Powers in the investigative phase
The scope of the Terms of Reference of the Hearing Officer ("Terms of Reference") was expanded in 2011 to include procedural matters arising out of the investigative phase of antitrust and merger proceedings. More specifically, the Hearing Officer may intervene where a dispute arises between the parties and DG Competition in the following circumstances:
- claims of legal professional privilege over documents required by the Commission in the context of requests for information, investigations or investigatory measures (Article 4(2)(a) of the Terms of Reference);
- claims that replying to a question in a request for information would breach the privilege against self-incrimination (Article 4(2)(b));
- claims that time limits imposed by a Commission decision for replying to a request for information are too short (Article 4(2)(c)); and
- claims that an undertaking or association of undertakings has not been informed of its procedural status (Article 4(2)(d)).
Legal professional privilege
If a document is requested in the context of an inspection, investigatory measure or a request for information (pursuant to Articles 18, 20 or 21 of Regulation (EC) No 1/2003 or Articles 13 or 14 of Regulation (EC) 139/2004), an undertaking or association of undertakings may claim that such document is covered by legal professional privilege. If the Commission disagrees, and the document is withheld from the Commission, the undertaking or association can approach the Hearing Officer to examine its claim. In order to do so, the undertaking or association will have to allow the Hearing Officer to review the document in question, as well as any other related documents that the Hearing Officer considers necessary for his or her assessment. Without revealing the content of the document, the Hearing Officer will communicate his or her preliminary view to DG Competition and the parties and may take steps to promote a mutually acceptable solution. Where no resolution is reached, the Hearing Officer may formulate a reasoned recommendation to the Commissioner, which will also be transmitted to the parties making the claim.
The right to be informed of one's procedural status
Undertakings or associations of undertakings subject to an investigative measure by the Commission under Chapter V of Regulation (EC) No 1/2003 have the right to be informed of their procedural status, namely whether they are subject to an investigation and, if so, the subject matter and purpose of that investigation. If such an undertaking or association of undertakings considers that it has not been properly informed by DG Competition, it may refer the matter to the Hearing Officer. The Hearing Officer will then take a decision requiring DG Competition to inform the undertaking or association in question of its procedural status – the Hearing Officer's decision will also be sent to the referring party.
The privilege against self-incrimination
Where the addressee of a request for information pursuant to Article 18(2) of Regulation (EC) No 1/2003 refuses to reply to a question invoking the privilege against self-incrimination, it may refer the matter to the Hearing Officer. The Hearing Officer may then make a reasoned recommendation as to whether the request for information would force the addressee to give answers which might involve admission of an infringement and inform DG Competition of his or her conclusions, to be taken into account in case of any decision taken subsequently pursuant to Article 18(3) of Regulation (EC) No 1/2003. The addressee of the request will receive a copy of the reasoned recommendation.
Request for extension of time
Where the addressee of a decision requiring information 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. The request for an extension must be submitted in due time before the expiry of the original time limit set. The Hearing Officer will then decide whether an extension of the time limit should be granted, taking account of the length and complexity of the request for information and the requirements of the investigation.