Written Reply to the Statement of Objections

Complainants may make known their views in writing

Pursuant to Article 6(1) of Reg. 773/2004, “Where the Commission issues a statement of objections relating to a matter in respect of which it has received a complaint, it shall provide the complainant with a copy of the non-confidential version of the statement of objections and set a time-limit within which the complainant may make known its views in writing”.

More about Written Reply to the Statement of Objections

There are two conditions for a person to qualify as a complainant in antitrust proceedings. First, such person must file a formal complaint pursuant to Article 5(1) of Regulation No 773/2004. Second, the person must have a legitimate interest. 1

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The Österreichische Postsparkasse judgment 2 clarified the requirements that a person needs to meet in order to qualify as a “complainant” in antitrust proceedings. First, the General Court confirmed that applicants qualify as complainants if they justify their “legitimate interest” by demonstrating that the alleged infringement might harm their economic interests. The Commission is obliged to establish whether persons claiming to be complainants might indeed be harmed in their economic interests. 3 By contrast, it is not for the Commission to examine whether the person pursues motives other than the termination of the infringement. 4 In the case at hand the banks' claim that the complainant pursued political interests rather than its interests as a consumer was therefore deemed to be irrelevant. Second, the fact that the Commission has already initiated the antitrust investigation the complaint refers to, either on its own (“ex officio”) or due to another complaint, is not a bar to the applicant's qualification as a complainant. 5 Irrespective of whether the complainants submit substantial new evidence, they can always “jump on the bandwagon” of a pending Commission investigation, even at a late stage. In this context the General Court has also confirmed that complainants may ask for a non-confidential version of the SO even after an oral hearing has taken place and up until the very moment the Advisory Committee convenes to decide on the draft decision imposing fines 6 7 . The applicants' counterargument that the provision of an SO to a complainant after the hearing was purposeless did not convince the General Court, which pointed to a lacuna in the secondary legislation with regard to the point in time after which a complaint becomes inadmissible.

Other Considerations

Any person claiming the status of “complainant” but not satisfying the above conditions may only be heard if they have a sufficient interest in the outcome of the proceedings, i.e., if they have been granted the status of “interested third party” by the Hearing Officer (see Section 2.1.3 below).

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Except in cartel settlement cases, the Commission must make available to complainants a nonconfidential version of the SO. The “non-confidential version of the SO” must not contain business secrets and “other confidential information”. This implies that, for instance, references to leniency statements and other admissions may be deleted. The complainant may raise issues about the extent of the deletions in the non-confidential version of the SO sent to it, and may refer the matter for decision to the Hearing Officer (HO) in case of disagreement with the case team (pursuant to Article 7(2)(c) of the HO Terms of Reference 8 ).

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The Hearing Officer may, where appropriate and after consulting the Director responsible, decide to afford complainants the opportunity to express their views at the oral hearing 9 .

Resources

See Also

References

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

Notes

[Note 1] See the Module on Handling of Complaints.
[Note 2] Joined Cases T-213 and T-214/01 Österreichische Postsparkassee.a. [2006] ECR II-1601.
[Note 3] Joined Cases T-213 and 214/01, Österreichische Postsparkasse e.a. [2006] ECR II-1601, para.124-129.
[Note 4] Ibid., para. 118.
[Note 5] Ibid., para. 92.
[Note 6] Point 149 : “Therefore, as long as the Advisory Committee on Restrictive Practices and Dominant Positions has not delivered the opinion provided for in Article 10(6) of Regulation No 17 on the preliminary draft decision transmitted by the Commission, the applicant or complainant's right to receive the objections and to be heard cannot be regarded as time-barred. Until the advisory committee has delivered its opinion, there is nothing to prevent the Commission examining the comments made by third parties and then modifying its position in the light of those comments”.
[Note 7] Ibid., at 148 and 149.
[Note 8] Decision of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29).
[Note 9] Article 6(2) of the HO Terms of Reference. The HO Terms of Reference provide that certain decisions are taken by the HO after consultation of the Director responsible for the case. In practice, the HO team will also seek the views of the case team directly, copying the Director.

Further Reading

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