The Hearing Officer plays a fundamental role in the application of EU competition rules. As a member of the staff of the Commission, his mission is clearly defined in Article 1(2) of his terms of reference: “The Hearing Officer shall ensure the effective exercise of procedural rights throughout competition proceedings before the Commission.”

When the Hearing Officer was introduced in 1982, his role was limited to chairing hearings in antitrust cases and reporting to the Competition Commissioner. However, over the years, thanks to the reforms of 1994, 2001 and, in particular, Decision 2011/695/EU of 2011, its powers have been considerably extended. Today, he is a key actor in the protection of procedural fairness and the right to be heard in procedural proceedings.

Will Wouters and Dorothe Dalheimer are currently the two Hearing Officers sitting on the Commission. They begin their work at the latest when a statement of objections is adopted, and their independence is essential to ensure that the procedural rights of all parties are protected.

But are they powerful enough, or should they have wider powers?

According to Will Wouters, the powers and duties of the Hearing Officer fall into four main categories^[1] : 

Firstly, the Hearing Officer plays a role in direct proceedings by organising and conducting hearings and deciding on the participation of third parties. Second, the Hearing Officer performs an independent review function, allowing parties to raise concerns about possible violations of their procedural rights. Thirdly, the Hearing Officer has decision-making powers, particularly on procedural issues such as time limits, access to the file, and the treatment of confidential information. In addition, they are empowered to make recommendations and submit reports to the Competition Commissioner. Finally, the Hearing Officer “may provide advice to the Competition Commissioner on any matter arising out of any antitrust or merger proceeding, including thus not only procedural but also substantive matters”.

The powers of the Hearing Officer have therefore been strengthened to ensure that he is a figure of trust! But is this enough? Is it time for an improvement on their function?

It can be said that the usefulness of the Hearing Officer has been recognized in practice. Indeed, the powers of these guardians of procedural guarantees have been extended four times since the position was created, each time at the request of businesses and the legal community. Moreover, the Hearing Officer’s decisions are rarely overturned by the EU courts, suggesting a high degree of legal reliability and institutional trust.

However, not everyone agrees on the extent of the Hearing Officer’s role. In the United States, several authors have proposed that the Hearing Officer should have a more substantive function in line with the American administrative law judge. In 2018, Terry Calvani and Jenny Leahy suggested that the Hearing Officer should assess the main points of law and fact, not just the procedural aspects, and include these findings in a final public report^[2]. 

We need to take a step back from these proposals because the US system is very different from that of the EU. Indeed, the EU competition framework already includes several levels of substantive review, by the Commissioner’s office, the Legal Service, and the Chief Economist’s team. Adding a similar task to the Hearing Officer’s function would be irrelevant and risk blurring institutional roles. In fact, substantive scrutiny is often more thorough and diverse in the EU than in any other system.

Furthermore, the assumption that the EU lacks substantive scrutiny simply because the Hearing Officer does not exercise it is incorrect. The tendency of the United States to regard its system as the universal reference does not reflect the complex and well-balanced institutional structure of the EU.

Still, there is always room to improve, and the Hearing Officer’s function could be refined in some areas. Unlike in 2011, there is little interest today in overhauling the role of the Hearing Officer and the discussion focuses more on modest and targeted improvements.

For instance, the role of the Hearing Officer could be strengthened in the field of requests for information. For now, the Hearing Officer’s only have decisional power when it relates to deadlines in the response to requests for information by decision in antitrust cases. However, certain procedural disputes, such as those that arose in the Facebook Ireland v Commission cases in 2020 (T-451/20 R and T-452/20 R), could have been resolved more effectively by the Hearing Officer if he had been granted more extensive decision-making powers. In these cases, the Hearing Officer would reach the same conclusion as the Tribunal, but with less cost and delay. This is an improvement worth considering!

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^[1] Wils Wouter, “The Role of the Hearing Officer in Competition Proceedings Before the European Commission”, World Competition: Law and Economics Review, Vol. 35, No. 3, (2012): 431-456,  https://ssrn.com/abstract=2050478

^[2] Terry Calvani, Jenny Leahy, “A larger role for the hearing officer: a modest proposal”, Journal of Antitrust Enforcement, Volume 6, Issue 2 (2018): 214, https://doi.org/10.1093/jaenfo/jnx021

“Ask a lawyer to name the most basic procedural right, he/she will likely reply: the right of defense” raised Eric Barbier de la Serre and Claire Lavin^[1]. However, the contours of this right have often been debated in Court.

Then, how can businesses properly defend themselves if they do not fully understand the scope or purpose of the investigation? This is where the requirement for a statement of reasons in requests for information (RFIs) plays a major role.

An RFI is essentially a tool used by the Commission to gather evidence during a competition investigation. Under Article 18 of Regulation 1/2003, there are two ways in which the Commission may request information. A simple request is informal and does not compel the company to respond. Adversely, a binding decision is a formal and mandatory request.

Article 18(3) of Regulation 1/2003 requires the Commission to justify binding decisions, specifying the legal basis, purpose, suspicions of infringement, and the time limit for providing the information. Therefore, the statement of reason limits the European Commission’s freedom to request “all necessary information” alongside proportionality, legal professional privilege, privilege against self-incrimination and necessity. This provision gives companies the opportunity to respond properly and allows for judicial review by the European Courts.

The Cement case (C-247/14 P) has clarified an important point. When the European Commission issues a request for information, it must clearly explain why the information is needed and what its purpose is. In this case, the Commission’s requests to cement manufacturers were vague and issued years after inspections had already taken place. The reasoning lacked detail on the alleged infringements and was too general. The Commission did not specify the products or the geographical scope of the alleged infringement. However, requests for information must be properly reasoned, as Article 296 TFEU requires. The Court rightly followed the opinion of Advocate General Wahl, who considered that the Commission’s request was excessively broad, since it covered transactions carried out over a period of ten years in twelve Member States. As Francesco Carloni and Gabriela Da Costa explained, vague requests for information can lead to “fishing expeditions”, as companies are obliged to provide large amounts of information without knowing whether it is really necessary for the investigation^[2]. 

The Cement Case especially highlighted the relevant distinction between the early and later stages of an investigation. Consequently, the statement of reasons for a decision must be considered in context. Initially, the Commission may issue broader RFIs. However, as the investigation advances and more evidence are gathered, the justification for the RFI should be more specific. In this case, the investigation was already two years old, and the Commission had enough information to clearly identify the potential infringements.

As a result, this case set a relevant precedent for future competition investigations. It raised the need for the Commission to be clearer and more specific in its information requests but also demonstrates the relevance of judicial review to ensure fairness for businesses. More generally, the case linked information requests and inspections by stressing the need for clear reasons, as in the inspection decisions. Yet, for Katri Havu, “the CJEU does not appear to try to draw a strong formal distinction between inspection decisions and information request decisions, but to highlight the difference between fact-finding at the very initial stages of an investigation and gathering information significantly later on in an investigation”^[3].

The Court’s reasoning on the minimal clarity required for the statement of reason is welcome. Clarity is essential to assess whether the information was necessary. Besides, the ruling’s implications go beyond this case, as it underlines the limits of the Commission’s power to request information, and the balance required in this field.

In the Qualcomm case handed down on 9 April 2019 (T-371/17), the General Court reaffirmed the Commission’s power to issue information requests after formal proceedings have begun, provided these requests are justified and proportional. Here, it was the case as the contested decision was adequately reasoned. It was confirmed by the CJEU.

Lately, in the Meta case (T-451/20 and T-452/20), Meta questioned the Commission’s request for documents containing specific keywords related to alleged anti-competitive practices. Meta argued that the Commission had not sufficiently explained the purpose of the investigation and denounced the broadness of the request. However, the Court dismissed Meta’s action. More specifically, the Court found that the Commission had clearly described the alleged anti-competitive practices and identified the products and services concerned. As a result, Meta could understand the need for the information requested, and this allowed for judicial review. 

Ultimately, the Court strikes a delicate balance in request for information. While it is prepared to hold the Commission to account where it goes too far and infringes the right of defense, it also provides clear guidance through its case law to ensure that the Commission’s powers are not unduly restricted.

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^[1] Claire Lavin, Eric Barbier de la Serre, « Rights of Defence and competition law: An overview of EU and national case law », e-Competitions Rights of Defence, Art. N° 81215, (2016).

^[2] Francesco Carloni, Gabriela Da Costa, “Judgments in the Cement Case: Requirement for Greater Clarity, Specificity, and Justification of Information Requests from the Commission”, Journal of European Competition Law & Practice, Volume 7, Issue 7 (2016): 459, https://doi.org/10.1093/jeclap/lpw032

^[3] Katri Havu, “Duty to State Reasons and Competition Investigation Information Request Decisions: the ‘Cement Judgments’ in Cases C-247/14 P, C-248/14 P, C-267/14 P and C-268/14 P”, Review of European administrative law (2016): 55.