Tag Archives: HE

Herfindahl-Hirschmann Index

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Herfindahl-Hirschmann Index

Herfindahl-Hirschmann Index (HHI) in the European Union Law

Concept of Herfindahl-Hirschmann Index (HHI) provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Specific measurement of market concentration, that is, of the extent to which a small number of firms account for a large proportion of output. The HHI is used as one possible indicator of market power or competition among firms. It measures market concentration by adding the squares of the market shares of all firms in the industry. Where, for example, in a market five companies each have a market share of 20 %, the HHI is 400 + 400 + 400 + 400 + 400 = 2 000. The higher the HHI for a specific market, the more output is concentrated within a small number of firms. In general terms, with an HHI below 1 000, the market concentration can be characterised as low, between 1 000 and 1 800 as moderate and above 1 800 as high.

Hearing

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Hearing

Hearing in the European Union Law

Concept of Hearing provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Opportunity for parties, to whom the Commission has addressed objections for violation of EU competition law, to make their views known. In order to respect the parties' right to be heard, the Commission must in its final decisions only deal with objections on which the parties were afforded the possibility to present their position. This is normally done in writing and — upon the parties' request — orally in a meeting with the Commission services where representatives of Member States are also present. The oral hearing is conducted by the () hearing officer. Likewise, where the Commission rejects a complaint, or, conversely, raises objections relating to an issue in respect of which it received a complaint, it must give the complainant the opportunity to make his views known. Moreover complainants, and third parties showing a sufficient interest, have a right to be heard in writing and may also be given the opportunity to develop their views at the oral hearing.

Hearing officer

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Hearing Officer

Information to be provided to the Hearing Officer

When the SO is issued, the case team needs to provide the Hearing Officer secretariat with the following information: – the names and positions of the persons representing the companies concerned and/or their legal advisers (with their powers of attorney) and their complete addresses, fax numbers and e-mail addresses; – languages of the procedure, participation or not by ESA and estimated number of participants (for booking meeting room); – electronic versions of the SO in the available languages and replies, as soon as available (the Hearing Officer secretariat will transmit to the interpreters) ; – a copy of the DVD sent to the parties for access to file, as well as any access to corporate statements at DG Competition's premises at their request.

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The case-team should double-check carefully the material prepared for the hearing in order to avoid any inadvertent disclosure of information covered by professional secrecy (note that the confidential version of all documents should however be made accessible to the Hearing Officer).

Resources

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References

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

Further Reading

  • Information about Hearing Officer in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Hearing officer in the European Union Law

Concept of Hearing officer provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): An independent senior official who is charged with organising hearings and with ensuring that they are properly conducted. The hearing officer thus contributes to the objectivity of the hearing itself, the observance of due process, the respect of the parties' rights of defence and the objectivity of any decision taken subsequently. The tasks of the hearing officer also include resolving disputes between the Commission services and the parties concerned about the confi-dentiality of documents and access to the file which one or more of the parties claim in order to prepare their defence. The hearing officer reports to the Commissioner with special responsibility for competi-tion; his final report on a competition case is attached to the decision and published in the Official Journal. The terms of reference of the hearing officer are laid down in a Commission decision.

(See: Commission decision of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings (OJ L 162, 19.6.2001, p. 21); as regards the respect of fundamental rights, especially the right to be heard and the right of access to the file, in the context of the Commission's enforcement action in competition matters, see also Articles 41 and 48 of the Charter of Fundamental Rights of the European Union (OJ C 80, 10.3.2001, p. 1).)

Hearing Officer Final Report

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Hearing Officer Final report

Hearing Officer

Final Report of the Hearing Officer

The final report is published in the form the Hearing Officer has established it.

Resources

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References

  • Information about Hearing Officer Final Report in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Hearing Officer Final Report in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Hearing Officer's powers to make recommendations

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Hearing Officer's powers to make recommendations

Hearing Officer's powers to make recommendations

The Hearing Officers can make recommendations in relation to two issues.

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First, under Article 4(2)(a) of the Terms of Reference, the Hearing Officer can be asked to review claims concerning the legally privileged nature of documents withheld from DG Competition by an undertaking. The undertaking must consent that the Hearing Officer reviews the relevant document. After having discussed his or her preliminary assessment with the undertaking and DG Competition, the Hearing Officer may make a recommendation to the Competition Commissioner.

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Second, under Article 4(2)(b), the Hearing Officer can be asked by an undertaking to make a recommendation on whether an addressee of a simple request for information pursuant to Article 18(2) may refuse to reply to a question by invoking the privilege against self-incrimination. The Hearing Officer may formulate a recommendation in appropriate cases, having regard to the need to avoid undue delay in the proceedings, and communicate his or her conclusions to DG Competition to be taken into account in case of any subsequent Article 18(3) decision.

Resources

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References

  • Information about Hearing Officer's powers to make recommendations in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Hearing Officer's powers to make recommendations in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Hearing Preparatory steps

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Hearing Preparatory steps

Oral Hearing Preparatory steps

Invitations are sent by the Hearing Officer.

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Article 11 of the HO Terms of Reference provides that the Hearing Officer shall take all appropriate measures to ensure the proper preparation of the hearing.

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In this respect, the Hearing Officer may, after consulting the Director responsible, supply in advance to the parties invited to the hearing a list of the questions on which s/he wishes them to make known their views. The Hearing Officer may also indicate to the persons invited to the hearing the focal areas for debate, having regard in particular to the facts and issues that the addressees of an SO want to raise.

Other Considerations

In addition, after consulting the Director responsible, the Hearing Officer may hold a meeting with the parties invited to the hearing and, where appropriate, the Commission staff, in order to prepare for the hearing itself.

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The Hearing Officer may also ask for prior written notification of the essential contents of the intended statement of persons, whom the parties invited to the hearing have indicated will speak.

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The Hearing Officer may set a time limit for all persons invited to the hearing to provide a list of participants who will attend the hearing. The list should be made available by the Hearing Officer in due time before the hearing.

Resources

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References

  • Information about Hearing Preparatory steps in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Hearing Preparatory steps in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Hearing Recording

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Hearing Recording

Recording of the hearing

Article 14(8) of Reg. 773/2004 provides that the statements of each party heard must be recorded and upon request the recording has to be made available to those who attended the oral hearing by the Hearing Officer. This is done by way of audio recording (no written minutes are prepared).

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After the hearing, the Hearing Officer sends a copy of the audio recording to the Antitrust Registry, who encodes it in the case management application. Parties who attended the hearing and have requested the audio recording may collect it at the Hearing Office. Parties who did not attend the hearing do not have a right to obtain a copy of the recording

Resources

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References

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

Further Reading

  • Information about Hearing Recording in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Hearing Final report

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Hearing Final report

Hearing Officer's Final report

The following information is required by the Hearing Officer for drafting the final report: (a) copies of all versions of the draft decision should be sent to the HO during inter-service consultations; – information on whether the draft decision includes any material deviation in the objections (e.g., new or modified objection) or in the evidence used as compared to the SO (e.g. new incriminating evidence introduced).

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The final report considers (Article 16(1) of the HO Terms of Reference): (a) whether participants in antitrust proceedings have been able to effectively exercise their procedural rights; (b) whether the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views.

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The final report is drafted in EN, FR, DE and all the authentic languages of the case and submitted to the competent member of the Commission, the Director General for Competition and the Director responsible, and is communicated to the competent authorities of the Member States and, in accordance with the provisions on cooperation laid down in Protocol 23 of the EEA Agreement, to the EFTA Surveillance Authority (Article 16(2) of the HO Terms of Reference).

Other Considerations

It is notified to the parties and published together with the final decision.

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Timing: (a) Member States must have the draft final report when discussing the draft decision at the Advisory Committee (AC). – The draft final report is sent by the Hearing Officer to the DG, the Cabinet and the NCAs before the AC Meeting. – According to Article 17 of the HO's Terms of Reference, the final report has to be attached to the draft decision submitted to the College, in order to ensure that, when it reaches a decision on an individual case, the College is fully apprised of all relevant information as to the course of the procedure and that the effective exercise of procedural rights has been respected throughout the proceedings. – After the AC Meeting, the HO's secretariat personally delivers the original final report (in all necessary linguistic versions) to the SG and a copy to the case team for the file.

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The report may be modified by the Hearing Officer in the light of any amendments to the draft decision up to the time the Commission adopts the decision.

Resources

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References

  • Information about Hearing Final report in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Hearing Final report in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Hearing Interim report

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Hearing Interim report

Hearing Officer's Interim report and observations

The Hearing Officer's reports to the Commissioner on the hearing and the conclusions he/she draws from it in his/her interim report with regard to the respect for the effective exercise of procedural rights, including disclosure of documents, access to the file, time-limits and the proper conduct of the oral hearing (Article 14(1) of the HO Terms of Reference).

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In addition to, and separately from, the interim report, the Hearing Officer may also make observations on the further progress and impartiality of the proceedings (Article 14(2) of the HO Terms of Reference). Such observations may concern, among other things: (a) whether due account is taken of all the relevant facts; (b) the need for further information; – the withdrawal of certain objections; – the formulation of further objections; or – suggestions for further investigative measures pursuant to Chapter V of Reg. 1/2003 (e.g., request for information, interview of natural or legal persons).

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The Hearing Officer sends his draft interim report and observations to the case team for information and comments on the facts before sending it to the Competition Commissioner, after having seen the case team's report on the hearing.

Resources

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References

  • Information about Hearing Interim report in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Hearing Interim report in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)