Final report of the Hearing Officer in Case 59120 — Color Line

2012/C 180/05

This final report of the Hearing Officer in Case 59120 — Color Line — is submitted pursuant to Article 15 of the EFTA Surveillance Authority Decision No 177/02/COL on the terms of references of Hearing Officers in certain competition proceedings.

The procedure and the draft decision give rise to the following observations.

1.   Introduction to the procedure

On 20 December 2005, Kystlink AS lodged a complaint before the Norwegian Competition Authority concerning harbour agreements entered into by Color Line AS with the municipalities of Strömstad and Sandefjord. The EFTA Surveillance Authority (hereafter ‘the Authority’) was notified of the case on 14 December 2005 by the national competition authority and subsequently the case was taken over by the Authority pursuant to the rules set out in the EFTA network notice (1).

Inspections were carried out at the premises of Color Line AS (hereafter ‘Color Line’), Color Group ASA and O.N. Sunde AS from 4 to 6 April 2006.

2.   The written procedure

2.1.   Statement of objections

A statement of objections (hereafter ‘SO’) was adopted by the Authority on 16 December 2009. The SO was drafted in English but, following a request from Color Line on 17 December 2009, a Norwegian version was prepared and notified to Color Line on 5 February 2010.

Color Line sent its reply to the SO, in Norwegian, on 12 April 2010.

2.2.   Third parties

Two companies requested formal admission to the proceedings as interested third parties. In response to these requests, the Hearing Officers admitted Fjord Line on 9 February 2010 and Bastø Fosen on 18 May 2010. Both third parties received a non-confidential version of the SO and Color Line’s reply to the SO. Both third parties submitted written comments. However, only Bastø Fosen asked to attend the hearing.

2.3.   Access to file

Color Line was granted access to the part of the Authority’s file not containing confidential information on 11 January 2010. After clearing the remaining confidentiality issues, access to the remaining documents was granted by the Competition and State Aid Directorate of the Authority (hereafter ‘the CSA Department’) on 29 January 2010. On 11 March 2010, Color Line sent a reasoned request for further access to file to the Hearing Officers.

The Hearing Officers replied on 26 March 2010, granting full or partial access to most of the requested documents.

An additional reasoned request for access to documents was submitted by Color Line on 21 May 2010. The company requested access to all documents submitted by third parties, as well as the Hearing Officers’ decision to grant third party status to Fjord Line. By letter of 26 May 2010, the Hearing Officers noted that Color Line had already received Fjord Line’s comments to the SO and the reply to the SO on 25 May 2010. The Hearing Officers' also informed Color Line that the remaining correspondence between Fjord Line and the Authority, as well as the decision by the Hearing Officers, did not contain new evidence in the case. Therefore, Color Line had no right to access these documents. Bastø Fosen’s comments to the SO and the reply to the SO were forwarded to Color Line on 4 June 2010 by the CSA Department as they might contain new evidence in the case.

3.   The oral procedure

The oral hearing took place on 14 June 2010. Present during the hearing were the Hearing Officers, representatives from Color Line, the CSA Department, the Legal and Administrative Affairs Department of the Authority and the responsible College Member, as well as representatives from the Commission, the Norwegian and French Competition Authorities and the third party, Bastø Fosen.

The CSA Department outlined its views of the case as set out in the SO. Bastø Fosen also presented its views in a short oral submission. The remaining speaking time was allocated to Color Line, whose representative spoke in Norwegian with a translation in English.

Certain parts of the presentations were closed to the third party, in particular part of the presentation of Color Line’s industrial model, presentation of a customer survey and presentation of economic analysis and success factors for a potential competitor.

Recordings of the hearing were provided to Color Line at its request on 4 May 2011.

4.   Procedure following the hearing

The second Hearing Officer in this case, Ida Hauger, left the Authority in July 2010.

By letter dated 12 January 2011, Color Line requested a state-of-play meeting.

A meeting was held at the Authority’s premises on 15 February 2011.

By e-mail of 6 May 2011, Color Line sent the Authority a position paper setting out its views on the legal issues presented by the Authority in the state-of-play meeting. Color Line presented its paper and its views on the case in a meeting on 11 May 2011 at the Authority’s premises.

5.   The draft decision

The scope of the infringements identified in the draft decision submitted to the Advisory Committee is narrower than in the SO. In addition, the duration of the infringements is shorter and the draft decision is addressed to two undertakings whereas the SO had four addressees.

In the SO, the Authority’s preliminary finding was that the harbour agreements concluded with the municipalities of Strömstad and Sandefjord had the object and effect of preventing, restricting or distorting competition contrary to Article 53(1) of the EEA Agreement and did not satisfy the conditions laid down in Article 53(3) of the EEA Agreement. The Authority also took the preliminary view that Color Line had abused its dominant position on the relevant market. The Authority considered that these infringements had started on 1 January 1994 and were still ongoing. The SO was addressed to Color Line AS, Color Line Transport AS, Color Group ASA and O.N. Sunde AS.

In the draft decision, now addressed to Color Line AS and Color Group AS, the Authority finds that Color Line has infringed Articles 53 and 54 of the EEA Agreement through the long-term exclusive rights it enjoyed pursuant to the harbour agreement contracted with the municipality of Strömstad, from 1 January 1994 until 20 December 2005. With regard to Article 53, the draft decision no longer finds a restriction of competition by object. The draft decision is also addressed to Color Group AS as a result of its decisive influence over its wholly-owned subsidiary Color Line AS from 1 October 1998 until 20 December 2005.

In my opinion, the draft decision only contains objections in respect of which Color Line has been afforded the opportunity of making known its views.

I conclude that Color Line’s right to be heard has been respected in the present case.

6.   Conclusion

I consider that the rights of the addressees to be heard have been duly respected.

(1)  Notice on cooperation within the EFTA Network of Competition Authorities, OJ C 227, 21.9.2006, p. 10 and EEA Supplement to the OJ 47, 21.9.2006, p. 1.