Access to Parties' replies

Access to Parties' replies to the Statement of Objections

The Notice on access to file specifically provides for that as a general rule no access will be granted to other parties' replies to the Statement of Objections 1 . The EU Courts have confirmed that there is no general right to access to other parties' defences in their replies to the Statement of Objections.

More about Access to Parties' replies

According to the Notice on Antitrust Best Practices (point 103): “Where required by the rights of defence (…), or where it may in the Commission's view help to further clarify factual and legal issues relevant for the case, the Commission may give parties a copy of the non-confidential version (or specific parts thereof) of other parties' written replies to the Statement of Objections. This would normally be done prior to the oral hearing, so as to allow parties to comment on them at the oral hearing. The Commission may also decide to do so in appropriate cases with respect to complainants and admitted third parties. If access to other parties' replies is granted because it is required for the rights of the defence parties are also entitled to have sufficient additional time to comment on these replies.”

More about the Subject

Point 27 (second paragraph) of the Notice on access to file states that “[a] party will, however, be granted access to documents received after notification of the objections at later stages of the administrative procedure, where such documents may constitute new evidence – whether of an incriminating or of an exculpatory nature -, pertaining to the allegations concerning that party in the Commission's statement of objections. This is particularly the case where the Commission intends to rely on new evidence.”

Other Considerations

It is apparent from the case law that in order to determine the exact scope of the Commission's obligation to grant access to the file a distinction must be drawn between documents forming inculpatory evidence and documents forming exculpatory evidence. According to settled-case law, with regard to inculpatory evidence, “the obligation to allow access to the file relates merely to the evidence ultimately relied on in the decision and not to all the complaints which the Commission may have expressed at any stage of the administrative procedure”. Moreover, “[a] document can be regarded as a document that incriminates an applicant only where it is used by the Commission to support a finding of an infringement in which that party is alleged to have participated” 2 . As the General Court pointed out in BPB “[…] if the Commission wishes to rely on a passage in a reply to a statement of objections or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 81(1) EC, the other undertakings involved in that proceeding must be placed in a position in which they can express their views on such evidence. In such circumstances the passage in question from a reply to the statement of objections or the document annexed thereto constitutes evidence against the various parties alleged to have participated in the infringement (…)” 3 .

As concerns exculpatory documents, access to documents after the notification of the objections can be granted upon a specific request of a party, where such documents may constitute new evidence and pertain to the allegations concerning that party, which are ultimately relevant for the Commission's final decision. The exculpatory nature of such documents should be such that the documents could be useful for the undertakings' defence 4 . In particular, the case law has referred to the situation where an undertaking, “had it been able to rely on them during the administrative procedure, […] would have been able to put forward evidence which did not agree with the findings made by the Commission at that stage and would therefore have been able to have some influence on the Commission's assessment in any decision it adopted, at least as regards the gravity and duration of the conduct of which it was accused and, accordingly, the level of the fine” 5 .

In order for the Commission to be able to properly consider a request for further access, the request must be sufficiently specified and express and be duly motivated. It is not sufficient to request access to categories of documents described in a general and abstract way. In addition, when access is requested after the notification of objections, normally such evidence shall not be readily available to the requesting party by other means.

The Commission is obliged to grant access to documents received after issuance of the Statement of Objections to companies against which such documents are to be used as inculpatory evidence in the final decision.

The Commission is always allowed to take into account arguments put forward by a party during the administrative procedure even without giving it further opportunity to be heard, provided that this does not alter the nature of the objections against that company. Where the company has had an opportunity to express its view on the position adopted by the Commission in the Statement of Objections, it can expect that its own explanations may lead the Commission to alter its opinion. 6

Resources

References

Information about Access to Parties' replies in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes

[Note 1] Point 27.
[Note 2] See Case T-53/03 BPB v Commission [2008] ECR II-1333, para. 32.
[Note 3] See Case T-53/03 BPB v Commission [2008] ECR II-1333, para. 41.
[Note 4] See Case C-110/10 P Solvay v Commission, para. 52.
[Note 5] Joined Cases C-204/00 P e.a. Aalborg Portland e.a. v Commission [2004] I-123, para.75.
[Note 6] Notice on access to file, para. 27; Case T-228/97, Irish Sugar, 7 October 1999

Access to Parties' replies

Access to Parties' replies