This presentation by Dorothe Dalheimer, Hearing Officer for Competition Proceedings (European Commission), was made during the Workshop on Procedural Safeguards in Competition Cases held for competition authorities officials on 22 February 2023. More materials on the topic can be found at: https://www.oecd.org/competition/workshop-on-procedural-safeguards-in-competition-enforcement.htm. This presentation was uploaded with the author’s consent.

1. Update on procedural rights and
the role of the Hearing Officer
in EU competition proceedings
OECD - Workshop on Procedural Safeguards in Competition Cases
22 February 2023
Dorothe Dalheimer, Hearing Officer for
competition proceedings
(views expressed are personal and do not engage the European Commission)

2. Deadlines
Overview of Tasks of the Hearing Officers in the Commission’s
Antitrust and Merger proceedings
Oral Hearings Access to file /
confidentiality claims
Reporting and Checking
decisions
Investigation phase
(AT)
Rights of complainants and
interested third persons

3. Oral Hearings
• Right of the parties to which the Commission addressed a statement of
objections (SO) to be heard orally (develop their arguments)
• To be requested in written Reply to SO
• Organised and chaired by a Hearing Officer
• Parties are heard by the Commission (key representatives)
• Right to an oral hearing arises anew every time the Commission issues an
SO, i.e. in the case of a Supplementary SO (SSO)
• No oral hearing following a Letter of Facts

4. • Commission grants access to file after the SO (full access except internal
documents and business secrets/other confidential information)
• Requests for further access to file
• In particular: further access to information claimed to be confidential by
information providers
• Requests to the Hearing Officer may result in:
• Decisions on further access
• Decisions rejecting confidentiality claims
Access to File / Confidentiality

5. • Reporting obligations of the Hearing Officers
• In particular, the HO team checks draft enforcement decisions, to ascertain
that the decision only deals with objections on which the parties have
been able to express their views
• (Obviously) the final decision must not be a copy of the SO – the Commission
may in particular abandon or reduce objections and may rebut arguments of
the parties
Reporting obligations / checking of draft
decisions

6. • Example of Case T-604/18 Google (Android)
• Commission issued two Letters of Facts after the SO
• Procedural mistake : the Commission should have issued an SSO even
though no new objection was raised
• “the letters of facts substantially supplement the substance and scope of the objection relating to
the abusive nature of the portfolio-based RSAs, …
• which was not sufficiently substantiated in the context of the statement of objections” (paragraph
981)
• Main reasoning is case specific
• GC also emphasises benefits of oral hearings in the context of punitive
procedures
Recent developments: Case law

7. • New regimes emerging that will operate alongside Antitrust and Merger
proceedings :
• Regulation 2022/1925 (Digital Markets Act)
• Regulation 2022/2560 (Foreign Subsidies)
• Public consultations on procedural regulations:
• Essential procedural rights inspired from AT/M
• New solutions in the area of access to file
• No oral hearings
• What is the outlook for the role of the Hearing Officers?
Recent Developments: Legislation

8. Thank you
© European Union 2020
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