COMPETITION • EUROPEAN LAW • PROCEDURE
The Hearing Officer is accountable to the Commissioner responsible for competition policy and is therefore not under the authority of the Competition Directorate (DG COMP). The Hearing Officer’s role covers the entire competition procedure.During the investigation phase, the parties may request his or her intervention in order to : (i) ensure the confidentiality of correspondence between the lawyer and his client, by verifying whether a document seized by the Commission is covered by legal professional privilege; (ii) guarantee that an undertaking will not be led to incriminate itself in the context of a request for information based on Article 18(2) of Regulation No 1/2003 ; (iii) decide on the need for an extension of the deadlines for responding to a request for information based on Article 18(3) of Regulation No 1/2003; (iv) keep undertakings informed of their status in the procedure, whether they are subject to an investigation procedure and, if so, the purpose and aim of the measure.
Parties to the proceedings who offer commitments or who take part in settlement discussions may also call upon the Hearing Officer at any time during the proceedings in order to ensure the effective exercise of their procedural rights.
In the written procedure, and in particular in the case of access to the file, he/she intervenes in a subsidiary manner: only if the parties are not satisfied with the Commission’s response to their complaints concerning their right of access may they turn to the Hearing Officer.
The Hearing Officer is also responsible for conducting hearings in complete independence, organizing and chairing the hearings, regardless of the competition procedure undertaken and for ensuring that both the hearing and the subsequent decision are objective.
The Hearing Officer’s final report on the decision before it is issued is made available to the Member States and the parties and published together with the Commission’s final decision. The Hearing Officer will only communicate to the Commissioners those objections which he considers relevant and not all objections raised during the administrative procedure. Any incompleteness or error in the Hearing Officer’s report cannot constitute a defect in the administrative procedure that could vitiate the final decision, insofar as the report, which is a purely internal Commission document that is not intended to supplement or correct the undertakings’ arguments, does not present any decisional aspect that the European Court of Justice would have to take into account in exercising its review. The same is true of the comments made at the hearing.
Finally, where the Commission intends to publish information that the undertaking considers to be covered by business secrecy, the undertaking may refer the matter to the Hearing Officer in accordance with Decision No 2011-695 of 13 October 2011. However, that decision does not allow the intervention of the Hearing Officer when DG COMP has already granted a request for confidentiality.
