Replying to a statement of objections

What the statement is

Article 27 of Regulation 1/2003 says that before decisions finding an infringement, ordering interim measures, imposing fines or fixing certain periodic penalty payments, the Commission must give the firms concerned the opportunity of being heard on the matters to which it objects ¹. It may base decisions only on objections on which the parties could comment ¹. Parties have a right of access to the file, subject to business secrets, and it does not extend to internal documents ¹.

Notification of a statement of objections interrupts the limitation period for fines ¹. Fines for an infringement may not exceed 10 per cent of the firm's total turnover in the preceding business year ¹.

Time limits at the Commission

Article 10 of Regulation 773/2004 says the Commission sets a time limit for written replies when it notifies the objections, and need not consider late submissions ². Parties may set out all relevant facts and attach supporting documents ². Article 17 sets the minimums ².

Oral hearings and the hearing officer

Parties may ask in their written reply to develop their arguments at an oral hearing ². A hearing officer conducts it in full independence. Hearings are not public and statements are recorded ². The hearing officer may let parties, complainants, invited persons, Commission services and national authorities ask questions ².

The hearing officer's terms of reference come from a Decision of the Commission President of 13 October 2011 ³. If a firm thinks the reply deadline is too short, it asks the director responsible in due time. If refused, it can refer the matter to the hearing officer before the deadline expires ³. In exceptional cases the officer may suspend the reply period until an access to file dispute is resolved ³. The officer's final report goes to the Commission with the draft decision and is published in the Official Journal with the decision ³.

The UK equivalent

Section 31 of the Competition Act 1998 requires the CMA to give written notice and an opportunity to make representations before a decision after an investigation ⁴. Under Rule 6 of the CMA's Rules the notice must state the facts, objections, proposed action and reasons, and the periods for written representations ⁵. The CMA must give a reasonable opportunity to inspect the file and must offer an oral hearing, chaired by a Procedural Officer ⁵. If the period passes with no written reply, the CMA may proceed ⁵.

Settlement

In EU cartel cases, a party in settlement talks may introduce a settlement submission acknowledging participation and liability ². If the statement of objections reflects it, the party's written reply confirms that within a time limit the Commission sets ². The party then only needs an oral hearing if the statement does not reflect its submission ². Parties in settlement may call on the hearing officer at any stage ³.