COMPETITION • EUROPEAN LAW • PROCEDURE
Under Article 10 of Regulation No 773/2004, the Commission informs the parties concerned of the objections raised against them. The Statement of Objections is a mandatory preparatory step before the adoption of any final decision. It sets out the Commission’s position and indicates the legislation on the basis of which it will take a decision. The Statement of Objections is addressed to all undertakings whose interests are substantially affected by the Commission’s decision.
The content of the Statement of Objections is, in principle, determined by the Commissioner for Competition. However, this function can be delegated to the Director-General for Competition. The Statement of Objections must indicate the essential facts on which the Commission bases its case, and how it assesses those facts. This statement may be succinct as long as it is clear and allows the addressee, during the administrative procedure, to make known in an effective manner its views on the truth and relevance of the facts and circumstances relied on. The Statement of Objections must be individually adapted for each of the addressees. It must set out the behavior and evidence directly relating to them and contain a detailed description of the infringements by stating for each of them the evidence on which the Commission relies.
In order for the Statement of Objections to allow the addressee to exercise its rights of defense, the Commission must annex the incriminating and exculpatory documents it intends to use and should also include those it considers as being neutral. However, the Commission cannot simply annex the documents which it relied on in finding the liability of an undertaking to the Statement of Objections, without referring to those facts expressly in the wording itself of that statement, unless the undertaking would reasonably have been able to predict the conclusions that the Commission would draw from them. It may either send all the documents in question, or attach a list of documents available at its premises.
When the Commission intends to impose a pecuniary sanction, it must set out in the statement the main factual and legal criteria justifying the imposition of a fine, but it is under no obligation to explain the way in which it will use each of those elements in determining the level of the fine.