COMPETITION • EUROPEAN LAW • PROCEDURE
The right to be heard only deals with decisions taken in the context of legal or administrative procedures for the termination of an infringement or for a declaration that an agreement, decision or concerted practice is incompatible with the Treaty, such as the Statement of Objections. Thus, the fact that the Commission failed to carry out any investigation with respect to an undertaking and did not contact it before issuing the Statement of Objections, does not affect the regularity of the procedure, insofar as the undertaking was given the opportunity to make known its views effectively during the administrative procedure. In effect, the Commission is not bound by any general duty to personally inform each undertaking of the proceedings concerning it at the initial stage of the investigation and the principle of adversarial proceedings does not apply prior to the Statement of Objections: it is only obliged to inform the undertaking of the first investigative measures which specifically concerns it.
The Commission must always however give the undertaking the opportunity to comment before imposing any fine based on Article 23 or periodic penalty payment based on Article 24 of Regulation No 1/2003. This hearing is only compulsory, as far as penalty payments are concerned, prior to the decision by definitively fixing the amount. The procedure for adopting decisions imposing periodic penalty payments in fact involves two stages. In the first stage, the Commission fixes a periodic penalty payment not exceeding 5% of the average daily turnover in the preceding business year for each day of delay. Accordingly, during first stage, an undertaking cannot object that the Commission has not given it an opportunity to state its views.