Procedural rights and obligations of third parties in antitrust investigations and proceedings by the European Commission

I. Introduction

1. This paper provides a systematic overview of the procedural rights and obligations of third parties in investigations and proceedings conducted by the European Commission for the enforcement of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).

2. Article 101 TFEU prohibits agreements between undertakings and decisions by associations of undertakings that may affect trade between EU Member States and restrict competition without redeeming virtue. Article 102 TFEU prohibits any abuse by one or more undertakings of a dominant position within the EU internal market or in a substantial part of it in so far as it may affect trade between EU Member States. [1]

3. The main implementing regulation of Articles 101 and 102 TFEU, adopted on the basis of Article 103 TFEU, is Regulation 1/2003.  [2] Under Regulation 1/2003, both the European Commission and the competition authorities of the EU Member States have the task of enforcing Articles 101 and 102 TFEU. [3] This paper only considers investigations and proceedings conducted by the European Commission.

4. This paper does not cover proceedings for the control of concentrations under the EU Merger Regulation. [4]

5. The third parties considered in this paper comprise all natural or legal persons, undertakings and associations of undertakings other than those under investigation (and other than the European Commission, which conducts the investigation and proceedings, and the competition authorities of the EU Member States and other authorities with which the European Commission cooperates in its investigations and proceedings). More detail is provided in chapter II. “Who are third parties?”

6. This paper considers all stages or phases of antitrust investigations or proceedings conducted by the European Commission, from (before the start of) the preliminary investigation phase until the closure of proceedings through the adoption of a final decision or otherwise, but not subsequent actions for annulment before the EU Courts. An overview of the European Commission’s antitrust procedures from start to end is provided in chapter III. “Overview of the European Commission’s antitrust procedures.”

7. Chapter IV examines the possibilities for third parties to inform the European Commission about a suspected infringement and to trigger an investigation by the European Commission. Chapter V deals with the obligations and rights of third parties when responding to requests for information sent to them by the European Commission, when participating in interviews, and when submitting to inspections conducted by the European Commission. Chapter VI analyses the possibilities for third parties to obtain information about pending proceedings and to express their views in them. Chapter VII sets out the rules on the use of languages, and chapter VIII deals with the protection of business secrets and other confidential information, and the restrictions on the use of information obtained by third parties through their participation in the European Commission’s proceedings.

II. Who are third parties?

1. Natural or legal persons, undertakings and associations of undertakings other than those under investigation

8. As already mentioned, third parties are all natural or legal persons, undertakings and associations of undertakings other than those under investigation (and other than the European Commission, which conducts the investigation and proceedings, and the competition authorities of the EU Member States and other authorities with which the European Commission cooperates in its investigations and proceedings).

2. The concept of an undertaking in EU competition law and the need to conduct proceedings against companies or other persons

9. Article 101 TFEU prohibits “agreements between undertakings” and “decisions by associations of undertakings” that may affect trade between EU Member States and restrict competition without redeeming virtue. Article 102 TFEU prohibits any abuse “by one or more undertakings” of a dominant position within the EU internal market or in a substantial part of it in so far as it may affect trade between EU Member States.

10. As the EU Court of Justice has pointed out, “[t]he authors of the Treaties [thus] chose to use the concept of an undertaking to designate the perpetrator of an infringement of competition law, who is liable to be punished pursuant to (…) Articles 101 TFEU and 102 TFEU, and not the concept of a company or firm or of a legal person. ” [5]

11. The concept of an undertaking has been defined by the EU Courts and designates an economic unit even if in law that economic unit consists of several legal or natural persons. [6] For instance, a parent company and one or more subsidiaries that together form a single economic unit constitute a single undertaking for the purposes of Articles 101 and 102 TFEU.

12. For reasons of enforceability,  [7] the European Commission does however not address its decisions (for instance a decision finding an infringement of Article 102 by an undertaking, ordering its termination and/or imposing fines (infringement decision)), to the undertaking concerned, but rather to the legal (or natural) [8] persons that are responsible for the operation of the undertaking concerned. [9] For instance, if the undertaking under investigation comprises a parent company and a subsidiary, the European Commission may address the infringement decision to the parent company or the subsidiary or both. [10]

13. The companies or other persons that are the envisaged addressees of the decision are also the persons that each enjoy the procedural rights that the European Commission must respect before adopting the decision.  [11] For instance, before adopting an infringement decision addressed to a parent company and a subsidiary that are both held liable for the infringement, the European Commission must initiate proceedings against both companies and send a statement of objections to both. Each of these companies has a separate right to have access to the file, make written submissions and request an oral hearing. [12]

14. While the investigation in substance concerns the suspected infringement by the undertaking under investigation, the European Commission thus conducts its proceedings against the companies (or other persons) under investigation, being the companies (or other persons) considered responsible for the operation of the undertaking under investigation. [13]

15. The undertaking/person distinction is not only relevant on the side of those under investigation, but also on the side of third parties.

16. Where Regulation 1/2003 grants certain rights to third parties, such as the right to lodge a complaint or the right to be heard as interested third person, it grants these rights to natural or legal persons.  [14]

17. The concept of an undertaking is however also relevant when third parties are the target of the European Commission’s powers of investigation. Article 18 of Regulation 1/2003 empowers the European Commission to require “undertakings and associations of undertakings” to supply information necessary for its investigation, and Article 20 of Regulation 1/2003 empowers the Commission to conduct “all necessary inspections of undertakings and associations of undertakings.” These powers of investigation can also be used to obtain information from third party undertakings. [15] For reasons of enforceability, decisions are however addressed to the companies (or other persons) responsible for the operation of the undertaking.  [16]

3. Who are the undertakings/companies under investigation depends on the scope of the investigation

18. Who are the undertakings/companies under investigation (and hence who are third parties) depends on the scope of the investigation as conducted by the European Commission.

19. The European Commission has a broad discretion to determine the scope of its investigations. [17] It may, on grounds of expediency, limit its investigation and proceedings to certain undertakings (for instance, the main participants to a suspected cartel, or those participants for which the evidence is most readily available) or to certain companies responsible for the operation of the undertakings concerned (for instance, only the companies directly involved in the cartel behaviour, or also the ultimate parent companies). [18] It may also change the scope of the investigation in the course of the investigation, adding or removing companies under investigation.

20. When exercising this discretion as to the scope of its investigations, the European Commission must however use objective criteria, compatible with the principle of equal treatment and the principle of proportionality. [19]

21. Whether an undertaking/company is an undertaking/company under investigation or rather a third party in relation to certain proceedings may also depend on whether the European Commission has made a certain factual situation the subject of one or more separate proceedings. The European Commission is entitled both to disjoin and to join proceedings for objective reasons. [20] For instance, in the Alrosa and De Beers case, which concerned the supply of rough diamonds between Alrosa and two subsidiaries of the De Beers group, the European Commission opened two parallel proceedings, one based on Article 101 TFEU, in which it sent a statement of objections to both Alrosa and De Beers, and the other based on Article 102 TFEU, in which it sent a separate statement of objections only to De Beers. Following the Opinion of Advocate General Kokott, the Court of Justice confirmed that, in relation to the proceedings under Article 102 TFEU, Alrosa was a third party. The situation would have been different only if it had transpired that the European Commission had arbitrarily, that is without an objective reason, made a single factual situation the subject of two separate proceedings. This was however not the case, as it was objectively justified to conduct two separate proceedings in view of their different material legal bases, Article 101 TFEU on the one hand and Article 102 TFEU on the other. [21]

4. How to find out who are the undertakings/companies under investigation

22. An essential step in any antitrust procedure that advances beyond the preliminary investigation stage is the initiation or opening of proceedings.  [22] In cases other than cartel cases,  [23] the initiation of proceedings usually takes place once the European Commission’s initial assessment leads to the conclusion that the case merits further investigation and the scope of the investigation has been sufficiently defined. The initiation of proceedings then signals a commitment on the part of the European Commission to further investigate the case. [24] In cartel cases, the initiation of proceedings usually takes place later, simultaneously with the adoption of the statement of objections. [25]

23. One of the functions of the initiation of proceedings is to identify the companies under investigation. [26] The decision initiating proceedings is notified to the companies under investigation. In addition, the European Commission’s practice is to publish the initiation of proceedings on its website and to issue a press release, unless such publication may harm the investigation.  [27]

24. If at a later stage of the proceedings, the European Commission considers that the proceedings should be extended to cover more companies, it may take a further decision initiating proceedings also against those additional companies. Again, this decision will be notified to the companies concerned, and may be made public.  [28]

25. If the European Commission at a later stage of the proceedings concludes that there are no grounds to continue the proceedings with regard to one or more of the companies under investigation, it will close the proceedings in relation to those companies. It will again notify the companies concerned of this decision, and, if the initiation of proceedings had been made public, note the closure on its website and/or issue a press release. [29]

26. Already before the initiation of proceedings, companies subject to an investigative measure by the European Commission under Chapter V of Regulation 1/2003, for instance a request for information pursuant to Article 18 of regulation 1/2003, have the right to be informed of their procedural status, in particular whether they are themselves subject to an investigation.  [30]

27. Companies that have been subject to an investigative measure may at any time inquire with the Directorate-General for Competition about the status of the investigation. If such a company considers that it has not been properly informed by the Directorate-General for Competition of its procedural status, it may refer the matter to the Hearing Officer. If the Hearing Officer finds that the company has not been properly informed, the Hearing Officer will take a decision that the Directorate-General for Competition will inform the company of its procedural status. [31]

III. Overview of the European Commission’s antitrust procedures

28. The antitrust procedures before the European Commission are administrative procedures, in which the Commission, which is an administrative, non-judicial body, acts both as investigator and as first-instance decision-maker. [32]

29. Investigations may get started on the basis of a complaint, [33] information otherwise received from market participants or informants, [34] information received from other authorities, [35] or obtained by the European Commission through its own monitoring of markets, [36] or in the context of another investigation, [37] or, for secret cartels, an application for immunity under the European Commission’s Leniency Programme. [38]

30. To supplement the initial information thus obtained, the European Commission can make use of the powers of investigation set out in Chapter V of Regulation 1/2003, namely requests for information pursuant to Article 18, interviews pursuant to Article 19, and inspections pursuant to Articles 20 and 21 of Regulation 1/2003. [39]

31. The investigation or proceedings will ultimately end in one of four possible ways:

– the European Commission may adopt a decision pursuant to Article 7 and/or Article 23(2) of Regulation 1/2003 finding an infringement of Articles 101 and/or 102 TFEU, ordering its termination and/or imposing fines (infringement decision);

– it may accept commitments and make these binding through a decision pursuant to Article 9 of Regulation 1/2003 (commitment decision);  [40]

– in exceptional cases where the public interest of the EU so requires, [41] it may, pursuant to Article 10 of Regulation 1/2003, adopt a declaratory decision finding that Articles 101 and/or 102 TFEU are not applicable to the agreements or practices investigated (non-infringement decision); or

– it may simply close the investigation or proceedings (simple closure).

32. Before an infringement decision can be adopted, the European Commission must take a decision initiating proceedings, [42] and address a statement of objections to the companies under investigation. [43] Following the receipt of the statement of objections, the companies under investigation are entitled to access the European Commission’s investigation file,  [44] and to respond in writing to the statement of objections within a set time limit. [45] If they request so in their written reply to the statement of objections, the companies under investigation are also entitled to develop their arguments further at an oral hearing. [46] As the investigation progresses and conclusions are drawn from the replies to the statement of objections, the European Commission may adopt supplementary statements of objections, which again trigger for the companies under investigation the rights of access to the file, written reply and oral hearing.  [47] As a final step before adopting the infringement decision, the European Commission must consult the Advisory Committee on Restrictive Practices and Dominant Positions, which is composed of representatives of the competition authorities of the EU Member States. [48]

33. In cases of urgency due to the risk of serious and irreparable damage to competition, the European Commission may, already before adopting an infringement decision, on the basis of a prima facie finding of infringement, order interim measures pursuant to Article 8 of Regulation 1/2003 (interim measures decision). Like the adoption of an infringement decision, the adoption of an interim measures decision must be preceded by a decision initiating proceedings, [49] as well as a statement of objections, [50] which triggers for the companies under investigation the rights of access to the file, [51] written reply and oral hearing. [52] The Advisory Committee must also be consulted. [53]

34. Specifically for cartel cases,  [54] the European Commission has created a cartel settlement procedure, [55] which is an alternative procedure for reaching an infringement decision, which can be used if both the European Commission and the companies under investigation prefer it instead of the normal procedure. Under the cartel settlement procedure, after the initiation of proceedings but before the adoption of a statement of objections, the European Commission and the companies under investigation conduct settlement discussions, culminating in the companies under investigation making settlement submissions. The statement of objections then mirrors those settlement submissions, and the companies under investigation in their written reply to the statement of objections simply confirm their agreement, and waive their right to an oral hearing. Like for any other infringement decision, as a final step before adopting the infringement decision, the European Commission must consult the Advisory Committee.  [56]

35. In cases other than secret cartel cases, [57] the companies under investigation may, at any time during the investigation and proceedings, propose to the European Commission to close the proceedings through a commitment decision.  [58] The European Commission is however never obliged to close the proceedings through a commitment decision instead of an infringement decision. [59] If the companies under investigation offer the commitments after the statement of objections or after an interim measures decision, the commitments must meet the concerns expressed in the statement of objections and/or interim measures decision. [60] If they are offered at an earlier stage of the investigation or proceedings, and the European Commission is willing to close the case through a commitment decision, the European Commission will first adopt a preliminary assessment, [61] and the commitments offered must meet the concerns expressed in that preliminary assessment. Before adopting the commitment decision, the European Commission must publish a concise summary of the case and the main content of the commitments, inviting observations from interested third parties (market test).  [62] As a final step before adopting the commitment decision, the European Commission must consult the Advisory Committee. [63] The commitment decision makes the commitments binding, while concluding that there are no longer grounds for action by the European Commission, but without concluding whether or not there has been or still is an infringement.  [64]

36. Before adopting a non-infringement decision, the European Commission must, like before adopting a commitment decision, publish a concise summary of the case and the main content of the proposed course of action, inviting observations from interested third parties (market test),  [65] and consult the Advisory Committee. [66]

37. Finally, at any time during the investigation and proceedings, the European Commission can bring the investigation and proceedings to an end through a simple closure. Unless it had not yet contacted the companies under investigation, the European Commission will inform those companies of the closure, and if it had already made public its investigation, it will note the closure on its website and/or issue a press release. [67]

IV. Informing the European Commission about a suspected infringement and triggering an investigation

1. Informing the European Commission about a suspected infringement

1.1 Anyone can provide information in any way or form

38. Information from citizens and businesses is important in triggering investigations by the European Commission.  [68] The European Commission therefore encourages citizens and businesses to inform it about suspected infringements of Articles 101 and 102 TFEU. [69]

39. Any third person can inform the European Commission about a suspected antitrust infringement: consumers, consumer associations, competitors, customers, suppliers, business associations, disgruntled current or former employees, et cetera. [70]

40. The website of the Directorate-General for Competition provides a dedicated email address and telephone number for information about suspected infringements, [71] but information can also be provided in any other way or form. [72]

41. If the information is provided orally, there is no need to follow the formal requirements for interviews pursuant to Article 19 of Regulation 1/2003 and Article 3 of Regulation 773/2004, given that the European Commission has at this preliminary stage not yet started an investigation. [73]

1.2 Informants can remain anonymous

42. Informants have the right to remain anonymous if they wish so. Indeed, where the European Commission accepts information supplied on a purely voluntary basis, accompanied by a request for confidentiality to protect the informant’s anonymity, it is in principle bound to comply with such a condition.  [74]

43. The EU Courts have affirmed that the European Commission’s ability to guarantee the anonymity of certain of its sources of information is of crucial importance for the effective enforcement of Articles 101 and 102 TFEU. [75]

44. An anonymous whistleblower tool is available on the website of the European Commission. [76] It is a specifically designed encrypted messaging system that allows two-way communications between informants and the Directorate-General for Competition. The service is run by a specialised external service provider that acts as an intermediary, and which relays only the content of received messages without forwarding any metadata that could be used to identify the informant. [77]

45. If the information provided by the informant is subsequently used by the European Commission to justify the opening of an investigation and the conduct of inspections at the premises of the suspected companies, the European Commission will not share with the national competition authorities and courts involved in those inspections any information revealing the identity of the informant, or enabling that identity to be deduced. [78]

46. If the information provided by the informant who requested anonymity subsequently leads to the adoption of a statement of objections and an infringement decision against the companies under investigation, the anonymity of the informant will remain protected. The European Commission may use the information provided by the informant as evidence in the statement of objections and the infringement decision, but only if this can be done without revealing the identity of the informant or enabling that identity to be deduced. [79] Similarly, when granting the companies under investigation access to its investigation file, [80] the European Commission will ensure that the anonymity of the informant remains protected, by denying access to any information that would allow the informant’s identity to be deduced. [81]

47. The informant requesting anonymity should, when providing documents, inform the European Commission that it is possible to infer his or her identity as the informant from the documents themselves.  [82]

1.3 Informants can strengthen their procedural position by lodging a complaint

48. Provided that they fulfil the substantive and procedural requirements set out below,  [83] informants can strengthen their procedural position by lodging a complaint. [84]

49. Article 7(1) of Regulation 1/2003 provides that the European Commission can find an infringement of Articles 101 or 102 TFEU “acting on a complaint or on its own initiative.”  [85] The last sentence of Article 27(1) of Regulation 1/2003 provides that “complainants shall be closely associated with the proceedings.”

50. It should be noted that the procedural status of complainant has been created by Regulation 1/2003 in relation to its Article 7 (finding of an infringement and ordering its termination).  [86] There is no procedural status of complainant in relation to Article 23 of Regulation 1/2003 (imposition of fines), [87] or in relation to Article 8 of Regulation 1/2003 (interim measures). [88]

1.3.1 Substantive and procedural requirements to become a complainant

51. According to Article 7(2) of Regulation 1/2003, “those entitled to lodge a complaint (…) are natural or legal persons who can show a legitimate interest and Member States.”  [89]

52. According to the case law, the requirement to show a legitimate interest means that the natural or legal person (other than an EU Member State) must show that “his [or her] economic interests have been harmed or are likely to be harmed” as a result of the alleged infringement of Articles 101 or 102 TFEU.  [90]

53. A person that is a party to a contract that constitutes or is part of the alleged infringement can also lodge a complaint, if that person does not bear significant responsibility for the alleged infringement, particularly where the terms of the contract were imposed on that person by a stronger party against its economic interests. [91]

54. Business associations and consumer associations can lodge a complaint if, first, they are entitled to represent the interests of their members and, secondly, the interests of their members have been harmed or are likely to be harmed as a result of the alleged infringement.  [92]

55. In addition to the substantive requirement of having a legitimate interest, Regulation 773/2004 imposes also a procedural requirement for a complaint to be admissible, namely the provision of the information required by Form C, set out in the Annex to Regulation 773/2004. [93]

56. The European Commission may however dispense with this obligation as regards part of the information, including documents required by Form C. [94]

57. There is no incompatibility between lodging a complaint and remaining anonymous.  [95] As mentioned above, [96] it is clear from the case law of the EU Courts that, where the European Commission accepts information supplied on a purely voluntary basis, accompanied by a request for confidentiality to protect the informant’s anonymity, it is in principle bound to comply with such a condition. [97] Lodging a complaint is always a purely voluntary act, and there is no provision in Regulation 1/2003, Regulation 773/2004 and Form C precluding anonymous complaints.  [98]

58. Finally, whereas the European Commission has delegated to its Hearing Officer the power to decide on applications to be heard by interested third persons, [99] the Hearing Officer does not have any role in deciding on the admissibility of complaints.  [100]

1.3.2 Procedural rights of complainants

59. Becoming a complainant provides two types of procedural benefits.

60. First, if the European Commission initiates proceedings and if it subsequently issues a statement of objections relating to a matter covered by the complaint, the complainant must, according to Article 27(4) of Regulation 1/2003, “be closely associated with the proceedings.”

61. This does however not mean that the proceedings become adversarial proceedings between the complainant and the companies under investigation. Even when a complaint is at the origin of the investigation, the ensuing proceedings are proceedings commenced and conducted by the European Commission, in fulfilment of its task to implement EU competition policy, against the companies under investigation.  [101] It follows that complainants and companies under investigation are not in the same procedural situation, and that the procedural rights of complainants are not as far-reaching as the procedural rights of the companies under investigation. Whereas complainants must be given the opportunity to defend their legitimate interests in the course of the proceedings initiated by the European Commission and therefore be closely associated with them, their procedural rights are not as far-reaching as the rights of the defence of the companies under investigation, and cannot be allowed to interfere with the rights of the defence of the companies under investigation.  [102]

62. As will be discussed further below, [103] the main manifestations of the complainants’ close association with the proceedings are that they are entitled to a copy of the non-confidential version of the statement of objections if a statement of objections is issued on a matter covered by their complaint, [104] and that they are most likely to be allowed to express their views at the oral hearing of the addressees of the statement of objections if those addressees request such a hearing. [105]

63. Secondly, as discussed further below, [106] if the European Commission does not intend to act on the complaint or part of the complaint, including if the European Commission, after having initially acted on the complaint by initiating proceedings and possibly subsequently issuing a statement of objections, later decides no longer to act on the complaint, the complainant is entitled to a reasoned decision rejecting its complaint.

2. No right to trigger an investigation, let alone an infringement decision

2.1 The European Commission has a wide discretion to set its enforcement priorities

64. Whereas, as mentioned above,  [107] anyone can inform the European Commission about a suspected infringement of Articles 101 or 102 TFEU, nobody can compel the European Commission to carry out an investigation, to initiate proceedings, or to continue proceedings up to the stage of a final decision as to the existence or non-existence of the alleged infringement.  [108]

65. According to the case law of the EU Courts, the European Commission, entrusted by Article 105(1) TFEU with the task of ensuring the application of the principles laid down in Articles 101 and 102 TFEU, is responsible for defining and implementing the orientation of EU competition policy. In order to perform that task effectively, the European Commission has a broad discretion to select the cases which it investigates and in which it continues the proceedings up to the stage of a final decision. [109]

66. It is not the task of the European Commission to settle individual disputes. [110] Third parties that consider themselves harmed by an alleged infringement of Articles 101 or 102 TFEU are not dependent on action by the European Commission, as they can bring a private action in the courts of the EU Member States. [111] Indeed, Article 101(2) TFEU provides that any agreements or decisions prohibited pursuant to Article 101 TFEU shall be automatically void, and the case law has clarified that Article 101(1) and Article 102 TFEU produce direct effects between individuals and create rights for these individuals, and that the national courts whose task it is to apply the provisions of EU law in areas within their jurisdiction must ensure that those rules take full effect and must protect the rights which they confer on individuals, by granting injunctive relief, including interim relief, as well as compensation for harm suffered, under conditions that may not be less favourable than those governing the protection of comparable rights under national law and that ensure the effective protection of the rights conferred by Articles 101(1) and 102 TFEU.  [112]

2.2 Complainants are entitled to a reasoned and reviewable decision settling the fate of their complaint

67. While complainants, like anyone else, cannot compel the European Commission to carry out an investigation, to initiate proceedings, or to continue proceedings up to the stage of a final decision as to the existence or non-existence of the alleged infringement,  [113] complainants have the right to have the fate of their complaint settled within a reasonable time by a decision of the European Commission against which they can bring an action before the EU Courts.  [114]

68. The European Commission has indicated that it “will in principle endeavour to inform complainants of the action that it proposes to take on a complaint within an indicative time frame of four months from the reception of the complaint.” [115]

69. If the European Commission already at this stage comes to the preliminary conclusion that it does not intend to act on the complaint, it must start the procedure for rejecting the complaint.

70. The same procedure for rejecting the complaint must also be followed if the Commission does not immediately reject the complaint but at a later stage of the investigation or proceedings comes to the preliminary conclusion that it does not or no longer intend to adopt a decision pursuant to Article 7 of Regulation 1/2003 finding an infringement and ordering its termination as requested by the complainant.

71. Before starting the procedure for rejecting the complaint, the European Commission will normally first inform the complainant in a meeting or by phone. The complainant may then decide to withdraw its complaint. [116]

72. If the complainant has not withdrawn its complaint, the European Commission must send the complainant a pre-rejection letter pursuant to Article 7 of Regulation 773/2004, informing the complainant of the reasons why it does not intend to act or to continue acting on the complaint, and set a time limit within which the complainant may make know its views in writing.  [117]

73. The complainant may then request access to the documents on which the European Commission bases its reasoning, or at least non-confidential versions of those documents, as the complainant is not entitled to have access to business secrets or other confidential information belonging to the other parties involved in the proceedings.  [118] This right of access is limited to the documents on which the European Commission’s intention to reject the complaint, as set out in the letter pursuant to Article 7 of Regulation 773/2004, is based. It is thus not as far-reaching as the right of access to the entire investigation file afforded to addressees of a statement of objections. [119]

74. If the complaint is rejected at a very early stage, merely on the basis of an analysis of the complaint itself, without the European Commission having collected any other information, the complaint itself may be the only document on which the European Commission’s intention to reject the complaint, as set out in the letter pursuant to Article 7 of Regulation 773/2004, is based. In such a case, there are no documents the European Commission needs to give access to.

75. In other cases, the European Commission’s intention to reject the complaint, as set out in the letter pursuant to Article 7 of Regulation 773/2004, may be based on information it has collected from the undertakings targeted by the complaint or from third parties in response to requests for information, [120] or on the response of the undertakings targeted by the complaint if these have been granted the opportunity to comment on a non-confidential version of the complaint. [121] In such a case, access will be given to a non-confidential version of these responses. [122]

76. Where the European Commission’s intention to reject the complaint, as set out in the letter pursuant to Article 7 of Regulation 773/2004, is based on the intention to close the proceedings through the adoption of a commitment decision pursuant to Article 9 of Regulation 1/2003 making binding the commitments offered by the companies under investigation that meet the concerns expressed to them in a preliminary assessment, [123] access will be given to a non-confidential version of the preliminary assessment and of the commitments. [124]

77. If the complainant considers that it has not been given the access to documents it is entitled to under Article 8 of Regulation 773/2004, the complainant may, after having raised the issue with the Directorate-General for Competition, make a reasoned request to the Hearing Officer, to whom the European Commission has delegated its decisional powers in this respect.  [125]

78. The time limit within which the complainant may make known its views in writing must be at least four weeks. [126] If the complainant considers that the time limit is too short, it may request an extension first from the Directorate-General for Competition and, if unsuccessful, from the Hearing Officer, to whom the European Commission has delegated its decisional powers in this respect. [127]

79. The complainant is entitled to make known its views in writing, but not at an oral hearing.  [128]

80. If the complainant fails to make known its views in writing within the time limit set by the European Commission, the complaint is deemed to have been withdrawn. [129]

81. If the complainant makes known its views within the time limit set by the European Commission, and those written submissions do not lead the European Commission to change its intention not or no longer to act on the complaint, the European Commission must reject the complaint by decision. [130]

82. This decision, against which the complainant can bring an action for annulment before the EU General Court, with a possible subsequent appeal on points of law before the EU Court of Justice, must “state the reasons for [the European Commission’s] assessment of whether or not it was appropriate to examine the complaint any further, in a sufficiently precise and detailed manner to enable the [EU Courts] effectively to review the Commission’s use of its discretion to define priorities.” [131]

83. However, according to settled case law, [132] “the review by the Courts of the European Union of the Commission’s exercise of its discretion must not lead them to substitute their assessment of [the priorities of EU antitrust enforcement] [133] for that of the European Commission, but focuses on whether the contested decision is based on materially incorrect facts, or is vitiated by an error of law, manifest error of appraisal or misuse of powers.”

84. In practice, in some cases complainants have been successful in obtaining the annulment of a decision rejecting their complaint. [134] However, in all the cases where this has happened, the European Commission subsequently adopted a new decision, again rejecting the complaint but now with a better reasoning. [135] Never has a complainant been successful in making the European Commission change course after an annulment, in the sense that the European Commission would have started acting (again) on the complaint as a result of the annulment. All annulments of decisions rejecting complaints have thus been Pyrrhic victories. [136]

85. This state of affairs is not really surprising, given that, as mentioned above, the European Commission has a broad discretion to select the cases which it investigates and in which it continues the proceedings up to the stage of a final decision. [137]

86. While this state of affairs should certainly make complainants that have received a decision rejecting their complaint think twice before embarking on an application for annulment, it does not in my view follow that the right of complainants to a reasoned and reviewable decision and the procedure for rejecting complaints do not serve any useful purpose. [138]

87. First, while there are no examples of cases where the European Commission changed its orientation following the annulment of a decision rejecting a complaint, there is at least one known example of a case in which such a change happened following the receipt of the complainants’ written observations on the pre-rejection letter pursuant to Article 7 of Regulation 773/2004. [139]

88. Secondly, the threat of a possible annulment by the EU Courts and the subsequent need to adopt a new decision, with the resulting administrative and reputational costs, has a disciplining effect on the European Commission, thus ensuring that it considers attentively all matters of fact and of law which the complainant brings to its attention and considers all the relevant matters of law and of fact in setting its enforcement priorities in relation to the complaint, as required by the case law. [140] This is turn provides a guarantee to prospective complainants, and may help convince them to lodge complaints which the European Commission would be interested in receiving and acting upon.

89. Finally, the right of complainants to a reasoned and reviewable decision rejecting their complaint strengthens the European Commission’s independence, in that it can help deflect pressure not to act on complaints against politically well-connected targets.  [141]

V. Responding to requests for information, participating in interviews and submitting to inspections

90. To collect information beyond the initial information triggering the investigation, the European Commission can make use of the powers of investigation set out in Chapter V of Regulation 1/2003, namely requests for information pursuant to Article 18, interviews pursuant to Article 19, and inspections pursuant to Article 20 of Regulation 1/2003.  [142]

91. These powers of investigation can be used during all stages of the investigation, from the preliminary investigation before the initiation of proceedings until after the statement of objections and the oral hearing. [143]

92. They can be used to obtain information not only from the undertakings/companies under investigation but also from third parties. [144]

1. Responding to requests for information

93. Article 18(1) of Regulation 1/2003 provides that “[i]n order to carry out the duties assigned to it by this Regulation, the Commission may, by simple request or by decision, require undertakings and associations of undertakings to provide all necessary information.”  [145]

94. Requests for information are regularly sent not only to the undertakings under investigation but also to other undertakings or associations of undertakings that may have information relevant for the case. [146]

95. While the European Commission’s power to request information concerns undertakings,  [147] requests for information are addressed to one or more of the companies (or other persons) responsible for the operation of the undertaking, for reasons of enforceability.  [148]

96. Article 18(4) of Regulation 1/2003 provides that the owners of the undertakings or their representatives and, in the case of legal persons, companies or firms, or associations having no legal personality, the persons authorised to represent them by law or by their constitution shall supply the information requested on behalf of the undertaking or the association of undertakings concerned. Lawyers duly authorised to act may supply the information on behalf of their clients. The latter shall remain fully responsible if the information supplied is incomplete, incorrect or misleading.

97. There are two types of requests for information: simple requests pursuant to Article 18(2) and requests by decision pursuant to Article 18(3) of Regulation 1/2003.

98. Addressees of simple requests for information are under no obligation to respond, but if they choose to respond (as most addressees do, if only to avoid receiving a request by decision), they can be fined up to 1% of their turnover in the preceding business year if they intentionally or negligently supply incorrect or misleading information in response to the request.  [149]

99. Addressees of requests for information by decision are under an obligation to respond. They can be fined up to 1% of their turnover in the preceding business year if they intentionally or negligently supply incorrect, incomplete or misleading information or do not supply information within the required time limit. [150] The European Commission can also, either in the decision requesting information or in a subsequent decision, impose periodic penalty payments of up to 5% of the average daily turnover in the preceding business year per day to compel the addressee to supply complete and correct information.  [151]

100. Both in simple requests for information and in decisions requesting information, the European Commission must state the legal basis and the purpose of the request, specify what information is required and fix the time limit within which the information is to be provided. [152]

101. The reasoning of the request must clarify whether the addressee is an undertaking/company under investigation or a third party.  [153]

102. Requests for information can be used to request both the handing-over of (copies of) existing documents that are detained by or accessible to [154] the undertakings or associations of undertakings concerned and the provision of answers to questions.

103. The power of the European Commission to request information, and the obligation to provide it if requested by decision, extends to “all necessary information,” [155] that is, all information for which the European Commission may reasonably suppose that it will help it to determine whether the infringement under investigation has taken place. [156] In practice, that means that there must be a connection between the information requested by the European Commission and the alleged infringement it investigates. [157]

104. There are two exceptions to this broad power to request “all necessary information.”  [158] These exceptions are primarily relevant for the undertakings under investigation, but may occasionally also be relevant for third parties.

105. The first exception flows from the privilege against self-incrimination. According to the case law of the EU Court of Justice, whilst the Commission is entitled to compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to it, if necessary, such documents relating thereto as are in its possession, even if the latter may be used to establish, against it or another undertaking, the existence of anti-competitive conduct, the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove.  [159] The privilege against self-incrimination thus only extends to directly incriminating questions (involving an admission of infringement), not to purely factual questions, nor to the disclosure of documents, and does not amount to a general right to remain silent. [160]

106. The privilege against self-incrimination can only be violated in case of compulsion, i.e. only in case of a request for information by decision pursuant to Article 18(3) of Regulation 1/2003, not in case of a simple request pursuant to Article 18(2) of Regulation 1/2003.  [161] It is, however, the Commission’s policy to avoid directly incriminating questions also in simple requests for information.  [162]

107. The second exception concerns legal professional privilege.  [163] According to the case law of the EU Court of Justice, the protection of the confidentiality of certain communications between lawyer and client is an essential corollary to the rights of the defence and serves the important requirement that everyone should be able without restraint to consult a lawyer to obtain independent legal advice.  [164] The communications protected are, however, limited to those between a client and an independent lawyer (not in-house counsel) entitled to practice in one of the EU or EEA Member States. [165] The protected communications are those made “for the purpose and in the interests of the client’s rights of defence,” that is to say which come into existence after the initiation of proceedings or which, although made earlier, “have a relationship to the subject-matter of that procedure.” [166] Internal documents of an undertaking summarising advice received from independent lawyers are also protected. [167] Similarly, internal preparatory documents are protected if drawn up exclusively for the purpose of seeking legal advice from an external lawyer in exercise of the rights of defence.  [168]

108. As to the time limit for responding to the request, paragraph 38 of the Notice on Best Practices provides that addressees are given a reasonable time limit to reply to the request, according to the length and complexity of the request taking into account the requirements of the investigation. In general, this time limit will be at least two weeks from the receipt of the request. If from the outset, it is considered that a longer period is required, the time limit to reply to the request will be set accordingly. When the scope of the request is limited, for example if it only covers a short clarification of information previously provided or information readily available to the addressee of the request, the time limit will normally be shorter (one week or less). [169]

109. Paragraph 39 of the Notice on Best Practices provides that, if the addressee of a decision requesting information considers that the time limit imposed for its reply is too short, it can make a reasoned request for extension to the Directorate-General for Competition, sufficiently in advance of the expiry of the time limit. If the Directorate-General for Competition considers the request to be justified, additional time will be granted. The Directorate-General for Competition may also agree with the addressee of the request that certain parts of the requested information that are of particular importance or easily available for the addressee will be supplied within a shorter time limit, whereas additional time will be granted for supplying the remaining information.

110. With regard to request for information by decision, Article 4(2)(c), read in conjunction with Article 3(7), of Decision 2011/695/EU, provides that, if the addressee is unsuccessful in resolving its concerns about the time limit with the Directorate-General for Competition, it may refer the matter to the Hearing Officer, in due time before the expiry of the original time limit set. The Hearing Officer shall decide on whether an extension of the time limit should be granted, taking account of the length and complexity of the request for information and the requirements of the investigation. [170]

111. The possibility to request from the Hearing Officer an extension of the time limit for replying to a request for information does not exist for simple requests for information, pursuant to Article 18(2) of Regulation 1/2003. This makes sense, because the addressees of such simple requests for information cannot be fined for not supplying information within the required time limit, only for supplying incorrect or misleading information. [171] Addressees of simple requests for information that consider that the time limit for their reply is too short, and that cannot obtain an extension from the Directorate-General for Competition, can thus not be sanctioned for not replying within the time limit. [172]

2. Participating in interviews

112. Article 19(1) of Regulation 1/2003 provides that “[i]n order to carry out the duties assigned to it by this Regulation, the Commission may interview any natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject-matter of the investigation.” [173]

113. Whereas the European Commission can only send requests for information to undertakings or associations of undertakings, any natural or legal person, including in particular any third party, can be an interviewee.

114. Both the European Commission and the interviewee can take the initiative for the interview, but interviews are always voluntary. The European Commission does not have the power to summon any natural or legal person to an interview. [174]

115. Interviews can take place remotely, by telephone or other electronic means, or in person, at the premises of the European Commission or of the interviewee or elsewhere. [175]

116. The European Commission must record the interview in full, but it is free to decide on the type of recording. [176] A copy of the recording must be made available to the interviewee. [177]

3. Submitting to inspections

117. Article 20(1) of Regulation 1/2003 provides that “[i]n order to carry out the duties assigned to it by this Regulation, the Commission may conduct all necessary inspections of undertakings and associations of undertakings.” [178]

118. Article 20(2) of Regulation 1/2003 specifies that the officials and other accompanying persons authorised by the European Commission to conduct the inspection are empowered “(a) to enter any premises, land and means of transport of undertakings and associations of undertakings; (b) to examine the books and other records related to the business, irrespective of the medium on which they are stored; (c) to take or to obtain in any form copies of or extracts from such books or records; (d) to seal any business premises and books or records for the period and to the extent necessary for the inspection; (e) to ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documents relating to the subject-matter and purpose of the inspection and to record the answers.” [179]

119. Even if much less frequent than requests for information addressed to third parties, inspections of undertakings and associations of undertakings other than those under investigation are possible, [180] and indeed have happened in some cases.

120. The European Commission’s powers of inspection concern undertakings. [181] Inspection decisions are typically addressed to the parent company “together with all subsidiaries directly or indirectly controlled by it.” [182]

121. Undertakings and associations of undertakings are required to submit to inspections ordered by decision, [183] and must actively cooperate with it. [184]

122. In case of opposition, the authorities of the Member State in whose territory the inspection is to be conducted must afford the necessary assistance to enable the inspection to proceed. [185] The European Commission can also impose fines of up to 1% of the total turnover in the preceding business year on undertakings that intentionally or negligently refuse to submit to inspections, produce the required books or other records relating to the business in incomplete form or give an incorrect or misleading answer to a question, or when seals are broken. [186]

123. Legal professional privilege and the privilege against self-incrimination, discussed above with respect to requests for information, [187] similarly limit the European Commission’s powers of inspection. The European Commission can neither examine nor copy documents protected by legal professional privilege as defined in the case law of the EU Courts, [188] nor ask for explanations that would require an admission of infringement.  [189]

VI. Obtaining information about and expressing one’s views in pending proceedings

1. Possibilities available to any third party

1.1 Press releases and publications on the website of the European Commission

124. As already mentioned above, [190] the European Commission normally publishes the initiation or opening of proceedings on its website and issues a press release. When the European Commission has addressed a statement of objections to the companies under investigation, it also normally publishes a press release setting out the key issues in the statement of objections. [191]

125. Even if these press releases and website publications normally do not contain any invitation for third parties to express their views, nothing prevents third parties from doing so, by using the general contact channels indicated on the European Commission’s website and referring to the press release and the case number usually mentioned in it.

1.2 Market test notices

126. As already mentioned above,  [192] before adopting a commitment decision or a non-infringement decision, the European Commission must publish in the Official Journal of the European Union a notice (market test notice) containing a concise summary of the case and the main content of the commitments or the proposed course of action. [193] The European Commission normally also publishes a parallel press release and may provide further information on its website. [194]

127. The market test notice always contains an explicit invitation for third parties to submit observations within a fixed time limit of no less than one month. [195]

1.3 No access to (documents in) the European Commission’s investigation file

128. While the companies under investigation, once the European Commission has addressed to them a statement of objections, have a right of access to the European Commission’s investigation file,  [196] third parties do not have any such right. [197]

129. Third parties might try to obtain access to documents in the European Commission’s investigation file by making a request for public access on the basis of the Regulation (EC) No 1049/2001 (the “Transparency Regulation”), [198] but such attempts are unlikely to be successful.

130. The Transparency Regulation defines the principles, conditions and limits on grounds of public or private interest governing the right of public access to documents held by EU institutions, including the European Commission.

131. Under the European Commission’s detailed internal rules for the application of the Transparency Regulation,  [199] it is open to any natural or legal person to request, on the basis of that regulation, access to documents held by the European Commission. [200] In accordance with Article 6(1) of the Transparency Regulation, there is no obligation to give reasons for such a request.

132. The Transparency Regulation does not allow the European Commission the possibility of granting access to a document subject to restrictions on the subsequent use and disclosure of that document. [201] Documents disclosed under the Transparency Regulation thus enter the public domain. [202]

133. Regulation 1/2003, however, contains specific rules regarding access to and the use of documents in the European Commission’s investigation file in antitrust proceedings. [203] The Transparency Regulation does not have primacy over either of those regulations. In these circumstances, the EU Courts have recognised that, in relation to such documents, the Commission is entitled to rely on a general presumption that they are not to be disclosed, even in part, on the basis of the Transparency Regulation. [204]

134. This does not rule out the possibility for an applicant under the Transparency Regulation to demonstrate that a given document is not covered by that general presumption, or that there exists an overriding public interest justifying the disclosure of the document. [205] In normal circumstances, however, third parties, who typically want to have access to documents in the European Commission’s investigation file because of their private interest in the case, are unlikely to be able to demonstrate this. [206]

135. Requests under the Transparency Regulation for access to documents related to the Commission’s antitrust proceedings are dealt with in the first instance by the Directorate-General for Competition and in the second instance by the Secretary-General of the European Commission. [207] The Hearing Officer does not play any role.

2. Third parties can strengthen their procedural position by requesting to be heard as an interested third person

136. Provided that they fulfil the substantive and procedural requirements set out below,  [208] third parties can strengthen their procedural position by requesting to be heard as an interested third person.

2.1 Substantive and procedural requirements to be heard as an interested third person

137. Article 27(3) of Regulation 1/2003 provides that natural or legal persons who “show a sufficient interest” have a right to be heard.  [209]

138. Recital 32 of Regulation 1/2003 clarifies what is meant by a third party having “a sufficient interest,” namely that “[its] interests may be affected by a decision.”

139. Whereas complainants must show that “[their] economic interests have been harmed or are likely to be harmed” as a result of the alleged infringement of Articles 101 or 102 TFEU, [210] interested third persons could either be harmed by the alleged infringement or benefitting from it. Their interest in being heard may thus be either against or in support of the companies under investigation.

140. It would also seem that the sufficient interest does not need to be of an economic nature, even if it most often is. [211]

141. The sufficient interest must be defined in the light of the precise conduct that is the subject of the proceedings at stake, and not in the light of abstract legal arguments that go beyond that conduct. [212] A general interest in the policy choices and legal reasoning which the Commission may develop in a potential decision but not linked to the conduct which is the subject of the proceedings cannot confer a right to be heard. [213]

142. Recital 11 of Regulation 773/2004 indicates that consumer associations that apply to be heard should generally be regarded as having a sufficient interest, where the proceedings concern products or services used by the end-consumer or products or services that constitute a direct input into such products or services. [214]

143. Similarly, business associations have a sufficient interest if their members would individually have a sufficient interest and the association is entitled to represent the interests of its members. [215]

144. There is certainly no requirement that the interested third person can provide useful information for the European Commission’s proceedings. The “sufficient interest” relates only to the interests of the third party that requests to be heard.  [216]

145. Article 5 of Decision 2011/695 empowers the Hearing Officer to decide whether third persons are to be heard, after consulting the Director from DG Competition responsible for the case.

146. Applications to be heard by interested third persons must be submitted in writing, and explain the applicant’s interest in the outcome of the procedure. [217]

147. Applications to be heard can be submitted from the date of the initiation of proceedings and until the European Commission consults the Advisory Committee on the basis of a draft decision. [218]

148. Where the Hearing Officer considers that an applicant has not shown a sufficient interest to be heard, they must inform the applicant in writing of the reasons thereof, and set a time limit for a further written submission. If the applicant responds within the time limit and the written submission does not lead to a different assessment, the Hearing Officer will take a reasoned decision.  [219]

149. If the application to be heard is granted, the Hearing Officer must inform the parties to the proceedings as from the initiation of proceedings of the identities of interested third persons to be heard, unless such disclosure would significantly harm a person or undertaking.  [220] In particular, according to the case law of EU Courts, keeping the identity of third parties confidential is justified where there is a risk that an undertaking holding a dominant position on the market might adopt retaliatory measures against competitors, suppliers or customers that have collaborated in the investigation carried out by the Commission.  [221] There is thus no incompatibility between being heard as an interested third person and remaining anonymous.  [222]

150. On the other hand, nothing prevents interested third persons from making public the fact that their application to be heard has been granted.  [223]

2.2 Procedural rights of interested third persons whose application to be heard has been granted

151. When the application to be heard of the interested third person has been granted by the Hearing Officer, the European Commission must inform the interested third person in writing of the nature and subject matter of the procedure and must set a time limit within which the interested third person may make known its views in writing.  [224]

152. It is for the Directorate-General for Competition to provide the written information on the nature and subject matter of the procedure, and to set the time limit for the interested third person’s written comments.

153. The Directorate-General for Competition has a wide discretion as to how it provides the written information on the nature and subject matter of the procedure. It may do so in the form of a summary document prepared specifically for this purpose. If a statement of objections has been sent, it may also do so by providing the interested third person with a non-confidential version of the statement of objections, but it is not obliged to do so.  [225] If the European Commission has published a detailed press release, which sets out the nature and subject matter of the procedure, the Directorate-General for Competition might simply provide the interested third person with this press release.

154. If the interested third person considers that it has not been (sufficiently) informed in writing of the nature and subject matter of the procedure, it may, after having first raised the issue with the Directorate-General for Competition, make a reasoned request to the Hearing Officer, who will take a reasoned decision on such request.  [226]

155. If the interested third person considers that the time limit to make its views known in writing is too short, it may seek an extension, first from the Directorate-General for Competition, and, if unsuccessful, subsequently from the Hearing Officer. [227]

156. If the interested third person requests so in its written comments, the Hearing Officer may, “where appropriate,” allow the interested third person to express their views also at the oral hearing of the parties to which a statement of objections has been issued.  [228]

157. Several points should be noted:

– First, interested third persons cannot request an oral hearing. They can only request to be allowed to express their views at the oral hearing of the addressees of the statement of objections, which presupposes that at least one of these addressees has requested an oral hearing.

– Second, interested third persons can only request to be allowed to express their views at the oral hearing if they have first requested and been allowed to be heard in writing, and have in their written comments requested the opportunity to participate in the oral hearing.

– Third, even if they have made the request in their written comments, interested third persons have no right to participate at the oral hearing. The Hearing Officer has a discretionary power to decide whether or not it is appropriate to admit an interested third person to the oral hearing.  [229] An important consideration which the Hearing Officer must take into account in making this decision is the contribution which the interested third person can make to the clarification of the relevant facts of the case.  [230] Normally a good indicator for this is the contribution which the interested third person has already made to the Commission’s investigation through written comments and responses to requests for information. Practical considerations may also play a role, such as the fact that the interested third person made its request to be heard relatively late, shortly before the oral hearing. [231]

– Fourth, third parties cannot anonymously participate in the oral hearing. Interested third persons that have requested to remain anonymous,  [232] must thus give up their anonymity if they want to express their views at the oral hearing.  [233]

3. Third parties can further strengthen their procedural position by lodging a complaint

158. Provided that they fulfil the substantive and procedural requirements for becoming a complainant,  [234] third parties can further strengthen their procedural position by lodging a complaint.

159. The possibility for informants to strengthen their procedural position by lodging a complaint has been discussed above in chapter IV “Informing the European Commission about a suspected infringement and triggering an investigation.” [235] The possibility for third parties to strengthen their procedural position by lodging a complaint is however not only available to informants that bring information on a matter which the European Commission is not yet investigating, but is also available to third parties at any point during ongoing investigations and proceedings, until the European Commission has sent its draft final decision to the Advisory Committee. [236]

160. Sometimes a third party which has already made a successful request to be heard as an interested person later lodges a complaint, so as to be benefit from the stronger procedural position which the status of complainant entails.  [237]

161. The procedural position of a complainant is indeed in three respects stronger than that of an interested third person:

– First, except in cases handled under the cartel settlement procedure,  [238] complainants are entitled to a non-confidential version of any statement of objections relating to a matter covered by the complaint,  [239] while interested persons are only entitled to written information on the nature and subject matter of the procedure, which, at the discretion of the Directorate-General for Competition, may or may not be given in the form of a non-confidential version of the statement of objections.  [240]

– Second, because complainants must be “closely associated with the proceedings,”  [241] complainants are most likely to be allowed to express their views at the oral hearing of the addressees of the statement of objections if those addressees request such a hearing. Like for interested third persons, [242] the admission of complainants to be oral hearing requires a request to this effect in the complainants’ written comments and is to be granted by the Hearing Officer “where appropriate.” [243] Given the complainants’ right to be closely associated to the proceedings, their participation in the oral hearing is however much less likely to be found inappropriate than that of interested third persons.  [244]

– Third, as explained above, if the European Commission later decides no longer to act on the matter covered by the complaint, the complainant is entitled to a reasoned decision rejecting its complaint, must be heard in writing before such a decision is taken through a pre-rejection letter, and has a right of access to non-confidential versions of the documents on which the European Commission’s intended rejection of the complaint is based.  [245]

VII. Use of languages

162. According to Article 1 of Regulation 1 determining the languages to be used by the European Union,  [246] the official languages of the European Union and the working languages of the European Commission are Bulgarian, Croatian, Czech, Danish, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish. [247]

163. According to Article 41(4) of the Charter of Fundamental Rights of the European Union, every person may write to the European Commission in any of the EU official languages selected by the sender, and must have an answer from the European Commission in the same language. [248]

164. Third parties can thus inform the European Commission about a suspected infringement, either informally or by lodging a complaint, in any of the EU official languages. [249] Similarly, third parties can provide comments in response to a market test notice, or request to be heard as an interested third person in any of the EU official languages.

165. All subsequent correspondence from the European Commission to the third party must in principle be in the same language as that initially chosen by the third party. For instance, if the European Commission subsequently wants to reject the complaint, [250] both the pre-rejection letter pursuant to Article 7 of Regulation 773/2004 and the decision rejecting the complaint must in principle be in the same language as the complaint.

166. According to Article 3 of Regulation 1, documents which the European Commission sends to a person subject to the jurisdiction of a Member State must be drafted in the language of such State. For instance, if the European Commission addresses a request for information to a third party in Sweden, the request must thus in principle be drafted in Swedish. [251]

167. A party can however waive its language rights, and agree to receive correspondence from the European Commission in another language. [252]

168. According to the case law of the EU Courts, the language rules do not constitute an essential procedural requirement, within the meaning of Article 263 TFEU, the infringement of which necessarily affects the validity of any document addressed by the European Commission to a person in another language. An infringement of the language rules by the European Commission vitiates the procedure only if it gives rise to harmful consequences for that person in the course of the administrative procedure, which can normally be excluded if that person has read and understood the document. [253]

VIII. Confidentiality and use of information

1. Protection of confidential information of third parties

169. Third parties that provide information in the European Commission’s antitrust investigations and proceedings are entitled to protection of their business secrets and other confidential information.  [254]

170. As already mentioned above,  [255] where the European Commission accepts information supplied on a purely voluntary basis, accompanied by a request for confidentiality to protect the informant’s anonymity, it is in principle bound to comply with such a condition. [256] The informant requesting anonymity should, when providing documents, inform the European Commission that it is possible to infer his or her identity as the informant from the documents themselves.  [257]

171. Also when the information is not provided on a purely voluntary basis (for instance, in response to a request for information by decision  [258]), justified specific fears of reprisals by (dominant) companies under investigation entitle third party information providers to confidentiality protection.  [259]

172. More generally, third parties are entitled to protection of their business secrets and any other confidential information that they provide in the course of the European Commission’s investigations and proceedings. [260]

173. In general, [261] for given information to be considered as confidential, it is necessary: (i) that it be known only to a limited number of persons; (ii) that the disclosure of that information be liable to cause serious harm to the person who has provided it or to other parties; and (iii) that the interests liable to be harmed by disclosure be objectively worthy of protection. [262]

174. When providing their written comments on a non-confidential version of the statement of objections, [263] or on a pre-rejection letter, [264] or on the information they have received on the nature and subject matter of the procedure, [265] as well as when they subsequently submit further information in the course of the same procedure, complainants or interested third persons are under an obligation to clearly identify any material which they consider to be confidential, giving reasons, and to provide a separate non-confidential version by the date set by the European Commission for making their views known. [266] If undertakings or associations of undertakings fail to comply with this obligation, the European Commission may assume that the documents or statements concerned do not contain confidential information. [267]

175. In all other situations in which third parties, at least those that are undertakings or associations of undertakings, [268] provide documents or statements, the European Commission may also require them to identify any material which they consider to be confidential, giving reasons, and to provide a separate non-confidential version within a time limit set by the European Commission. [269] Again, if they fail to comply with this obligation, the European Commission may assume that the documents or statements concerned do not contain confidential information. [270]

176. With the exception of the identity of informants from whom the European Commission has accepted information supplied on a purely voluntary basis, accompanied by a request for confidentiality to protect the informant’s anonymity  [271] (and the identity of (non-voluntary) information providers with justified specific fears of reprisals by (dominant) companies under investigation [272]), for which confidentiality protection appears absolute, [273] the protection of confidential information of third parties is not absolute, however.

177. In particular in the context of access to the file by the companies under investigation to whom the European Commission has addressed a statement of objections, [274] and as regards confidential information on the investigation file that is capable of having some (exculpatory or inculpatory) evidential value, there is a need to strike a proportionate balance between the protection of confidentiality, on the one hand, and the rights of the defence and the need to ensure efficient application by the European Commission of EU antitrust rules, on the other hand. [275]

178. Even if third parties are thus not guaranteed absolute protection of their confidential information, they do however benefit from strong procedural safeguards in case the European Commission intends to disclose information for which the third party has claimed confidentiality:

179. Article 8(1) and (2) of Decision 2011/695/EU provide that, where the Commission intends to disclose information which may constitute a business secret or other confidential information of any undertaking or person, the latter shall be informed in writing of this intention and the reasons thereof by the Directorate-General for Competition. A time limit shall be fixed within which the undertaking or person concerned may submit any written comments. Where the undertaking or person concerned objects to the disclosure of the information it may refer the matter to the Hearing Officer. If the Hearing Officer finds that the information may be disclosed because it does not constitute a business secret or other confidential information or because there is an overriding interest in its disclosure that finding shall be stated in a reasoned decision which shall be notified to the undertaking or person concerned. The decision shall specify the date after which the information will be disclosed. This date shall not be less than one week from the date of notification. [276]

180. Article 8(4) of the Decision 2011/695/EU adds that, where appropriate in order to balance the effective exercise of a party’s rights of defence with legitimate interests of confidentiality, the Hearing Officer may decide that parts of the file which are indispensable for the exercise of the party’s rights of defence will be made accessible to the party requesting access in a restricted manner, the details of which shall be determined by the Hearing Officer. Recital 16 of Decision 2011/695/EU further explains that such access in a restricted manner may involve, for example, a limitation of the number or category of persons having access, and a limitation of the use of the information being accessed.  [277] The so-called data room procedure is a type of such restricted access.  [278]

181. The third party the disclosure of whose alleged business secrets or other confidential information the Hearing Officer’s decision allows can immediately bring before the EU General Court an action for annulment against the Hearing Officer’s decision, as well as a request for suspension or other interim measures.  [279]

2. Third parties have no access to business secrets or other confidential information of the undertakings/companies under investigation

182. Third parties are not allowed to have access to business secrets or other confidential information of the undertakings/companies under investigation.  [280]

183. Complainants are therefore only entitled to receive a non-confidential version of any statement of objections, [281] and the information on the nature and subject matter of the procedure to which interested third persons that have shown a sufficient interest are entitled must be similarly stripped of any business secrets or other confidential information of the undertakings/companies under investigation. [282]

184. Contrary to what has been mentioned above about the need to balance the protection of third parties’ right to confidentiality with the defence rights of the companies under investigation and the need to ensure efficient application by the European Commission of EU antitrust rules, [283] there is no balancing involved here. Business secrets or other confidential information of the undertakings/companies under investigation cannot be disclosed to third parties. [284]

185. This asymmetry in the level of protection of business secrets and other confidential information of the undertakings/companies under investigation as compared to those of third parties is justified by the different interests at stake (the rights of the defence of the companies under investigation and the effective enforcement of the EU antitrust rules by the European Commission weighing more heavily than the participation rights of third parties) as well as by the need to avoid “the unacceptable consequence that an undertaking may be inspired to lodge a complaint with the Commission solely in order to gain access to its competitors’ business secrets.”  [285]

3. Restrictions on the use of information obtained by third parties through their participation in the European Commission’s proceedings

186. Article 16a(1) of Regulation 773/2004 provides that any information obtained pursuant to this Regulation can only be used for the purposes of judicial or administrative proceedings for the application of Articles 101 and 102 TFEU.

187. Article 16a(3) of Regulation 773/2004 further provides that information that was prepared by other natural or legal persons specifically for the European Commission’s proceedings and information that the European Commission has drawn up and sent to the parties in the course of its proceedings cannot be used in proceedings before national courts until the European Commission has closed its proceedings against all parties under investigation. [286]