hearings in antitrust proceedings most often take this form in the Commission's practice, the regulations do not recognize a right to a collective hearing for companies to which a statement of objections has been addressed . Hearing participants may be allowed to ask questions during the hearing, but the Commission is not obliged, under the principle of adversarial proceedings or the rights of the defense, to answer them . Persons attending may be authorized to ask questions during the hearing. The statements made during the hearing are recorded and, upon request, the recording is made available to the persons present at the hearing, subject to the protection of business secrets or confidential information. Undertakings cannot demand more than one hearing to argue their case . Similarly, they do not have the right to respond last to accusations, which is a guarantee provided by criminal law in the strict sense, and which does not apply in all its rigor in the context of administrative competition proceedings, which are not part of the “hard core” of criminal law .

Case T-485/11 Akzo Nobel NV, Judgment of 15 July 2015, LawLex201500000945JBJ.

Case T-54/03 Lafarge v Commission [2008] ECR II-120: the mere fact that a hearing is in camera does not in itself constitute a violation of the rights of defense of the undertaking that did not attend; Case T-384/09 SKW Stahl-Metallurife Holding AG, Judgment of 23 January 2014, not available in English: the hearing officer may refuse to hold the hearing in camera where the undertaking making the request intends to bring arguments accusing another party which could then claim that its rights of defense have been violated.

Case T-372-10 Bolloré, 27 June 2012, LawLex201400000107JBJ, pointing out that the fact that a company was not heard personally by the members of the Commission during its hearing does not constitute a defect in the contested decision, since in the context of an administrative procedure, there is nothing to prevent them from being informed of the results of the hearing by the persons mandated to carry it out.

Case T-655/19 Ferriera Valsabbia SpA, Judgment of 9 November 2022, LawLex202400005916JBJ and Case T-656/19 Alfa Acciai SpA, not available in English.

Case T-113/17 Crédit agricole SA, Judgment of 20 December 2023, not available in English, cited above.

Case T-384/09 SKW Stahl-Metallurife Holding AG, cited above.

European Competition Law

242. Conduct of hearings

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242. Conduct of hearings

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Les décisions de justice citées dans ce paragraphe :

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Les notions juridiques connexes

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