1. Access to File – An Effective Right of Defence? Martin Bechtold 27 June 2005

2. Access to File · 27 June 2005 1 Introduction Access to file – two complementary aspects: Access to file safeguards the right to be heard –ECJ: The Commission cannot base a decision on information to which the parties did not have access (Ahlborg Cement, Solvay – Soda Ash). Access to file contributes to the efficiency of the procedure –Timely resolution of isolated issues –Efficiency of proceedings –Avoidance of litigation

3. Access to File · 27 June 2005 2 Overview Timing of access Scope of access Role of the Hearing Officer

4. Access to File · 27 June 2005 3 I. Timing of Access When is access granted: in Mergers in Article 81/82 proceedings?

5. Access to File · 27 June 2005 4 I. Timing of Access: Mergers ECMR (Art. 18): Parties shall be heard at every stage of the procedure. Access to file shall be open at least to the parties involved. Implementing Reg. EC 802/2004 (Art. 17): Access after the SO Best Practices Guidelines: Generally: After the SO Limited access before SO: “Key documents” if 6(1)(c) decision to enter Phase II

6. Access to File · 27 June 2005 5 I. Timing of Access: Mergers Query whether access should be granted earlier: To consider commitments in Phase I To consider challenging an Article 6(1)(c) decision

7. Access to File · 27 June 2005 6 I. Timing of Access: Article 81/82 Regulation 1/2003 (Art. 27): The parties shall be entitled to have access. Implementing Reg. EC 773/2003 (Art. 15): Access shall be granted after the SO.

8. Access to File · 27 June 2005 7 I. Timing of Access: Article 81/82 Query whether access could not be granted earlier: Long investigation period Greater amount of information on the Commission’s file More fact-finding (dawn raids, more Art. 18 requests) Potential examples: Access to “key documents” before SO Before Article 9 commitments Informal closing of file by Commission

9. Access to File · 27 June 2005 8 II. Scope of Access Quality of Access Timing Constraints Practical Constraints Confidentiality conflicts Classification standard Potential conflict resolutions

10. Access to File · 27 June 2005 9 II. Scope of Access: Quality Timing constraints: Access to file and response to SO coincide Average response time to SO: –Mergers: 2 weeks –Article 81/82: 4-8 weeks Practical constraints: Time loss due to: –Missing/Unclear table of documents –Misclassification of documents –Incomplete files

11. Access to File · 27 June 2005 10 II. Scope of Access: Conflicts Classification standard Duties of the Parties: –Substantiated Claim (Draft Access Notice, para. 21) –Clear identification (Draft Access Notice, para. 34) Duties of the Commission: –Provisional acceptance (Draft Access Notice, para. 39) –Possible reversal at later stage –CFI Lombard Club: Duty to assess documents in a concrete and individual manner –ECJ Cimenteries CBR: In case of economic analysis, right of defence infringed if access denied for documents, which could provide plausible alternative explanations.

12. Access to File · 27 June 2005 11 II. Scope of Access: Conflicts Potential Conflict Resolutions: Preferable solutions: –Deletion of Identity –Data exchange with representatives of parties based on confidentiality agreements, e.g. access for economists to: –Economic models including underlying assumptions and raw data material Less ideal solutions: –Range figures (e.g. for bid data analysis) –Summaries

13. Access to File · 27 June 2005 12 III. Role of the Hearing Officer Role of the Hearing Officer Mandate “Soft factors”

14. Access to File · 27 June 2005 13 III. Role of the Hearing Officer: Mandate Sufficient mandate for the Hearing Officer? Lack of procedural rules (e.g. strict deadlines) Legal nature and weight of decision within overall proceedings

15. Access to File · 27 June 2005 14 III. Role of the Hearing Officer: “Soft Factors” Position of the Hearing Officer: Not referred to in DG COMP’s organisational diagram Sufficient staffing? Comparison with Chief Economist

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