Oral statements

Oral statements

The legal basis for the Commission to take statement is Article 19 of Regulation 1/2003 (Power to take statements) 1 . The procedure for corporate statements is set out in Section IV of the 2006 Leniency Notice (see paragraphs 31-35), according to which the Commission may accept that corporate statements are made orally unless the applicant has already disclosed the content of the corporate statement to third parties. From the moment of the publication of the 2006 Leniency Notice, this procedure applies to all pending and new applications.

More about Oral statements

The copy of the recorded oral statement; any comments provided by the applicant on it (when checking its technical accuracy and making any potential corrections to it); and the Commission transcript of it will be used in the proceedings. In the following, the key elements in the oral corporate statement procedure are presented.

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Recording the statement and explaining the oral statements procedure to the applicant: Oral corporate statements will be recorded. The Commission officials receiving the application should at the start of the meeting set out the procedure that will be followed (see also the Module on the Power to take statements). As part of the opening statement by the Commission official, it is recommended to remind the applicant about the following Leniency Notice provisions that the applicant should have already become familiar with before making the application:

Other Considerations

1) the possibility to check technical accuracy of the recording within a given time limit; 2) the possibility to correct the substance of their oral statements within a given time limit; and 3) the obligation to check the accuracy of the transcript made of the recording within a given time limit.

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While the applicant can waive the first two rights (in which case the recording is deemed to have been approved), it has the obligation to check the accuracy of the transcript. It is recommended to remind the applicant that the non-compliance with the last requirement may lead to the loss of any beneficial treatment under the Leniency Notice. The applicant should be reminded of the above described rights and formalities only once, at the first meeting where an oral statement is given. 2 Declaration on obligations of the leniency applicant. The applicant should sign a declaration stating that it has been reminded of the obligations under point 32 of the 2006 Leniency Notice and that it is fully aware that corporate statements cannot contain any business secrets or other confidential information.

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Transcript of the statement: After the recording, a Commission transcript of the oral statement will be prepared.

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Checking accuracy of the recording: The undertaking making the oral statement has the opportunity, immediately or within a given time limit , to listen to a copy of the recording and to communicate to the Commission any comments regarding the accuracy of the recording (the technical accuracy of the recording). The undertaking may indicate to the Commission at any time before the expiry of the said time limit that it does not wish to make comments on the technical accuracy of the recording. At that point in time, the undertaking will be deemed to have approved the recording as accurate; alternatively, the recording will be deemed to be approved as accurate at the expiry of the said deadline.

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Any comments made by the applicant's representatives regarding the technical accuracy of the recording of the oral statement may be made in writing or orally, at the choice of the undertaking. Any comments made in oral form will again be recorded. The same procedure as in case of the initial statement described above will be used. The undertaking will be given the opportunity to check the technical accuracy of this recording.

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Checking correctness of the substance: The undertaking making the oral statement has the opportunity, immediately or within a given time limit to communicate to the Commission any corrections regarding the substance of the oral statement (correctness of the substance). The undertaking may indicate to the Commission at any time before the expiry of the said time limit that it does not wish to make any corrections on substance. At that point in time, the undertaking will be deemed to have approved the oral statement as correct on substance; alternatively, the oral statement will be deemed to be approved as correct on substance at the expiry of the said deadline. Any corrections regarding the substance of the oral statement may be made in writing or orally, at the choice of the undertaking. Any corrections made in oral form will again be recorded. The same procedure as in case of the initial statement described above will be used. The undertaking will be given the opportunity to check the technical accuracy of this recording.

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For the purposes of applying the Leniency Notice, the Commission will take corrections on substance into account as having been supplied on the day and at the time when they were submitted to the Commission. The absence of any corrections on substance is without prejudice to the possibility to provide complementary information or evidence, including in the form of corporate statements.

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Checking accuracy of the transcript: Following the explicit or implicit approval of the oral corporate statement or the submission of any corrections to it, the undertaking must check the accuracy of the transcript of the oral statement. For this purpose, the applicant must listen to the recording of the oral statement at the Commission's premises and check the accuracy of the transcript within a given time limit. The undertaking has to ensure that the transcript is an exact literal reproduction of what has been stated orally. In practice the applicant has to listen to the tape and confirm that the transcript is accurate. Checking by means of any lawyer's notes is not allowed because the transcript must correspond to the tape and not the lawyer's notes.

It is recommended that the case-team verifies the accuracy of the transcript. They should preferably do so after the recording has been transcribed. To certify that accuracy of the transcript has been checked by the applicant, the applicant or its representative should confirm in writing that the transcript is a true and accurate record of the oral statement. If the undertaking or its representative does not agree to sign, it is recommended that an internal note is prepared for the file.

If there is a factual mistake in the oral statement found during checking of the transcript, a new oral statement correcting the mistake is necessary, and consequently a new transcript will be prepared. The undertaking should normally only dictate the correction in a separate statement, not the whole document. References to oral statements in SOs and Decisions: When referring in an SO and in a Decision to the evidence provided in an oral statement, reference can be made to the page of the transcript (mentioning also the date of the statement). Interviews of applicant's employees and directors: Under the 2006 Leniency Notice, to qualify for any immunity or reduction of a fine, a leniency applicant has an obligation to make its current (and, if possible, former) employees and directors available for interviews with the Commission.

Resources

See Also

References

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

Notes

[Note 1] For further information on the Commission's powers under Article 19, see module on the power to take statements (ManProc Chapter IV.4).
[Note 2] Unless there are specific circumstances, such as a change in the legal representatives, in which case it is reasonable to inform on these rights and obligations once more.

Further Reading

• Information about Oral statements in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)