Supplementary Statement of Objections

New facts or evidence after the SO: Supplementary Statement of Objections

Due observance of the rights of defence requires that the undertakings and associations of undertakings concerned be afforded the opportunity to make known their views on the truth and relevance of the facts, objections and circumstances put forward by the Commission. 1 If, after the SO has been issued, new facts or evidence appear as a result of the addressees' replies, investigation measures taken separately or a new complaint, the undertakings in question have to be given an opportunity to give their explanations on these new aspects. If the undertakings have not had the opportunity to present their observations on such new aspects, they cannot be relied on in the final decision.

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If these new elements justify raising supplementary objections in substance, or they imply a modification in the intrinsic nature of the infringement with which an undertaking is charged, they have to be communicated to the undertakings concerned by a supplementary SO in due form 2 . A supplementary SO can also be issued to correct any omissions of the first SO 3 .

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The due form is not respected if the Commission simply dispatches a copy of an SO sent to another party and solely for the purposes of information, when the supplementary SO alters the intrinsic nature of the infringement with which an undertaking is charged and widens the scope of the objections presented against it. 4 Failure to do so constitutes violation of the rights of defence. This is particularly true where it cannot be excluded that the procedure might have had a different result if the Commission had properly notified a supplementary SO to the undertaking in question and if it had prescribed a period of time for that undertaking to submit its observations with respect to the new elements included in that SO. 5

Other Considerations

It is not necessary to repeat all the objections in the supplementary SO; it suffices to simply state what is new with regard to the previous SO and what has not been submitted to the undertaking previously.

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Before issuing a supplementary SO, a State of Play meeting will normally be offered to the parties. The rules on setting the time limit for the reply to an SO apply, although a shorter time limit will typically be set in this context 6 .

Resources

See Also

References

• Information about Supplementary Statement of Objections in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes

[Note 1] Case 85/76 Hoffman-La Roche v Commission [1979] ECR 461; Joined Cases T-10/92, T-11/92, T-12/92 and T-15/92 SA Cimenteries CBR and Others v Commission.
[Note 2] Case C-167/04 P, JCB Service, [2004] ECR II-49, paragraph 52. See also Best Practices Notice, paragraph 110.
[Note 3] Case C-167/04 P, JCB Service, [2004] ECR II-49, paragraphs 100-101.
[Note 4] Joint cases T-39/92 et T-40/92, Groupement des cartes bancaires 'CB' et Europay International, in particular paragraph 58.
[Note 5] Ibid, paragraphs 46 to 60, in particular paragraphs 46, 52, 55, 58 et 60, Rec. p. II-72.
[Note 6] See Best Practices Notice, paragraph 110.

Further Reading

• Information about Supplementary Statement of Objections in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

Access to file in case of Supplementary Statement of Objections (SSO) or Letter of facts

The procedural rights which are triggered by the sending of the initial Statement of Objections apply mutatis mutandis in case a Supplementary Statement of Objections is issued. Access to the evidence gathered after the initial Statement of Objections up to the date of the Supplementary Statement of Objections will also be provided. In case a letter of facts is issued, supplementary access will in general be granted to evidence gathered after the Statement of Objections up to the date of the said letter of facts. However, in cases where the Commission only intends to rely upon specific evidence that concerns one or a limited number of parties and/or isolated issues (in particular those regarding the determination of the amount of the fine or issues of parental liability), access will be provided only to the parties directly concerned and to the evidence upon which the Commission intends to rely.

Resources

See Also

References

• Information about Supplementary Statement of Objections in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

• Information about Supplementary Statement of Objections in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)