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

The rights of defense must be fully ensured “at every stage of the procedure” (Regulation No 139/2004, Article 18(1)). Following a decision to initiate proceedings which opens phase II, the Commission must proceed to the Statement of Objections  and organize the hearing of the interested undertakings, namely the merging parties, in order for them to submit their observations.
1º) Statement of Obje …

Rights of the notifying parties

The rights of defense must be fully ensured “at every stage of the procedure” (Regulation No 139/2004, Article 18(1)). Following a decision to initiate proceedings which opens phase II, the Commission must proceed to the Statement of Objections  and organize the hearing of the interested undertakings, namely the merging parties, in order for them to submit their observations.

Where the Commission intends to take a decision on the substance of a case, it addresses its objections in writing to the notifying parties and informs other involved parties in writing (Regulation No 802/2004, Article 13). Observance of the rights of the defense requires that addressees of the  Statement of Objections should have access during the administrative  procedure to all the incriminating documents in their original versions. The Commission is not, however, required to translate documents cited in the Statement of Objections, or used in support of it, into the language of the case . It then sets a time-limit  within which they may inform the Commission of their comments in writing . The Statement of Objections is not solely intended to spell out the complaints to which the undertaking to which it is addressed has to answer but also to give it the chance to propose corrective measures . In all events, the Commission bases its decisions only on those objections for which the parties involved have been able to make known their views.

The Commission must give the persons and undertakings concerned the opportunity, at every stage of the procedure, of making know their views on the objections against them (Regulation No 139/2004, Article 18). Article 14 of Regulation No 802/2004 specifies the rules applicable to the hearing of the notifying parties. The notifying parties who have so requested in their written comments, may thus be heard by the Commission in a formal oral hearing, where the EU authority intends either to take a final decision, or to impose a fine. The right to be heard falls within the scope of the Commission's initiative at other stages of the procedure. Other involved parties may be heard under the same conditions. The Commission is not required to draw up minutes of hearings .

Formal oral hearings are conducted by the Hearing Officer. Persons invited by the Commission, on such date as it shall determine, either appear in person or are represented by legal representatives or representatives authorized by their company statutes. They may be assisted by lawyers. Formal oral hearings are not public. Each person may be heard separately or in the presence of other persons, having regard to the need to protect business secrets or other confidential information. The statements are recorded. Upon request, those recordings are made available to the persons heard (Regulation No 802/2004, Article 15).

Article 17 of Regulation No 802/2004 grants a right of access to the file to the parties to whom the Commission has addressed a Statement of Objections, for the purpose of enabling them to exercise their rights of defense . This right cannot be exercised before service of a Statement of Objections .

The principles governing the right of access to the file in competition proceedings apply in merger cases . The European court cannot rely on confidential documents provided by third parties and not discussed by the parties to contest the assessment of the Commission on the compatibility of the operation . Likewise, where the Commission fails to communicate to the notifying party the final version of the econometric model used to determine the likely effects of the merger on prices, whereas the differences between that document and the model used in adversarial debate during the administrative procedure are not negligable, the rights of defense of that party are infringed .  Valid reasons must however be given for a blanket refusal to allow access to the responses to a market investigation concerning the commitments offered by a party involved . On the other hand, access of the recipient of the Statement of Objections may be refused for documents or parts thereof containing other undertakings' business secrets, internal Commission documents, information enabling complainants to be identified where they wish to remain anonymous or information disclosed to the Commission subject to an obligation of confidentiality. Exceptions to the right of access to the file are however interpreted narrowly. Asked to rule on the issue of the extent of the public right of access to documents of the EU institutions governed by Regulation No 1049/2001, the Court of Justice held that the General Court infringes the second indent of Article 4(3) of Regulation No 1049/2001 where it does not require the Commission to indicate the specific reasons why its refusal of access to the whole of the report at issue is justified having regard to the risk of a serious undermining of its decision-making process, whereas that document concerns an administrative procedure that has already been closed. It also infringes the second indent of Article 4(2) by considering that the Commission has rightly refused access to the notes in reply from the legal service on the basis of the exception for protecting legal advice, without first carrying out an examination of the content of those notes .

Those procedural requirements must be combined with the requirement for speed which is characteristic of merger proceedings. In fact, if the Commission does not respond to notifications and requests for referral sent to it within the required time-period (Regulation No 139/2004, Article 6(1); Article 9(2)) the transaction is deemed to be compatible with the internal market.

The notifying parties may choose not to implement the proposed merger “in the form presented in the notification” by letter. That letter amounts to a formal withdrawal of the merger agreement on which the Commission can no longer exercise its control .

Where the Commission decides to adopt an authorization decision subject to obligations in accordance with Article 8(2) of Regulation No 139/2004, it is not obliged, in its statement of defense, to adopt a Statement of Objections, which is required only where it intends to block the merger, see Case T-61/21, EnergieVerbund Dresden GmbH, Judgment of 20 December 2023, not available in English.

Case T-380-17 HeidelbergCement AG, Schwenk Zement KG and Duna-Dráva Cement Kft, Judment of 5 October 2020, LawLex202000002237JBJ; Case T-61/21 EnergieVerbund Dresden GmbH, Judgment of 20 December 2023, not available in English: by sending the applicant the questionnaire for the first market survey in English, the Commission did not infringe either its right to a fair hearing or its rights of defense, since, if undertakings encounter translation problems, they can request an extension of the deadline for linguistic reasons and there is nothing to prevent them from giving their point of view in a pertinent manner, by replying in German to the questions put in English.

Case T-194/13 United Parcel Service, Inc., Judgment of 7 March 2017, LawLex201700000464JBJ, upheld in Case C-265/17 P Commission v United Parcel Service, Inc., Judgment of 16 January 2019, LawLex201900000049JBJ: holding that the infringement of the rights of the defense due to the failure to disclose the methodological choices, which are inherent to the economteric models used for the prospective analysis of the effects of a merger, must lead to the annulment of the contested decision, provided that it has been sufficiently demonstrated by the applicant not that, in the absence of that procedural irregularity, the decision would have been different in content, but that there was even a slight chance that it would have been better able to defend itself.

Case  T-5/02 Tetra Laval BV v Commission[2002] ECR II-4381, LawLex200500004269JBJ.

Case C-506/08 P My Travel Group [2011] ECR p. I-6237  LawLex201200000636JBJ.

Case T-310/00 MCI v Commission [2004] ECR II-3253, LawLex200500004276JBJ.

A twelve-day period is not disproportionate in comparison with the total period of four months of the Phase II procedure where the objections are not entirely unknown and unexpected before the dispatch of the document but are the continuation of an exchange of views with the Commission: Case T-210/01 General Electric v Commission [2005] ECR II-5575, LawLex200600000175JBJ.

They may set out all facts and matters known to them which are relevant to their defense, and attach any relevant documents as proof of the facts set out, and propose that the Commission hear persons who may corroborate those facts.

Case T-310/01 Schneider Electric v Commission [2002] ECR II-4071, LawLex200500004267JBJ.

Case T-221/95 Endemol v Commission [1999] ECR II-1299, LawLex200500004260JBJ.

See also Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, 43.

Case T-210/01 General Electric v Commission [2005] ECR II-5575, LawLex200600000175JBJ.

Case C-413/06 P Bertelsmann AG, Sony Corporation of America,and others, Judgment of 6 July 2008, LawLex200900001988JBJ.

European Competition Law

360. Rights of the notifying parties

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360. Rights of the notifying parties

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise