20.10.2011 EN Official Journal of the European Union L 275/29 DECISION OF THE PRESIDENT OF THE EUROPEAN COMMISSION of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (Text with EEA relevance) (2011/695/EU) THE PRESIDENT OF THE EUROPEAN COMMISSION, Having regard to the Treaty on European Union, Having regard to the Treaty on the Functioning of the European Union, Having regard to the Agreement on the European Economic Area, Having regard to the Rules of Procedure of the Commission (1), and in particular Article 22 thereof, Whereas: (1) Under the system for competition law enforcement established under the Treaty on the Functioning of the European Union (hereinafter ‘the Treaty’), the Commission investigates and decides on cases by administrative decision, subject to judicial review by the Court of Justice of the European Union (hereinafter ‘the Court of Justice’). (2) The Commission has to conduct its competition proceedings fairly, impartially and objectively and must ensure respect of the procedural rights of the parties concerned as set out in Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (2), Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (3), Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (4), and Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (5), as well as in the relevant case-law of the Court of Justice. In particular, the right of the parties concerned to be heard before the adoption of any individual decision adversely affecting them is a fundamental right of European Union law recognised by the Charter of Fundamental Rights, and in particular Article 41 thereof (6). (3) In order to ensure the effective exercise of the procedural rights of the parties concerned, other involved parties within the meaning of Article 11(b) of Regulation (EC) No 802/2004 (hereinafter ‘other involved parties’), complainants within the meaning of Article 7(2) of Regulation (EC) No 1/2003 (hereinafter ‘complainants’) and persons other than those referred to in Articles 5 and 11 of Regulation (EC) No 773/2004 and third persons within the meaning of Article 11 of Regulation (EC) No 802/2004 (hereinafter ‘third persons’) involved in competition proceedings, responsibility for safeguarding the observance of such rights should be entrusted to an independent person experienced in competition matters who has the integrity necessary to contribute to the objectivity, transparency and efficiency of those proceedings. (4) The Commission created the function of hearing officer for these purposes in 1982, revised it in Commission Decision 94/810/ECSC, EC of 12 December 1994 on the terms of reference of hearing officers in competition procedures before the Commission (7) and in Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings (8). It is now necessary to clarify and further strengthen the role of the hearing officer and to adapt the terms of reference of the hearing officer in the light of developments in Union competition law. (5) The function of the hearing officer has been generally perceived as an important contribution to the competition proceedings before the Commission due to the independence and expertise that hearing officers have brought to these proceedings. In order to ensure the continued independence of the hearing officer from the Directorate-General for Competition, he or she should be attached, for administrative purposes, to the member of the Commission with special responsibility for competition. (6) The hearing officer should be appointed in accordance with the rules laid down in the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union. In accordance with those rules, consideration may also be given to candidates who are not officials of the Commission. Transparency as regards the appointment, termination of appointment and transfer of hearing officers should be ensured. (7) The Commission may appoint one or more hearing officers and should provide for their supporting staff. Where the hearing officer perceives a conflict of interests in the performance of his or her functions, the hearing officer should cease from acting on a case. If the hearing officer is unable to act, his or her role should be carried out by another hearing officer. (8) The hearing officer should operate as an independent arbiter who seeks to resolve issues affecting the effective exercise of the procedural rights of the parties concerned, other involved parties, complainants or interested third persons where such issues could not be resolved through prior contacts with the Commission services responsible for the conduct of competition proceedings, which must respect these procedural rights. (9) The terms of reference of the hearing officer in competition proceedings should be framed in such a way as to safeguard the effective exercise of procedural rights throughout proceedings before the Commission pursuant to Articles 101 and 102 of the Treaty and Regulation (EC) No 139/2004, in particular the right to be heard. (10) In order to strengthen this role, the hearing officer should be attributed with the function of safeguarding the effective exercise of procedural rights of undertakings and associations of undertakings in the context of the Commission’s powers of investigation under Chapter V of Regulation (EC) No 1/2003, as well as pursuant to Article 14 of Regulation (EC) No 139/2004 which empowers the Commission to impose fines on undertakings and associations of undertakings. The hearing officer should also be attributed with specific functions during this investigative phase in relation to claims for legal professional privilege, the privilege against self-incrimination, deadlines for replying to decisions requesting information pursuant to Article 18(3) of Regulation (EC) No 1/2003, as well as with regard to the right of undertakings and associations of undertakings subject to an investigative measure by the Commission under Chapter V of Regulation (EC) No 1/2003 to be informed of their procedural status, namely whether they are subject to an investigation and, if so, the subject matter and purpose of that investigation. In assessing claims made in relation to privilege against self-incrimination, the hearing officer may consider whether undertakings make clearly unfounded claims for protection merely as a delaying tactic. (11) The hearing officer should be able to facilitate the resolution of claims that a document is covered by legal professional privilege. To this end, if the undertaking or association of undertakings making the claim agrees, the hearing officer will be allowed to examine the document concerned and make an appropriate recommendation, referring to the applicable case-law of the Court of Justice. (12) The hearing officer should be responsible for deciding whether a third person shows a sufficient interest to be heard. Consumer associations that apply to be heard should be generally regarded as having a sufficient interest, where the proceedings concern products or services used by end-consumers or products or services that constitute a direct input into such products or services. (13) The hearing officer should decide whether to admit complainants and interested third persons to the oral hearing, taking into account the contribution they can make to the clarification of the relevant facts of the case. (14) The right of the parties concerned to be heard before a final decision adversely affecting their interests is taken is guaranteed through their right to reply in writing to the preliminary position of the Commission, as set out in the statement of objections and their right to develop their arguments, if they so request, at the oral hearing. In order to exercise these rights effectively, parties to whom a statement of objections has been addressed have the right of access to the Commission’s investigation file. (15) In order to safeguard the effective exercise of the rights of defence of parties to whom a statement of objections has been addressed, the hearing officer should be responsible for ensuring that disputes about access to the file or about the protection of business secrets and other confidential information between those parties and the Commission’s Directorate-General for Competition are resolved. In exceptional circumstances, the hearing officer may suspend the running of the time period in which an addressee of a statement of objections should reply to that statement until a dispute about access to file has been resolved, if the addressee would not be in a position to reply within the deadline granted and an extension would not be an adequate solution at that point in time. (16) In order to safeguard the effective exercise of procedural rights while respecting the legitimate interests of confidentiality, the hearing officer should, where appropriate, be able to order specific measures for access to the Commission’s file. In particular, the hearing officer should have the power to decide that parts of the file are made accessible to the party requesting access in a restricted manner, for example by limiting the number or category of persons having access, and the use of the information being accessed. (17) The hearing officer should be responsible for deciding on requests for the extension of time limits set for the reply to a statement of objections, a supplementary statement of objections or a letter of facts or time limits within which other involved parties, complainants or interested third persons may make comments, in case of disagreement between any such person and the Directorate-General for Competition. (18) The hearing officer should promote the effectiveness of the oral hearing, by, inter alia, taking all appropriate preparatory measures, including the circulation, in due time before the hearing, of a provisional list of participants and a provisional agenda. (19) The oral hearing allows the parties to whom the Commission has addressed a statement of objections and other involved parties to further exercise their right to be heard by developing their arguments orally before the Commission, which should be represented by the Directorate-General for Competition as well as other services that contribute to the further preparation of a decision to be taken by the Commission. It should provide an additional opportunity to ensure that all relevant facts – whether favourable or unfavourable to the parties concerned, including the factual elements relating to the gravity and duration of the alleged infringement – are clarified as much as possible. The oral hearing should also allow the parties to present their arguments as to the matters that may be of importance for the possible imposition of fines. (20) To ensure the effectiveness of oral hearings, the hearing officer may allow the parties to whom a statement of objections has been addressed, other involved parties, complainants, other persons invited to the hearing, the Commission services and the authorities of the Member States to ask questions during the hearing. The oral hearing should not be public so as to guarantee that all participants can express themselves freely. Therefore, information disclosed during the oral hearing should not be used for a purpose other than judicial and/or administrative proceedings for the application of Articles 101 and 102 of the Treaty. Where justified to protect business secrets and other confidential information, the hearing officer should be able to hear persons in a closed session. (21) Parties to the proceedings which offer commitments pursuant to Article 9 of Regulation (EC) No 1/2003, as well as parties which engage in settlement procedures in cartel cases pursuant to Article 10a of Regulation (EC) No 773/2004, should be able to call upon the hearing officer in relation to the effective exercise of their procedural rights. (22) The hearing officer should report on the respect for the effective exercise of procedural rights throughout competition proceedings. Moreover, and separately from his or her reporting function, the hearing officer should also be able to make observations on the further progress and objectivity of the proceedings and thereby contribute to ensuring that competition proceedings are concluded on the basis of a sound assessment of all relevant facts. (23) When disclosing information about natural persons, the hearing officer should have regard, in particular, to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (9). (24) Decision 2001/462/EC, ECSC should be repealed, HAS DECIDED AS FOLLOWS: CHAPTER 1 ROLE, APPOINTMENT AND DUTIES OF THE HEARING OFFICER Article 1 The Hearing Officer 1. There shall be one or more hearing officers for competition proceedings, whose powers and functions are laid down in the present decision. 2. The hearing officer shall safeguard the effective exercise of procedural rights throughout competition proceedings before the Commission for the implementation of Articles 101 and 102 of the Treaty, and under Regulation (EC) No 139/2004 (hereinafter ‘competition proceedings’). Article 2 Appointment, Termination of Appointment and Deputising 1. The Commission shall appoint the hearing officer. The appointment shall be published in the Official Journal of the European Union. Any interruption, termination or transfer of the hearing officer shall be the subject of a reasoned decision of the Commission. That decision shall be published in the Official Journal of the European Union. 2. The hearing officer shall be attached, for administrative purposes, to the member of the Commission with special responsibility for competition (hereinafter ‘the competent member of the Commission’). 3. Where the hearing officer is unable to act, his or her role shall be carried out by another hearing officer. If no hearing officer is able to act, the competent member of the Commission, where appropriate after consultation of the hearing officer, shall designate another competent Commission official, who is not involved in the case in question, to carry out the hearing officer’s duties. 4. In case of an actual or potential conflict of interests, the hearing officer shall refrain from acting on a case. Paragraph 3 shall apply. Article 3 Method of Operation 1. In exercising his or her functions, the hearing officer shall act independently. 2. In exercising his or her functions, the hearing officer shall take account of the need for effective application of the competition rules in accordance with Union legislation in force and the principles laid down by the Court of Justice. 3. In exercising his or her functions, the hearing officer shall have access to any files relating to competition proceedings. 4. The hearing officer shall be kept informed by the director responsible for investigating the case in the Directorate-General for Competition (hereinafter ‘the director responsible’) about the development of the procedure. 5. The hearing officer may present observations on any matter arising out of any Commission competition proceeding to the competent member of the Commission. 6. If the hearing officer makes reasoned recommendations to the competent member of the Commission or takes decisions as foreseen in this decision, the hearing officer shall provide a copy of these documents to the director responsible and the Legal Service of the Commission. 7. Any issue regarding the effective exercise of the procedural rights of the parties concerned, other involved parties within the meaning of Article 11(b) of Regulation (EC) No 802/2004 (hereinafter ‘the other involved parties’), complainants within the meaning of Article 7(2) of Regulation (EC) No 1/2003 (hereinafter ‘complainants’) and interested third persons within the meaning of Article 5 of this Decision involved in such proceedings shall first be raised by those persons with the Directorate-General for Competition. If the issue is not resolved, it may be referred to the hearing officer for independent review. Requests related to a measure for which a time limit applies must be made in due time, within the original time limit. CHAPTER 2 INVESTIGATION Article 4 Procedural rights in the investigation phase 1. The hearing officer shall safeguard the effective exercise of procedural rights which arise in the context of the exercise of the Commission’s powers of investigation under Chapter V of Regulation (EC) No 1/2003 and in proceedings that can result in the imposition of fines pursuant to Article 14 of Regulation (EC) No 139/2004. 2. In particular, the hearing officer shall have the following functions, subject to Article 3(7): (a) The hearing officer may be asked by undertakings or associations of undertakings to examine claims that a document required by the Commission in the exercise of powers conferred on it pursuant to Article 18, 20 or 21 of Regulation (EC) No 1/2003, in inspections pursuant to Article 13 of Regulation (EC) No 139/2004 or in the context of investigatory measures in proceedings that can result in the imposition of fines pursuant to Article 14 of Regulation (EC) No 139/2004 and which was withheld from the Commission is covered by legal professional privilege, within the meaning of the case-law of the Court of Justice. The hearing officer may only review the matter if the undertaking or association of undertakings making the claim consent to the hearing officer viewing the information claimed to be covered by legal professional privilege as well as related documents that the hearing officer considers necessary for his or her review. Without revealing the potentially privileged content of the information, the hearing officer shall communicate to the director responsible and the undertaking or association of undertakings concerned his or her preliminary view, and may take appropriate steps to promote a mutually acceptable resolution. Where no resolution is reached, the hearing officer may formulate a reasoned recommendation to the competent member of the Commission, without revealing the potentially privileged content of the document. The party making the claim shall receive a copy of this recommendation. (b) Where the addressee of a request for information pursuant to Article 18(2) of Regulation (EC) No 1/2003 refuses to reply to a question in such a request invoking the privilege against self-incrimination, as determined by the case-law of the Court of Justice, it may refer the matter, in due time following the receipt of the request, to the hearing officer. In appropriate cases, and having regard to the need to avoid undue delay in proceedings, the hearing officer may make a reasoned recommendation as to whether the privilege against self-incrimination applies and inform the director responsible of the conclusions drawn, to be taken into account in case of any decision taken subsequently pursuant to Article 18(3) of Regulation (EC) No 1/2003. The addressee of the request shall receive a copy of the reasoned recommendation. (c) Where the addressee of a decision requesting information pursuant to Article 18(3) of Regulation (EC) No 1/2003 considers that the time limit imposed for its reply is too short, it may refer the matter to the hearing officer, in due time before the expiry of the original time limit set. The hearing officer shall decide on whether an extension of the time limit should be granted, taking account of the length and complexity of the request for information and the requirements of the investigation. (d) Undertakings or associations of undertakings subject to an investigative measure by the Commission under Chapter V of Regulation (EC) No 1/2003 shall have the right to be informed of their procedural status, namely whether they are subject to an investigation and, if so, the subject matter and purpose of that investigation. If such an undertaking or association of undertakings considers that it has not been properly informed by the Directorate-General for Competition of its procedural status, it may refer the matter to the hearing officer for resolution. The hearing officer shall take a decision that the Directorate-General for Competition will inform the undertaking or association of undertakings that made the request of their procedural status. This decision shall be communicated to the undertaking or association of undertakings that made the request. CHAPTER 3 APPLICATIONS TO BE HEARD Article 5 Interested third persons 1. Applications to be heard from persons other than those referred to in Articles 5 and 11 of Regulation (EC) No 773/2004 and third persons within the meaning of Article 11 of Regulation (EC) No 802/2004 (hereinafter ‘third persons’) shall be made in accordance with Article 13(1) of Regulation (EC) No 773/2004 and Article 16 of Regulation (EC) No 802/2004. Applications shall be submitted in writing and explain the applicant’s interest in the outcome of the procedure. 2. The hearing officer shall decide as to whether third persons are to be heard after consulting the director responsible. In assessing whether a third person shows a sufficient interest, the hearing officer shall take into account whether and to what extent the applicant is sufficiently affected by the conduct which is the subject of the competition proceedings or whether the applicant fulfils the requirements of Article 18(4) of Regulation (EC) No 139/2004. 3. Where the hearing officer considers that an applicant has not shown a sufficient interest to be heard, he or she shall inform the applicant in writing of the reasons thereof. A time limit shall be fixed within which the applicant may make known its views in writing. If the applicant makes known its views in writing within the time limit set by the hearing officer and the written submission does not lead to a different assessment, that finding shall be stated in a reasoned decision which shall be notified to the applicant. 4. The hearing officer shall inform parties to competition proceedings as from the initiation of proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003 or Article 6(1)(c) of Regulation (EC) No 139/2004 of the identities of interested third persons to be heard, unless such disclosure would significantly harm a person or undertaking. Article 6 Right to an oral hearing; participation of complainants and third persons in the oral hearing 1. At the request of parties to whom the Commission has addressed a statement of objections or other involved parties, the hearing officer shall conduct an oral hearing so that such parties can further develop their written submissions. 2. The hearing officer may, where appropriate and after consulting the director responsible, decide to afford complainants and interested third persons within the meaning of Article 5 the opportunity to express their views at the oral hearing of the parties to which a statement of objections has been issued, provided they so request in their written comments. The hearing officer may also invite representatives from competition authorities from third countries to attend the oral hearing as observers in accordance with agreements concluded between the Union and third countries. CHAPTER 4 ACCESS TO FILE, CONFIDENTIALITY AND BUSINESS SECRETS Article 7 Access to File and Access to Documents and Information 1. Where a party which has exercised its right of access to the file has reason to believe that the Commission has in its possession documents which have not been disclosed to it and that those documents are necessary for the proper exercise of the right to be heard, it may make a reasoned request for access to these documents to the hearing officer, subject to Article 3(7). 2. Subject to Article 3(7), other involved parties, complainants and interested third persons within the meaning of Article 5 may make a reasoned request to the hearing officer in the circumstances listed hereafter: (a) Other involved parties who have reason to believe that they have not been informed of the objections addressed to the notifying parties in accordance with Article 13(2) of Regulation (EC) No 802/2004. (b) A complainant who has been informed by the Commission of its intention to reject a complaint pursuant to Article 7(1) of Regulation (EC) No 773/2004 and has reason to believe that the Commission has in its possession documents which have not been disclosed to it and that those documents are necessary for the proper exercise of its rights in accordance with Article 8(1) of Regulation (EC) No 773/2004. (c) A complainant who considers that it has not received a copy of the non-confidential version of the statement of objections in accordance with Article 6(1) of Regulation (EC) No 773/2004 or that the non-confidential version of the statement of objections has not been established in a manner which enables it to exercise its rights effectively, with the exception of cases where the settlement procedure applies. (d) An interested third person within the meaning of Article 5 of this Decision who has reason to believe that it has not been informed of the nature and subject matter of a procedure in accordance with Article 13(1) of Regulation (EC) No 773/2004 and Article 16(1) of Regulation (EC) No 802/2004. The same applies to a complainant in a case to which the settlement procedure applies who has reason to believe that it has not been informed of the nature and subject matter of the procedure in accordance with Article 6(1) of Regulation (EC) No 773/2004. 3. The hearing officer shall take a reasoned decision on a request addressed to him or her under paragraph 1 or 2 and communicate such decision to the person that made the request and to any other person concerned by the procedure. Article 8 Business secrets and other confidential information 1. Where the Commission intends to disclose information which may constitute a business secret or other confidential information of any undertaking or person, the latter shall be informed in writing of this intention and the reasons thereof by the Directorate-General for Competition. A time limit shall be fixed within which the undertaking or person concerned may submit any written comments. 2. Where the undertaking or person concerned objects to the disclosure of the information it may refer the matter to the hearing officer. If the hearing officer finds that the information may be disclosed because it does not constitute a business secret or other confidential information or because there is an overriding interest in its disclosure that finding shall be stated in a reasoned decision which shall be notified to the undertaking or person concerned. The decision shall specify the date after which the information will be disclosed. This date shall not be less than 1 week from the date of notification. 3. Paragraphs 1 and 2 shall apply mutatis mutandis to the disclosure of information by publication in the Official Journal of the European Union. 4. Where appropriate in order to balance the effective exercise of a party’s rights of defence with legitimate interests of confidentiality, the hearing officer may decide that parts of the file which are indispensable for the exercise of the party’s rights of defence will be made accessible to the party requesting access in a restricted manner, the details of which shall be determined by the hearing officer. CHAPTER 5 EXTENSION OF TIME LIMITS Article 9 Requests for extension of time limits 1. If an addressee of a statement of objections considers that the time limit imposed for its reply to the statement of objections is too short, it may seek an extension of that time limit by means of a reasoned request addressed to the director responsible. Such a request must be made in due time before the expiry of the original time limit in proceedings pursuant to Articles 101 and 102 of the Treaty and at least 5 working days before the expiry of the original time limit in proceedings under Regulation (EC) No 139/2004. If such a request is not granted or the addressee of the statement of objections making the request disagrees with the length of the extension granted, it may refer the matter to the hearing officer for review before the expiry of the original time limit. After hearing the director responsible, the hearing officer shall decide on whether an extension of the time limit is necessary to allow the addressee of a statement of objections to exercise its right to be heard effectively, while also having regard to the need to avoid undue delay in proceedings. In proceedings pursuant to Articles 101 and 102 of the Treaty, the hearing officer shall take into account, among others, the following elements: (a) the size and complexity of the file; (b) whether the addressee of the statement of objections making the request has had prior access to information; (c) any other objective obstacles which may be faced by the addressee of the statement of objections making the request in providing its observations. For the purposes of assessing point (a) of the first subparagraph, the number of infringements, the alleged duration of the infringement(s), the size and number of documents and the size and complexity of expert studies may be taken into consideration. 2. If other involved parties, a complainant or an interested third person within the meaning of Article 5 considers that the time limit to make its views known is too short, it may seek an extension of that time limit by means of a reasoned request addressed to the director responsible in due time before the expiry of the original time limit. If such a request is not granted or the other involved party, complainant or interested third person disagrees with this decision, it may refer the matter to the hearing officer for review. After hearing the director responsible, the hearing officer shall decide on whether an extension of the time limit should be granted. CHAPTER 6 THE ORAL HEARING Article 10 Organisation and function 1. The hearing officer shall organise and conduct the hearings provided for in the provisions implementing Articles 101 and 102 of the Treaty and Regulation (EC) No 139/2004. 2. The oral hearing shall be conducted by the hearing officer in full independence. 3. The hearing officer shall ensure that the hearing is properly conducted and shall contribute to the objectivity of the hearing itself and of any decision taken subsequently. 4. The hearing officer shall ensure that the oral hearing provides addressees of the statement of objections, other involved parties, as well as complainants and interested third persons within the meaning of Article 5 which have been admitted to the oral hearing, with sufficient opportunity to develop their views as to the preliminary findings of the Commission. Article 11 Preparation of the oral hearing 1. The hearing officer shall be responsible for the preparation of the oral hearing and shall take all appropriate measures in that regard. In order to ensure the proper preparation of the oral hearing, the hearing officer may, after consulting the director responsible, supply in advance to the persons invited to the hearing a list of questions on which they are invited to make known their views. The hearing officer may also indicate to the persons invited to the hearing the focal areas for debate, having regard, in particular, to the facts and issues that the addressees of a statement of objections who have requested an oral hearing want to raise. 2. For this purpose, after consulting the director responsible, the hearing officer may hold a meeting with the persons invited to the hearing and, where appropriate, the Commission services, in order to prepare for the hearing itself. 3. The hearing officer may also ask for prior written notification of the essential contents of the intended statements of persons invited to the hearing. 4. The hearing officer may set a time limit for all persons invited to the oral hearing to provide a list of participants who will attend on their behalf. The hearing officer shall make this list available to all persons invited to the oral hearing in due time before the date of the hearing. Article 12 Timing and conduct 1. After consulting the director responsible, the hearing officer shall determine the date, the duration and the place of the hearing. Where a postponement is requested, the hearing officer shall decide whether or not to allow it. 2. The hearing officer shall decide whether new documents should be admitted during the hearing and which persons should be heard on behalf of a party. 3. The hearing officer may allow the parties to whom a statement of objections has been addressed, other involved parties, complainants, other persons invited to the hearing, the Commission services and the authorities of the Member States to ask questions during the hearing. To the extent that, exceptionally, a question cannot be answered in whole or in part at the oral hearing, the hearing officer may allow the reply to be given in writing within a set time limit. Such written reply shall be distributed to all participants in the oral hearing, unless the hearing officer decides otherwise in order to protect the rights of defence of an addressee of a statement of objections or the business secrets or other confidential information of any person. 4. Where required by the need to ensure the right to be heard, the hearing officer may, after consulting the director responsible, afford the parties concerned, other involved parties, complainants or interested third persons within the meaning of Article 5 the opportunity to submit further written comments after the oral hearing. The hearing officer shall fix a date by which such submissions may be made. The Commission shall not be obliged to take into account written comments received after that date. Article 13 Protection of business secrets and confidentiality at the oral hearing Each person shall normally be heard in the presence of all other persons invited to attend the oral hearing. The hearing officer may also decide to hear persons separately in a closed session, having regard to their legitimate interest in the protection of their business secrets and other confidential information. CHAPTER 7 INTERIM REPORT AND RIGHT TO MAKE OBSERVATIONS Article 14 Interim report and observations 1. The hearing officer shall submit an interim report to the competent member of the Commission on the hearing and the conclusions he or she draws with regard to the respect for the effective exercise of procedural rights. The observations in this report shall concern procedural issues including the following: (a) disclosure of documents and access to the file; (b) time limits for replying to the statement of objections; (c) the observance of the right to be heard; (d) the proper conduct of the oral hearing. A copy of the report shall be given to the Director-General for Competition, to the director responsible and to the other competent services of the Commission. 2. In addition to, and separately from, the report referred to in paragraph 1, the hearing officer may make observations on the further progress and impartiality of the proceedings. In so doing, the hearing officer shall seek to ensure in particular that, in the preparation of draft Commission decisions, due account is taken of all the relevant facts, whether favourable or unfavourable to the parties concerned, including the factual elements relevant to the gravity and duration of any infringement. Such observations may relate to, inter alia, the need for further information, the withdrawal of certain objections, the formulation of further objections or suggestions for further investigative measures pursuant to Chapter V of Regulation (EC) No 1/2003. The Director-General for Competition, the director responsible and the Legal Service shall be informed of such observations. CHAPTER 8 COMMITMENTS AND SETTLEMENTS Article 15 Commitments and settlements 1. Parties to the proceedings which offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment pursuant to Article 9 of Regulation (EC) No 1/2003 may call upon the hearing officer at any stage in the procedure pursuant to Article 9, in order to ensure the effective exercise of their procedural rights. 2. Parties to proceedings in cartel cases which engage in settlement discussions pursuant to Article 10a of Regulation (EC) No 773/2004 may call upon the hearing officer at any stage during the settlement procedure in order to ensure the effective exercise of their procedural rights. CHAPTER 9 FINAL REPORT Article 16 Content and transmission prior to the adoption of a decision 1. The hearing officer shall, on the basis of the draft decision to be submitted to the Advisory Committee in the case in question, prepare a final report in writing on the respect for the effective exercise of procedural rights, as referred to in Article 14(1), at any stage of the proceedings. That report will also consider whether the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views. 2. The final report shall be submitted to the competent member of the Commission, the Director-General for Competition, the director responsible and the other competent services of the Commission. It shall be communicated to the competent authorities of the Member States and, in accordance with the provisions on cooperation laid down in Protocols 23 and 24 of the EEA Agreement, to the EFTA Surveillance Authority. Article 17 Submission to the Commission and publication 1. The hearing officer’s final report shall be presented to the Commission together with the draft decision submitted to it, in order to ensure that, when it reaches a decision on an individual case, the Commission is fully apprised of all relevant information as to the course of the procedure and that the effective exercise of procedural rights has been respected throughout the proceedings. 2. The final report may be modified by the hearing officer in the light of any amendments to the draft decision prior to its adoption by the Commission. 3. The Commission shall communicate the hearing officer’s final report, together with the decision, to the addressees of the decision. It shall publish the hearing officer’s final report in the Official Journal of the European Union, together with the decision, having regard to the legitimate interest of undertakings in the protection of their business secrets. CHAPTER 10 FINAL PROVISIONS Article 18 Repeal and transitional provision 1. Decision 2001/462/EC, ECSC is repealed. 2. Procedural steps already taken under Decision 2001/462/EC, ECSC shall continue to have effect. In relation to investigatory measures that were taken before the entry into force of this Decision, the hearing officer may decline to exercise his or her powers pursuant to Article 4. In cases where the initiation of proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003 or the initiation of proceedings pursuant to Article 6(1)(c) of Regulation (EC) No 139/2004 took place before the entry into force of the present Decision, the interim report pursuant to Article 14 of the present Decision and the final report pursuant to Article 16 shall not cover the investigation phase, unless the hearing officer decides otherwise. Article 19 Entry into force This Decision shall enter into force on the day following its publication in the Official Journal of the European Union. Done at Brussels, 13 October 2011. For the Commission The President José Manuel BARROSO (1) OJ L 308, 8.12.2000, p. 26. (2) OJ L 1, 4.1.2003, p. 1. (3) OJ L 24, 29.1.2004, p. 1. (4) OJ L 123, 27.4.2004, p. 18. (5) OJ L 133, 30.4.2004, p. 1. (6) OJ C 303, 14.12.2007, p. 1. (7) OJ L 330, 21.12.1994, p. 67. (8) OJ L 162, 19.6.2001, p. 21. (9) OJ L 8, 12.1.2001, p. 1.

Summary: Competition proceedings — The role of the hearing officer Competition proceedings — The role of the hearing officer SUMMARY OF: Decision 2011/695/EU — on the function and terms of reference of the hearing officer in certain competition proceedings WHAT IS THE AIM OF THE DECISION? It sets out the role of the hearing officer (HO) in EU competition proceedings. KEY POINTS The decision sets out the powers and functions of the hearing officers. They are appointed by the European Commission and are linked, for administrative purposes, to the Commissioner responsible for competition policy. They must act independently in carrying out their role. Role HOs organise and conduct oral hearings in antitrust and merger proceedings. They may act as independent arbiter when a dispute arises over procedural rights between parties and the Commission’s Directorate-General (DG) for Competition. They decide on applications to be heard by third parties in competition proceedings. The main tasks of the HO are to: to ensure the effective exercise of procedural rights throughout proceedings including commitments and cartel* settlement procedures; to ensure the right to be heard; to deal with specific issues raised during the investigative phase of Commission proceedings, including: claims for legal professional privilegethe privilege against self-incriminationdeadlines for replying to decisions requiring informationthe right of companies and associations of companies to be informed of their procedural status; to ensure that the right to access the file and the companies’ legitimate interests in confidentiality are respected; to report on the outcome of the hearing and on the respect for the effective exercise of procedural rights; and to present, where appropriate, observations to the Competition Commissioner on any matter arising out of individual competition proceedings. FROM WHEN DOES THE DECISION APPLY? It has applied since 21 October 2011. BACKGROUND For more information, see: Hearing officers (European Commission). KEY TERMS Cartel: a group of 2 or more firms who try to restrict competition by price-fixing, limiting supply, or other restrictive practices in order to control selling prices. MAIN DOCUMENT Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, pp. 29-37) RELATED DOCUMENTS Consolidated version of the Treaty on the Functioning of the European Union — Part Three — Union policies and internal actions — Title VII — Common rules on competition, taxation and approximation of laws — Chapter 1 — Rules on competition — Section 1 — Rules applying to undertakings — Article 101 (ex Article 81 TEC) (OJ C 202, 7.6.2016, pp. 88-89) Consolidated version of the Treaty on the Functioning of the European Union — Part Three — Union policies and internal actions — Title VII — Common rules on competition, taxation and approximation of laws — Chapter 1 — Rules on competition — Section 1 — Rules applying to undertakings — Article 102 (ex Article 82 TEC) (OJ C 202, 7.6.2016, p. 89) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, pp. 1-22) Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ L 133, 30.4.2004, pp. 1-39) Successive amendments to Regulation(EC) No 802/2004 have been incorporated into the original text. This consolidated version is of documentary value only. Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, pp. 18-24) See consolidated version. Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, pp. 1-25) See consolidated version. Rules of Procedure of the Commission (OJ L 308, 8.12.2000, pp. 26-34) See consolidated version. last update 15.05.2020


30.11.2013 EN Official Journal of the European Union L 320/34 COUNCIL DECISION 2013/698/CFSP of 25 November 2013 in support of a global reporting mechanism on illicit small arms and light weapons and other illicit conventional weapons and ammunition to reduce the risk of their illicit trade THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on European Union, and in particular Articles 26(2) and 31(1) thereof, Having regard to the proposal from the High Representative of the Union for Foreign Affairs and Security Policy, Whereas: (1) On 13 December 2003, the European Council adopted a European Security Strategy identifying five key challenges to be faced by the Union: terrorism, the proliferation of weapons of mass destruction, regional conflicts, State failure and organised crime. The consequences of the illicit manufacture, transfer and circulation of conventional weapons, including small arms and light weapons (hereinafter referred to as ‘SALW’), and their excessive accumulation and uncontrolled spread are central to four of these five challenges. They fuel insecurity in sub-Saharan Africa, the Middle East and many other regions of the world, exacerbating conflict and undermining post-conflict peace building, thus posing a serious threat to peace and security. (2) On 15 and 16 December 2005, the Council adopted the EU Strategy to combat the illicit accumulation and trafficking of SALW and their ammunition (hereinafter referred to as ‘EU SALW Strategy’), which sets the guidelines for EU action in the field of SALW. That Strategy identifies Africa as the continent most affected by the illicit accumulation and spread of SALW. It also acknowledges that the problem of transfers of SALW to sub-Saharan Africa cannot be isolated from that of the sources of the transfers and states that particular attention should be paid to the ways and means by which SALW are disseminated in Africa, including illegal brokering and transport. (3) The EU SALW Strategy also asserts that the Union should strengthen and support the machinery for sanctions monitoring and support the strengthening of export controls as well as the promotion of Council Common Position 2008/944/CFSP (1) by, inter alia, promoting measures to improve transparency. (4) With the United Nations Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in SALW in All Its Aspects (hereinafter referred to as ‘UN Programme of Action’), adopted on 20 July 2001, all UN Member States have undertaken to prevent illicit trafficking in SALW, or their diversion to unauthorised recipients and, in particular, to take into account the risk of diversion of SALW into the illegal trade when assessing applications for export authorisations. (5) On 8 December 2005, the United Nations General Assembly adopted an International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit SALW. (6) The 2007 Joint Africa-EU Strategic Partnership defines the prevention of the illicit trade in and excessive accumulation of SALW as an area for action through enhancing capacity, networking, cooperation and exchange of information. (7) At the 2012 Second Review Conference on the UN Programme of Action, all UN Member States reaffirmed their commitment to prevent illicit trafficking in SALW, including their diversion to unauthorised recipients, as well as their commitments contained in the UN Programme of Action relating to the assessment of applications for export authorisations. (8) On 2 April 2013, the General Assembly of the United Nations adopted the text of the Arms Trade Treaty (ATT). The objective of the Treaty is to establish the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms, to prevent and eradicate the illicit trade in conventional arms and to prevent their diversion. The Union should support all UN Member States in implementing effective arms transfer controls in order to ensure that the ATT, upon its entry into force, is as effective as possible, in particular as regards the implementation of Article 11 thereof. (9) The Union therefore wishes to finance a global reporting mechanism on illicit SALW and other illicit conventional weapons and ammunition to reduce the risk of their illicit trade in order to contribute to the achievement of the goals described above, HAS ADOPTED THIS DECISION: Article 1 With a view to the implementation of the EU SALW Strategy and the promotion of peace and security, the project activities to be supported by the Union shall have the following specific objectives: — creation of an accessible and user-friendly global information management system on diverted or trafficked SALW and other diverted or trafficked conventional weapons and ammunition (‘iTrace’) in order to provide policy-makers, conventional arms control experts and conventional arms export control officers with relevant information and enable them to develop effective, evidence-based strategies and projects against the illicit spread of SALW and of other conventional weapons and ammunition, — conducting in-field research into SALW and other conventional weapons and ammunition circulating in conflict-affected areas and uploading all collected evidence onto the information management system, — centralising existing policy-relevant documentation on transfers of SALW and of other conventional weapons and ammunition in the global information management system, including national arms export reports, country reports to the UN Register of Conventional Arms and the UN Programme of Action on the Illicit Trade in SALW, the texts of national, regional and international instruments, and reports of illicit SALW and other illicit conventional weapons and ammunition transfers compiled by UN sanctions monitoring groups, civil society organisations and the international news media, — increasing awareness by outreach on the findings of the project, promoting the purpose and available functions of iTrace to international and national policy makers, conventional arms control experts and arms export licensing authorities, and enhancing international capacity to monitor the illicit spread of SALW and of other conventional weapons and ammunition as well as to assist policy makers in identifying priority areas for international assistance and cooperation and to reduce the risk of diversion of SALW and of other conventional weapons and ammunition. Outreach initiatives will also be designed to coordinate information sharing and build sustainable partnerships with individuals and organisations capable of generating information that can be uploaded onto the iTrace system, — providing key policy issue reports, drawn from the data generated by field investigations and presented on the iTrace system, about specific areas deserving international attention, including major trafficking patterns of SALW and other conventional weapons and ammunition, and the regional distribution of trafficked weapons and ammunition. The Union shall finance this project, a detailed description of which is set out in the Annex to this Decision. Article 2 1. The High Representative of the Union for Foreign Affairs and Security Policy (‘HR’) shall be responsible for implementing this Decision. 2. The technical implementation of the project referred to in Article 1 shall be carried out by Conflict Armament Research Ltd (‘CAR’). 3. CAR shall perform its tasks under the responsibility of the HR. For this purpose, the HR shall enter into the necessary arrangements with CAR. Article 3 1. The financial reference amount for the implementation of the project referred to in Article 1 shall be EUR 2 320 000. The total estimated budget of the overall project shall be EUR 2 416 667, which shall be provided through co-financing by CAR. 2. The expenditure financed by the amount set out in paragraph 1 shall be managed in accordance with the procedures and rules applicable to the general budget of the Union. 3. The Commission shall supervise the proper management of the financial reference amount referred to in paragraph 1. For this purpose, it shall conclude the necessary agreement with CAR. The agreement shall stipulate that CAR has to ensure the visibility of the Union’s contribution, appropriate to its size. 4. The Commission shall endeavour to conclude the agreement referred to in paragraph 3 as soon as possible after the entry into force of this Decision. It shall inform the Council of any difficulties in that process and of the date of conclusion of that agreement. Article 4 1. The HR shall report to the Council on the implementation of this Decision on the basis of regular quarterly reports prepared by CAR. These reports shall form the basis of the evaluation carried out by the Council. 2. The Commission shall report on the financial aspects of the project referred to in Article 1. Article 5 1. This Decision shall enter into force on the date of its adoption. 2. This Decision shall expire 24 months after the date of conclusion of the agreement referred to in Article 3(3). However, it shall expire six months after the date of its entry into force if no agreement has been concluded within that period. Done at Brussels, 25 November 2013. For the Council The President D. PAVALKIS (1) Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment (OJ L 335, 13.12.2008, p. 99). ANNEX iTrace Global Reporting Mechanism on SALW and other Conventional Arms and Ammunition 1. Background and rationale for CFSP support 1.1. This Decision builds on successive Council Decisions to combat the destabilising impact of the diversion and trafficking of SALW and of other conventional weapons. The illicit proliferation of SALW and of other conventional weapons and ammunition is a major factor undermining State stability and exacerbating conflicts, which poses a serious threat to peace and security. As stated in the EU SALW Strategy, Africa remains the continent most affected by the impact of internal conflicts, which are aggravated by the destabilising influx of SALW. The sheer number of African peacekeeping operations and arms embargos clearly illustrates the scale of the threat posed to African States by the illicit accumulation and spread of SALW and other conventional weapons. Other regions of the world, including certain parts of Latin and Central America, Central and Eastern Asia, the Balkans and the Middle East are similarly affected by illicit SALW and other illicit conventional weapons proliferation. The international community currently lacks vital monitoring and diagnostic capacity in the field of combating illicit SALW and other illicit conventional weapons proliferation. This stems from three linked factors. Firstly, most conventional weapons trafficking takes place via land and in conflict-affected regions where on-the-ground monitoring is scarce. Secondly, existing monitoring capacity is weakly connected with UN sanctions monitoring groups, peacekeeping missions and non-governmental organisations operating in relative isolation from one another, and the available information from them is fragmented. Thirdly, limited and uncoordinated monitoring fails to provide policy makers with the information necessary to formulate effective counter-proliferation policies. This Decision aims to provide policy makers, arms control experts and arms export control officers with systematically compiled, relevant information, which will enable them to develop effective, evidence-based counter-proliferation strategies against the illicit spread of SALW and of other conventional weapons and their ammunition in order to improve international and regional security. It will thus support them to combine a successful reactive strategy with adequate preventive action to tackle illegal supply and demand, and to ensure effective conventional arms control in third countries. 1.2. This Decision provides for the creation of a publicly accessible online system, which will track illicit SALW and other illicit conventional weapons and ammunition, plotting specific weapon types, suppliers, transfer vectors and illegal recipients (‘iTrace’). Focused on conflict-affected regions, iTrace will serve as a global reporting mechanism that will enable national governments to monitor trafficking in SALW and in other conventional weapons and ammunition and diagnose cases of diversion. It will be the first global mechanism to systematically monitor the trafficking of SALW and of other conventional weapons and ammunition, and thus assist in identifying adequate measures to reduce the risk of their diversion and trafficking. Once the Arms Trade Treaty (ATT) has entered into force, it will also help monitor the implementation of the ATT, provide comprehensive information in support of ATT implementation reviews and strengthen the capacity of national governments to anticipate the impact of arms export licensing decisions. This Decision provides for the adaptation of sophisticated information management software, the development of a fully searchable online portal to map illicit arms transfers geospatially, and a programme of field investigations which will populate iTrace with real-time evidence of illicit arms transfers. The decision also provides for the review and verification of existing evidence on arms trafficking which will be uploaded onto iTrace. 2. Overall objectives The Action described below will support the international community in combating the destabilising impact of the diversion and trafficking of SALW and of other conventional arms and ammunition. It will provide policy makers, arms control experts and arms export control officers with relevant information, which will enable them to develop effective, evidence-based counter-proliferation strategies against the illicit spread of SALW and of other conventional weapons and ammunition in order to improve international and regional security. Specifically, the Action will provide: (a) concrete information on the trafficking of SALW and of other conventional weapons required to monitor more effectively the implementation of the UN Programme of Action on the Illicit Trade in SALW; (b) concrete information to strengthen the implementation of the International Tracing Instrument; (c) concrete information to track major routes and entities involved in the supply of SALW and of other conventional weapons and ammunition into conflict-affected regions or to international terrorist organisations and to provide evidence of groups and individuals engaged in illicit trade, in support of national legal proceedings; (d) the possibility of enhancing cooperation between relevant UN organs, missions and other international organisations, in the field of tracing SALW and other conventional weapons, and of providing information directly in support of existing monitoring mechanisms, including INTERPOL iARMS; (e) relevant information to identify priority areas for international cooperation and assistance to combat effectively the diversion and trafficking of SALW and of other conventional weapons and ammunition, such as funding for projects with regard to stockpile security and/or border management; (f) a mechanism to assist in monitoring the implementation of the ATT upon its entry into force, specifically to detect the diversion of transferred conventional weapons as well as to assist Governments in appraising the risk of diversion prior to the export of conventional arms, specifically the risk of diversion within the buyer country or re-export under undesirable conditions. 3. Long-term project sustainability and outcomes The Action will establish a durable framework for the sustained monitoring of the illicit spread of SALW and of other conventional weapons and ammunition. It is expected to enhance fundamentally existing arms-related information and to support significantly the targeted development of effective conventional arms control and arms export control policies. Specifically, the project will: (a) develop an information management system that will ensure long-term (minimum 10 years) collection and analysis of illicit conventional weapons data; (b) provide conventional arms control policy makers and experts with a tool to define more effective strategies and priority areas for assistance and cooperation (for example, by identifying sub-regional or regional cooperation, coordination and information-sharing mechanisms that need to be established or strengthened, by identifying insecure national stockpiles, illegal transfer routes, weak border controls, and insufficient law enforcement capacities); (c) have the in-built flexibility to generate policy relevant information, regardless of rapidly changing policy requirements; (d) substantially increase the efficacy of international arms monitoring organisations and individuals by providing an information sharing mechanism of continually expanding scope. 4. Description of Action 4.1. Project 1: Creation of the iTrace global arms tracking information management system and online mapping portal 4.1.1. Project objective The project will develop the software necessary to process, validate and map information on diverted or trafficked SALW and other conventional weapons and ammunition. The Dfuze Information Management System, which is already in service with several national police and intelligence services, will be adapted to process weapon-specific information. The system also offers organisational network analysis for the purposes of monitoring the weapons trafficking activities of terrorist groups and criminal organisations, including financial linkages. The Dfuze system’s geospatial mapping functions will be extensively revised to provide iTrace’s searchable, public access, online mapping portal and associated download functions. 4.1.2. Project activities The following activities will be undertaken in the framework of this project: (a) the acquisition of server, computing and network infrastructure required to run the iTrace global SALW and other conventional weapons and ammunition tracking information management system and online mapping portal; (b) the purchase and revision of the Dfuze Information Management System, specifically the re-categorisation of data entry fields and creation of iTrace’s online mapping portal. 4.1.3. Project results The project will: (a) allow any online user to browse a particular location, country, region or continent of the world; (b) identify and deliver visual evidence of diverted or trafficked SALW and other conventional weapons and ammunition in that location, country, region or continent; (c) plot dates of transfer, illicit supply routes and traffickers involved for any one item (among thousands) of trafficked SALW and other conventional weapons and ammunition on an online world map; (d) automatically retrieve similar cases (SALW and other conventional weapons or ammunition of the same type, country of manufacture or production series) and plot these items, and their locations, on an online world map; (e) identify and map linkages between types of diverted or trafficked SALW and other conventional weapons and ammunition, or international trafficking organisations; (f) generate comprehensive reports (for example the scale of diversion in a given country or the origin of diverted conventional weapons), which will be delivered in PDF format; (g) host, by country and globally, existing policy-relevant documentation on transfers of SALW and of other conventional weapons and ammunition, including national arms export reports, country reports to the UN Register of Conventional Arms and the UN Programme of Action on the Illicit Trade in SALW, the text of relevant national, regional and international instruments; and reports of illicit SALW and other illicit conventional weapons and ammunition transfers compiled by UN sanctions monitoring groups, civil society organisations and the international news media; (h) link seamlessly to INTERPOL iARMS, which will enable INTERPOL to cross-compare crime weapons in the iARMS system with iTrace-generated information on conflict weapons; (i) produce risk assessment reports, of predefined format, to support conventional arms control experts in identifying priority areas for improvement, assistance and cooperation, and to assist national arms export licensing authorities in recognising concrete diversion risks. 4.1.4. Project implementation indicators The project will establish a free, public access, online mapping system, with no restrictions on potential beneficiaries. 4.1.5. Project beneficiaries Once populated (see Sections 4.2 and 4.3), iTrace will provide comprehensive information explicitly targeted at, but not limited to national arms control policy makers, arms export licensing agencies, regional and international organisations (including UN sanctions monitoring groups, UN peacekeeping missions, United Nations Office on Drugs and Crime (UNODC), United Nations Office for Disarmament Affairs (UNODA) and INTERPOL), non-governmental research organisations (including Bonn International Center for Conversion (BICC), Group for Research and Information on Peace (GRIP), Stockholm International Peace Research Institute (SIPRI), and Small Arms Survey), advocacy organisations (including Amnesty International and Human Rights Watch) and the international news media. 4.2. Project 2: Field investigations and retrospective research required to populate the iTrace system with real-time documentary evidence of the diversion and trafficking of SALW and of other conventional weapons and ammunition, and other relevant information. 4.2.1. Project objective The project will conduct in-field research into SALW and other conventional weapons and ammunition circulating in conflict-affected areas. The project is a pilot initiative, which aims to confirm the utility of the iTrace system by generating up-to-date information on the diversion and trafficking of SALW and of other conventional weapons and ammunition in sub-Saharan rim countries. It will encompass, within its scope, several countries of particular concern to EU Member States, including, for instance, the Central African Republic, Libya, Mali, Niger, South Sudan, Sudan and Somalia. In addition, the project will carry out retrospective research to populate the iTrace system with verified, existing information on relevant transfers gathered from organisations other than CAR. 4.2.2. Project activities The following activities will be undertaken in the framework of this project: (a) the deployment of qualified arms experts to conduct in-field analysis of illicit SALW and other illicit conventional weapons, ammunition and related materiel recovered from armed conflicts in States of the sub-Saharan rim; (b) the analysis, review and verification of documented evidence on illicit SALW and other illicit conventional weapons, ammunition and their users, including, inter alia, photographs of weapons, their component parts and internal and external markings, packaging; associated shipping documentation and the results of field investigations (users, supplies and transfer routes); (c) the review and verification of recent historical evidence on relevant transfers of SALW and of other conventional weapons and ammunition gathered by organisations other than CAR, including reports by UN sanctions monitoring groups, civil society organisations, and the international news media; (d) the uploading of all collected and reviewed evidence onto the iTrace information management system and online mapping portal; (e) the identification and support of local partners to ensure sustained data collection in support of iTrace throughout the duration of the proposed Action and beyond; (f) the liaison with EU Governments to predefine national points of contact, and a coordination mechanism, in order to clarify the scope of CAR’s investigations, and alleviate possible conflicts of interest, in advance of its investigations. The project will be implemented incrementally over the full two-year iTrace project period. 4.2.3. Project results The project will: (a) document, in situ, the physical evidence of diverted or trafficked SALW and other conventional weapons and ammunition in conflict-affected regions of the sub-Saharan rim; (b) verify and develop illicit trafficking cases from evidence gathered by CAR, and organisations other than CAR, on diverted or trafficked SALW and other conventional weapons and ammunition across all regions; (c) provide concrete visual evidence of diverted or trafficked SALW and other conventional weapons and ammunition, including photographs of items, serial numbers, factory marks, boxes, packing lists, shipping documents and end-user certification; (d) generate textual accounts of illicit activity, including trafficking routes, actors involved in diversion or illicit transfer and assessments of contributing factors (including ineffective stockpile management and security and deliberate, state-orchestrated illicit supply networks); (e) upload the aforementioned evidence onto the iTrace information management system and online mapping portal for full public dissemination. 4.2.4. Project implementation indicators Up to 30 field deployments (including extended deployment where required) throughout the two-year period to generate evidence to upload onto the iTrace information management system and online mapping portal. 4.2.5. Project beneficiaries Please see Section 4.1.5 above for a full list of beneficiaries, which is identical for all projects listed within this decision. 4.3. Project 3: Stakeholder outreach and international coordination 4.3.1. Project objective The project will showcase the benefits of iTrace to international and national policy makers, conventional arms control experts and arms export licensing authorities. Outreach initiatives will also be designed to coordinate information sharing and build sustainable partnerships with individuals and organisations capable of generating information that can be uploaded onto the iTrace system. 4.3.2. Project activities The following activities will be undertaken in the framework of this project: (a) CAR staff presentations to two, Brussels-based conferences. Staff presentations will be designed to showcase iTrace, with an emphasis on 1) its concrete benefits for assisting in monitoring the implementation of the UN Programme of Action and the ATT; 2) its utility in identifying priority areas for international assistance and cooperation; and 3) its utility as a risk assessment profiling mechanism for arms export licensing authorities; (b) CAR staff presentations at a range of international conferences (EU, UN, OSCE and regional organisations, including African Union, Economic Community Of West African States (ECOWAS) and the Regional Centre on Small Arms in the Great Lakes Region, the Horn of Africa, and Bordering States (RECSA)). Staff presentations will be designed to showcase iTrace to policy makers, to encourage and develop sustainable partnerships with individuals and organisations capable of generating information that can be uploaded onto the iTrace system, as well as to assist policy makers in identifying priority areas for international assistance and cooperation. The project will be implemented over the full two-year iTrace project period. 4.3.3. Project results The project will: (a) promote the utility of iTrace with national and international policy makers working to implement SALW and other conventional arms control and arms export control agreements (UN Programme of Action and ATT), and evaluate their implementation; (b) provide relevant information to assist policy makers and conventional arms control experts in identifying priority areas for international assistance and cooperation and devising effective counter-proliferation strategies; (c) provide arms export licensing authorities with in-depth information on iTrace and its risk assessment utility, in addition to providing an avenue for feedback and system enhancement; (d) further network an expanding group of SALW and other conventional arms control experts involved in conducting in situ investigations into the diversion and trafficking of conventional weapons and ammunition; (e) raise the public profile of tracing SALW and other conventional weapons and ammunition as a means to assist in monitoring the implementation of the UN Programme of Action, the ATT and other international and regional arms control and arms export control instruments. 4.3.4. Project implementation indicators Up to 12 conferences attended by CAR staff, of which two will include conferences held in Brussels. All conferences will include presentations of iTrace. Conference agendas and brief summaries will be included in the final report. 4.3.5. Project beneficiaries Please see Section 4.1.5 above for a full list of beneficiaries, which is identical for all projects listed within this decision. 4.4. Project 4: iTrace policy reports 4.4.1. Project objective The project will provide key policy issue reports, drawn from the data generated by field investigations and presented on the iTrace system. The reports will be designed to highlight specific areas of international concern, including major trafficking patterns of SALW and of other conventional weapons and ammunition, the regional distribution of trafficked weapons and ammunition, and priority areas for international attention. 4.4.2. Project activities In-depth analysis leading to the compilation, review, editing and publication of four iTrace policy reports. 4.4.3. Project results The project will: (a) produce four reports, each profiling a separate issue of international concern; (b) ensure the distribution of iTrace policy reports to all EU Member States; (c) devise a targeted outreach strategy to ensure maximum global coverage; (d) sustain the visibility of the Action in the policy arena and international news media by, inter alia, presenting illicit weapons information of topical concern; providing policy relevant analysis in support of ongoing arms control processes and tailoring reports to provide maximum international news media interest. 4.4.4. Project implementation indicators Four online iTrace policy reports produced throughout the duration of the proposed Action and distributed globally. 4.4.5. Project beneficiaries Please see Section 4.1.5 above for a full list of beneficiaries, which is identical for all projects listed within this decision. 5. Locations The location for Project 1 will be the United Kingdom. The project recognises that the required results of in-field investigations cannot be replicated remotely and Project 2 will necessitate extensive field deployment of conventional arms experts to countries in the sub-Saharan rim. These deployments will be assessed on a case-by-case basis, with reference to security, access and the availability of information. CAR already has established contacts or ongoing projects in many of the sub-Saharan rim countries concerned. Project 3 will be conducted at international conferences worldwide to ensure maximum project visibility. Project 4 will be compiled in the United Kingdom. 6. Duration The total estimated duration of the combined projects is 24 months. 7. Implementing entity and EU visibility 7.1. The technical implementation of this Decision will be entrusted to CAR. CAR will perform its task under the responsibility of the HR CAR emerged out of a growing network of arms investigators, which has pioneered conventional weapons and ammunition identification and tracing since 2006. It is the only organisation, outside of the UN system, dedicated exclusively to identifying and tracing conventional weapons, ammunition and related materiel, on the ground, in contemporary armed conflicts and its scope of operations is far wider than the fields of activity of UN Monitoring Groups, which are focused only on sanctioned states. Its operations are also more specialised than those of existing non-governmental arms control organisations, such as BICC, GRIP, SIPRI and the Small Arms Survey (SAS). Created in consultation (1) with the aforementioned organisations, CAR fills an important gap in their research and analysis activities. This is because they tend to focus either on compiling macro-level research (trade statistics analysis and generating information on trafficking from third parties) or ‘mid-level’ work in specific countries (often involving armed violence surveys, which are not focused on weapons per se). In contrast to these organisations, CAR focuses exclusively on identifying and tracing weapons on the ground. This individual case study approach, and the technical capacity required to implement it, is essential for comprehensively mapping the diversion of conventional arms into and within countries in conflict, which is currently not sufficiently monitored by the international community. To do this, CAR sends small teams of investigators, with 10 or more years of weapons-specific expertise, into conflict-affected areas to examine and document illicit weapons in situ. CAR also works to assist, coordinate and verify investigations by UN Sanctions Monitors, UN mission personnel, journalists and independent researchers working on the ground. These core competencies are the only way to generate the detailed, weapon-specific information necessary to populate a global reporting system on illicit SALW and other conventional arms, such as iTrace. 7.2. EU Visibility CAR shall take all appropriate measures to publicise the fact that the Action has been funded by the European Union. Such measures will be carried out in accordance with the Commission Communication and Visibility Manual for EU External Actions laid down and published by the European Commission. CAR will thus ensure the visibility of the Union contribution with appropriate branding and publicity, highlighting the role of the Union, ensuring the transparency of its actions, and raising awareness of the reasons for the Decision as well as Union support for the Decision and the results of this support. Material produced by the project will prominently display the Union flag in accordance with Union guidelines for the accurate use and reproduction of the flag. 8. Reporting CAR will thus prepare regular reports quarterly. (1) CAR consulted BICC, GRIP, SAS and SIPRI extensively throughout the conceptual design of the iTrace project. All four organisations state that they a) do not have the technical capacity to conduct this kind of project, b) for them to do so would entail a radical revision of their research agendas and the hiring of expert staff and c) that iTrace would greatly support their research by providing a ‘missing’ field-based mapping component to complement existing ‘at a distance’ arms trade monitoring approaches.

Summary: A global reporting mechanism on illicit small arms, weapons and ammunition to reduce the risk of their illicit trade A global reporting mechanism on illicit small arms, weapons and ammunition to reduce the risk of their illicit trade The EU supports the setting-up of a user-friendly global information management system on diverted or trafficked weapons and to carry out research into weapons and ammunition circulating in areas of the world affected by conflicts. ACT Council Decision 2013/698/CFSP of 25 November 2013 in support of a global reporting mechanism on illicit small arms and light weapons and other illicit conventional weapons and ammunition to reduce the risk of their illicit trade SUMMARY The European Union (EU) has agreed to support a user-friendly global information management system on illicit small arms, light and other illicit conventional weapons and ammunition to reduce the risk of their illicit trade. The system is called iTrace. The project has been allocated EUR 2.32 million from the EU’s budget. There is danger that the illicit manufacture, transfer and circulation of small arms and light weapons (SALWs) will contribute to a worsening of terrorism and organised crime and could be a major factor in triggering and spreading conflicts. An EU strategy paper agreed on in 2006 says that these conflicts, in which SALW were by far the most instrumental factors, have, since 1990, cost the lives of almost four million people and have forced over 18 million to leave their homes or countries. Publicly accessible online system The project will set up a publicly accessible online system that will track illicit SALWs and other illicit conventional weapons and ammunition, plotting specific weapon types, suppliers, transfer routes and illegal recipients. This will enable national governments to systematically monitor the trafficking of SALWs and of other conventional weapons and ammunition. Input for policymakers One of its main aims is also to provide conventional arms control policymakers and experts with input so that they can define more effective strategies and priority areas to deal with this problem. For example, that may be by identifying opportunities for regional cooperation, identifying insecure national stockpiles of SALWs or identifying illegal transfer routes. REFERENCES Act Entry into force Deadline for transposition in the Member States Official Journal Council Decision 2013/698/CFSP 25.11.2013 - L 320 of 30.11.2013 Last updated: 11.06.2014