access to file – an effective right of defence? martin bechtold 27 june 2005

Access to File – An Effective Right of Defence?

Martin Bechtold27 June 2005

Access to File · 27 June 2005 2

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


Overview

Timing of access Scope of access Role of the Hearing Officer


I. Timing of Access

When is access granted: in Mergersin Article 81/82 proceedings?


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 SOLimited access before SO: “Key documents” if

6(1)(c) decision to enter Phase II


I. Timing of Access: Mergers

Query whether access should be granted earlier:

To consider commitments in Phase ITo consider challenging an Article 6(1)(c)

decision


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.


I. Timing of Access: Article 81/82 Query whether access could not be granted

earlier:Long investigation periodGreater amount of information on the Commission’s

fileMore fact-finding (dawn raids, more Art. 18

requests) Potential examples:

Access to “key documents” before SOBefore Article 9 commitments Informal closing of file by Commission


II. Scope of Access Quality of Access

Timing Constraints Practical Constraints

Confidentiality conflictsClassification standardPotential conflict resolutions


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


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.


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 materialLess ideal solutions:

– Range figures (e.g. for bid data analysis)– Summaries


III. Role of the Hearing Officer Role of the Hearing Officer

Mandate“Soft factors”


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


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

Clifford Chance, Avenue Louise 65, Box 2, 1050 Brussels, Belgium© Clifford Chance LLP 2005Clifford Chance Limited Liability Partnership

www.cliffordchance.com

Access to File

DMS ‘180609

access to file – an effective right of defence? martin bechtold 27 june 2005

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