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Competition

PR(02)23: The EFTA Surveillance Authority adopts decision on terms of reference of Hearing Officers in competition proceedings

30.10.2002

The EFTA Surveillance Authority today decided to formalise and clarify the role of Hearing Officers in its antitrust proceedings under the EEA Agreement.  The Authority is fully committed to safeguarding the rights of defence of undertakings and to securing transparency in its decision-making process as regards the application of the EEA competition rules.  Hearing Officers play an important part as guardians of these basic procedural rights.  In carrying out their tasks independently they shall enhance the objectivity and quality of the Authority’s competition proceedings and the resulting decisions.

1.      Position and appointment of the Hearing Officer
The number of formal proceedings initiated by the EFTA Surveillance Authority to date does not justify the appointment of a full time Hearing Officer.  In a separate decision, the Authority has designated a “pool” of two persons from its staff in the Department of Legal and Executive Affairs, Mrs. Bjarnveig Eiríksdóttir and Mrs. Elisabethann Wright. From this “pool” the Authority will appoint a Hearing Officer on an “ad hoc basis”, i.e. in relation to the opening of proceedings in a particular case.

The name of the Hearing Officer in a particular case will normally be made public when the Authority opens formal procedures.

In performing his or her tasks, the Hearing Officer will act independently and report directly to the College Member responsible for Competition.

2.    Procedural rights of the Hearing Officer
The main instrument with which the Hearing Officer exercises influence on a competition proceeding by the EFTA Surveillance Authority is through his or her report on the Hearing and on the draft decision.

The Hearing Officer’s final report on the respect of the procedural rights of the parties will

  • be communicated to the EFTA States and to the European Commission in accordance with the co-operation rules in the EEA Agreement;
  • be attached systematically to the draft decision on the matter submitted to the College of the EFTA Surveillance Authority;
  • be disclosed to the parties and published together with the final decision.

This will give greater visibility and more weight to the position of the Hearing Officer.

3.    Tasks of the Hearing Officer
The role of the Hearing Officer is to ensure that the procedural rights of the parties have been fully respected regarding important issues such as access to the file and the right to be heard, including at an oral hearing, as well as to safeguard the confidentiality of sensitive information during competition proceedings.

The involvement of the Hearing Officer in competition proceedings is primarily related to certain procedural aspects on which his/her report should focus.  However, the Hearing Officer can also make general observations on any matter arising during proceedings.

The adopted framework also allows the Hearing Officer to report on the objectivity of any enquiry conducted by the EFTA Surveillance Authority in order to assess the competition impact of proposed commitments.  Such commitments will often be offered by the parties during proceedings with the aim of addressing competition concerns identified by the EFTA Surveillance Authority.  Thus, the Hearing Officer would monitor the market testing phase of the procedure.

Background information
The competition rules of the EEA Agreement (broadly equivalent to those of the EC Treaty) are enforced across the European Economic Area by the EFTA Surveillance Authority and the European Commission.   The responsibility for handling competition cases under the EEA Agreement is shared between the Authority and the Commission (the so-called “two-pillar” system) in accordance with attribution rules contained in  Articles 56 and 57 of the EEA Agreement.  The Agreement is based on the "one-stop-shop" principle implying that either the Commission or the Authority, but not both, is competent to handle a case.   The Commission and the Authority co-operate in the handling of individual cases which affect both EFTA and EC States.  This co-operation basically involves the exchange of information and consultations.

With a view to securing homogeneous application of the EEA competition rules, the EFTA Surveillance Authority’s decision on terms of reference of Hearing Officers in certain competition proceedings takes into account the European Commission’s Decision of 21 May 2001 on the same matter (OJ L 162, 19.6.2001, p. 21and IP/01/736).

The decision will be published in the EEA Section of the Official Journal of the European Communities and in the EEA Supplement to the Official Journal of the European Communities.

For further information, please contact Amund Utne (Competition and State Aid Directorate, tel.+32 (0)2 286 1850) or Monica Wroldsen (Competition and State Aid Directorate) tel.+32 (0)2 286 1859) or send a request via e-mail: competition@surv.efta.be.

 




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