COMPETITION • EUROPEAN LAW • MERGERS
Pursuant to Article 6(1)(c) of Regulation No 139/2004, if the Commission finds that the notified concentration falls within its scope and raises serious doubts as to its compatibility with the internal market, it will initiate proceedings. The Commission then has 90 working days from the date of initiation of proceedings, increased to 105 working days where the undertakings concerned offer commitments, to carry out an in-depth examination of the transaction. The purpose of these commitments must be to prevent the creation or strengthening of a dominant position. In principle, they must be sent to the Commission within 65 working days of the date on which the proceedings were initiated.
After the decision to initiate proceedings which opens Phase II, the Commission must proceed with the Statement of Objections and organize a hearing of the undertakings concerned, i.e. the parties to the merger, so that they can put forward their observations. The Statement of Objections must be in writing and must set a deadline within which the interested parties may make their views known to the Commission in writing. The Statement of Objections should not only identify the objections to which the recipient undertaking must reply but should also consider the appropriateness of presenting remedies. The Commission may base its decisions only on objections in respect of which interested parties have been given the opportunity to comment.
Article 17 of Regulation No 802/2004 grants a right of access to the file to the parties to whom the Commission has addressed its objections so that they can exercise their rights of defense. The principles governing the right of access to the file in competition proceedings are applicable in merger cases. A blanket refusal to grant access to the answers provided during a market investigation relating to the commitments of an interested party must be justified. On the other hand, the addressee of the Statement of Objections may be refused access to all or part of documents containing business secrets of other undertakings, internal Commission documents, information enabling the identification of complainants who wish to remain anonymous or to information submitted to the Commission provided that its confidential nature is respected. Exceptions to the right of access to the file are strictly interpreted.
When considering the question of the scope of the public’s right of access to documents of the institutions governed by Regulation No 1049/2001, the Court of Justice specified that the Commission must state the specific reasons why its refusal of access to the whole of the disputed report is justified in view of the risk of seriously undermining the decision-making process, where the document in question concerns a closed administrative procedure. Similarly, it would constitute an infringement of the second indent of Article 4(2) of the Regulation for the Commission to refuse access to the notes in response from the legal service on the basis of the exception relating to the protection of legal advice, without having first carried out an examination of the content of those notes.
In addition, the notifying parties having so requested in their written comments may be heard by the Commission in a formal hearing, where the European authority intends either to take a final decision or to impose a fine. The formal hearing is conducted by the Hearing Officer. The persons invited by the Commission at a date fixed by it must appear in person or through legal or statutory representatives. They may be assisted by legal counsel. The hearing is not public. Each person is heard alone or in the presence of other persons, taking into account the need to protect business secrets or confidential information. Statements are recorded. The recording is made available to the persons heard at their request (Regulation No 802/2004, Art. 15).
The right to be heard at any stage of the merger control proceedings is also open to third parties, i.e. natural or legal persons who suffer the incidental effects of the decision, provided that they can justify a sufficient interest (Regulation No 802/2004, Art. 16). Standing as third parties has been granted to competitors of the parties to the concentration and to institutions representing the personnel of the undertakings concerned, as well as to members of the administrative or management bodies of the undertakings concerned, or to consumer associations, where the proposed concentration concerns products or services used by final consumers (Regulation No 802/2004, Art. 11). However, third parties do not enjoy identical guarantees to those given to the interested parties. They must submit a request to be heard in writing. In response the Commission informs them in writing of the subject-matter and nature of the proceedings and fixes a time-limit to make known their views. Only the request for hearing, and not the request for information, creates an obligation of information imposed on the Commission. Furthermore, the Court of Justice considers that Regulation No 1049/2001, interpreted in the light of the regulations specific to merger control, allows the Commission to refuse access to all documents relating to merger control procedures exchanged between the Commission and the notifying undertakings and third parties, without first carrying out a concrete and individual examination of these documents.
