1. Who can turn to the Hearing Officer?
Natural or legal persons that are involved in a merger or antitrust proceeding (i.e. addressees of a statement of objections complainants, interested third persons, other involved parties in merger proceedings) can turn to the Hearing Officer. These parties may refer to the Hearing Officer for independent review any issues regarding the effective exercise of their procedures rights which have not been resolved in prior contacts with DG Competition. Third parties can submit directly to the Hearing Officer their request to be heard as interested third persons in the proceeding.
The Hearing Officer is not in charge of receiving complaints or information concerning suspected infringement of competition law. If you are a citizen or an undertaking and you wish to inform the Commission about suspected anticompetitive practices, or if you wish to lodge a formal complaint, please submit your correspondence to DG Competition following the instructions at http://ec.europa.eu/competition/contacts/antitrust_mail.html.
2. How can I contact the Hearing Officer?
Click here for the Hearing Officers’ contact details. Formal requests to the Hearing Officers should be submitted by facsimile, email or letter.
3. What is the relationship between the Hearing Officer and DG Competition?
The Hearing Officers are not members of DG Competition. For administrative purposes, they are attached to the Competition Commissioner. In the exercise of their functions, they act independently. DG Competition informs the Hearing Officers about the development of the procedure in competition investigations up to the stage of the draft decision submitted to the Commissioner.
The Hearing Officers act as independent arbiters between the Commission services responsible for the individual investigations and the companies concerned.
4. How does the Hearing Officer ensure a fair process?
Ensuring a fair process forms part of DG Competition's responsibility in the first place. Nevertheless, the Hearing Officer seeks to ensure that in the preparation of Commission decisions due account is taken of all the relevant facts, whether favourable or unfavourable to the parties concerned. Furthermore, the Hearing Officer can intervene, upon request, if questions arise about procedural matters that fall under their Terms of Reference, such as deadlines to reply to a statement of objections, access to file, protection of legitimate confidential information, legal professional privilege and admission of interested third persons.
5. I want to be recognised as an interested third person in a competition proceeding. What do I have to do?
You must send a written application to the Hearing Officers. This should include a reasoned statement explaining your interest in the outcome of the procedure. After consulting with the DG Competition director responsible for the proceeding, the Hearing Officer will decide whether or not you have demonstrated a sufficient interest to be heard as an interested third person. Once you are recognised as an interested third person, you will be informed of the nature and subject matter of the proceedings by the team in DG Competition handling your case, and you will be afforded a time limit within which to express your views. If the Hearing Officer finds that you have not shown in your application a sufficient interest to be heard, you will be informed in writing of the reasons for that finding. A time limit will be fixed within which you may submit any further written comments.
6. How do I request an oral hearing?
If you are an addressee of a statement of objections or other involved party in a merger proceeding as defined under Article 11(2) of Regulation (EC) No 802/2004, you have the right to be heard orally. The request for an oral hearing should be included in your written response to the statement of objections. In addition, it is advisable that you send a request for an oral hearing to the Hearing Officer. A formal invitation will be sent by the Hearing Officer, informing you of the date, time and location of the hearing, and requesting you to provide certain details within a specified period of time. In particular, you should indicate whether or not you would like to make parts of your presentation in the absence of the other parties.
If you are a complainant or an interested third person, you may, if appropriate, be given the opportunity to attend the oral hearing. However, you do not have an individual specific right to request or attend an oral hearing. In case you are admitted to the oral hearing, you are expected to make a contribution.
7. How do I go about being admitted to an oral hearing?
If you are the addressee of a statement of objections or other involved party in a merger proceedings, you will be invited if you have requested an oral hearing in your written reply to the statement of objections. If you are not an addressee, you have to be either a complainant or be recognised by the Hearing Officer as an interested third person. Complainants and interested third persons that express an interest in taking part in the oral hearing may, where appropriate, be invited. However, they will not be admitted as observers; they are required to participate actively in the hearing.
8. How do I ask the Hearing Officer for access to the file?
If you are the addressee of a statement of objections, you can request access to the Commission's file once you have received the statement of objections. Your request should be directed to the DG Competition team that is handling your case. In case of a dispute between DG Competition and your company about whether or not the confidentiality of information prevents its disclosure, the Hearing Officer can be called upon to decide on the issue. The Hearing Officer may be required to strike a balance between the information providers' legitimate interest in confidentiality and the parties' rights of access to the file.
9. How is the protection of my confidential information ensured?
It is the Commission’s task to protect your confidential information. The Commission does its utmost to ensure that sensitive documents in its possession are not divulged without prior consent of the information provider.
To that effect, it is essential that any business secrets and other confidential information submitted to the Commission are clearly marked as such. You are required to provide a non-confidential version for disclosure to other parties, as and when appropriate, in accordance with their rights of defence in Commission proceedings.
In some instances, the Commission service may consider it necessary to reveal information for which you claim confidentiality. In this event, the procedure set out in Article 8 of the Terms of Reference applies to safeguard the legitimate interests in confidentiality. Accordingly, you will first be informed and given the reasons for disclosure. You can then submit objections within a fixed time limit to the Hearing Officer responsible for the case. Only if the Hearing Officer considers that the information does not constitute a business secret or other confidential information or that there is an overriding interest in its disclosure will the information be divulged. In this case, you will be informed by way of a reasoned decision, giving the date (at least one week from the notification of the decision) when the information will be disclosed. You then have the opportunity to request interim relief before the General Court.
10. How can I obtain an extension of the time limit to reply to/comment on a statement of objections or reply to a decision requiring information pursuant to Article 18(3) of Regulation (EC) No 1/2003?
The relevant service dealing with the case in DG Competition sets the time limit for replying to a statement of objections and should be approached first for any requests for extensions of time. Such requests must be made in due time before the expiry of the original time limit and at least five working days before expiry in the context of merger cases. Where there is still disagreement regarding an extension request, either because it has been refused or the length of the extension is not deemed sufficient, the matter may be referred to the Hearing Officer for review, as long as the referral is made before the expiry of the original time limit. The Hearing officer deals also with requests for extensions of decisions requiring information pursuant to Article 18(3) of Regulation (EC) No 1/2003. In both cases though, requests that are submitted to the Hearing Officer should be sufficiently reasoned. The Hearing Officer ensures that parties have adequate time to give their views, while at the same time taking due account of the efficiency of the procedure. You should send your formal request for an extension of the deadline, in due time before the expiry of the original time limit set, to the Hearing Officer by facsimile, email or letter.
11. Can I contact the Hearing Officer during an inspection carried out by the Commission?
The Hearing Officer does not have any powers to intervene in the course of an ongoing inspection. As regards matters of legal professional privilege, the Hearing Officer can intervene if a document has been withheld from the Commission on the basis that it is covered by legal professional privilege (for instance by being handed over to the Commission in a sealed envelope). In such a case, the undertaking or association of undertakings making the claim may ask the Hearing Officer to examine its legal professional privilege claim pursuant to Article 4(2)(a) of the Terms of Reference.
Further, and more generally, if you consider that you have not been able to exercise your procedural rights effectively during an inspection at your premises, you may, after having raised the issue with DG Competition, and if the issue is not thus resolved, contact the Hearing Officer detailing your concerns. The Hearing Officer may, at any point, make observations to the Competition Commissioner as regards the conduct of the proceedings, and shall, in any event, address the respect for the effective exercise of procedural rights in his or her interim and final reports, as appropriate.