20061129

Summary of Commission Decision

of 29 November 2006

relating to a proceeding under Article 81 of the Treaty establishing the European Community and Article 53 of the EEA Agreement

(Case COMP/F/38.638 — BR/ESBR)

(notified under document number C(2006) 5700)

(Only the English, German, Italian and Polish versions are authentic)

(Text with EEA relevance)

(2008/C 7/07)

SUMMARY OF THE INFRINGEMENT

(1) The addressees of this Decision participated in a single and continuous infringement of Article 81 of the EC Treaty and Article 53 of the EEA Agreement in the synthetic rubber industry involving two products:

- Butadiene Rubber (BR), and

- Emulsion Styrene Butadiene Rubber (ESBR).

(2) The infringement's main features included: agreeing on price targets for the products, sharing customers by non-aggression agreements and exchanging sensitive commercial information relating to prices, competitors and customers.

ADDRESSEES AND DURATION OF THE INFRINGEMENT

(3) The Decision is addressed to 13 legal entities (belonging to 6 undertakings), which have participated in the infringement (some entities are held liable as parent companies):

(a) for Bayer: Bayer AG from 20 May 1996 to 28 November 2002;

(b) for Dow: The Dow Chemical Company from 1 July 1996 to 28 November 2002; Dow Deutschland Inc. from 1 July 1996 to 27 November 2001; Dow Deutschland Anlagengesellschaft mbH (formerly Dow Deutschland GmbH & Co. OHG) from 22 February 2001 to 28 February 2002; Dow Europe GmbH from 26 November 2001 to 28 November 2002;

(c) for Enichem: Eni SpA and Polimeri Europa SpA from 20 May 1996 to 28 November 2002;

(d) for Shell: Shell Petroleum N.V., Shell Nederland B.V. and Shell Nederland Chemie B.V. from 20 May 1996 to 31 May 1999;

(e) for Kaucuk: Unipetrol a.s. and Kaucuk a.s. from 16 November 1999 to 28 November 2002;

(f) for Stomil: Trade-Stomil Ltd from 16 November 1999 to 22 February 2000.

THE BR/ESBR INDUSTRY

(4) Both BR and ESBR are synthetic rubbers primarily used in the tyre production. Other applications include golf balls and soles for shoes.

(5) The investigation showed that the cartel covered the whole or the large majority of the EEA. The 2001 combined EEA market value for BR and ESBR was at least EUR 550 million.

PROCEDURE

(6) In December 2002 and January 2003, the German company Bayer informed the Commission of the existence of cartels for BR and ESBR and expressed the wish to cooperate with the Commission under the 2002 Leniency Notice. In March 2003 an inspection took place at the premises of Dow.

(7) About 6 months after the inspection Dow submitted a successful application for reduction of fines between 30 % and 50 %.

(8) On 7 June 2005, the Commission initiated proceedings in this case, and adopted a first Statement of Objections which was notified to the addressees of the Decision (with the exception of Unipetrol a.s.) as well as Chemical Company Dwory S.A., Tavorex s.r.o and Syndial SpA. The Statement of Objections was never notified to Tavorex s.r.o, following the liquidation of that company. The procedure against Tavorex s.r.o has since been closed.

(9) A second Statement of Objections was adopted on 6 April 2006. An Oral Hearing was held on 22 June 2006.

FUNCTIONING OF THE CARTEL

(10) The Commission sets the starting date with the cartel meeting of 20 May 1996. The end of the cartel is set at 28 November 2002, which is the date of the discussions were it was decided to end the cartel.

(11) The anti-competitive arrangements took place in the margin of the meetings of the European Synthetic Rubber Association (ESRA). At the surroundings of some but not all of the ESRA meetings, typically during dinner, at the bar, on the way to the dinner, at the hotel room of one of the participants or at a specifically hired conference room, the companies concluded price agreements for the products in the form of target prices or roll-over prices for the following quarter, shared customers by non-aggression agreements and exchanging sensitive commercial information relating to prices, competitors and customers.

FINES

Basic amount

Gravity

(12) Regarding the gravity of the infringement, impact on the market and its geographic scope, the infringement must be qualified as very serious.

Differential treatment

(13) To reflect differences in turnovers of the 6 undertakings in BR and ESBR, they have been divided into 5 groups.

(14) Eni and Bayer are placed in the first category. Dow has been placed in the second category. Shell has been placed in the third category. Unipetrol is placed in a fourth category, while Stomil is placed in a fifth category.

Sufficient deterrence

(15) In order to set the amount of the fine at a level which ensures that it has sufficient deterrent effect it is appropriate to apply a multiplication factor to the fines imposed. Based on the turnover of the addressees in the most recent financial year preceding the Decision, the Decision applies a multiplication factor for Shell (3), Enichem (2), Dow (1,75), and Bayer (1,5).

Duration

(16) Individual multiplying factors of 10 % per full year and 5 % for each period of 6 months or more will be applied according to the duration of the infringement by each company as set out at paragraph (3)(a)-(f) above. In the case of Dow, the increase for duration is lower taking into account that for the first three years of the infringement Dow did not own the BR/ESBR business which it acquired from Shell in 1999 and that in respect of the same period Shell is already receiving a fine.

Aggravating circumstances

Repeated infringements

(17) At the time the infringement took place, Bayer, Enichem and Shell had already been subject to previous Commission prohibition decisions for cartel activities [1]. This justifies an increase in the basic amount of the fine to be imposed on these undertakings of 50 %.

Attenuating circumstances

(18) Several undertakings claimed some or all of the following attenuating circumstances: cooperation outside the Leniency Notice and/or lack of implementation. These claims are all rejected as being unfounded.

(19) Although Shell did not formally apply for leniency, its cooperation was evaluated according to the provisions of the 2002 Leniency Notice.

Application of the 10 % turnover limit

(20) The fine for Stomil is reduced in consideration of the 10 % worldwide turnover limit set out under Article 23(2) of Regulation (EC) No 1/2003.

Application of the 2002 Leniency Notice

Immunity

(21) Bayer was the first to inform the Commission of the existence of cartels for BR and ESBR on 20 December 2002 and 14 January 2003. On 5 February 2003, the Commission granted Bayer conditional immunity from fines in accordance with point 8(a) of the Leniency Notice. Bayer has co-operated fully, on a continuous basis and expeditiously throughout the Commission's administrative procedure and provided the Commission with all evidence available to it relating to the suspected infringement. Bayer ended its involvement in the suspected infringement no later than the time at which it submitted evidence under the Leniency Notice and did not take steps to coerce other undertakings to participate in the infringement. Hence, Bayer qualifies for a full immunity from fines and receives no fine.

Point 23(b), first indent (reduction of 30-50 %)

(22) Dow was the first undertaking to meet the requirements of point 21 of the Leniency Notice, as it provided the Commission with evidence which represents significant added value with respect to the evidence already in the Commission's possession at the time of its submission and, to the Commission's knowledge, Dow terminated its involvement in the infringement no later than the time at which it submitted the evidence and its involvement has remained terminated. It qualifies, therefore, under point 23(b), first indent, for a reduction of 30 %-50 % of the fine that would otherwise have been imposed. Dow was awarded a reduction of 40 % of the fine.

Point 23(b), second indent (reduction of 20-30 %)

(23) In its reply to the First Statement of Objections, Shell accepted that the facts, which the Commission was addressing, actually occurred, and pointed to additional, limited factual circumstances. Although no formal application for leniency has been made, the Commission proposes to consider the cooperation of Shell under the terms of the 2002 Leniency notice.

(24) The Decision observes that at the time of Shell's cooperation, the information provided did not constitute significant added value with respect to the evidence already in the Commission's possession, as the Commission was already able to prove the infringement in all of its main elements.

(25) Based on the foregoing, the Decision does not consider that Shell is entitled to a reduction for its cooperation.

DECISION

(26) For the infringements described herein, the following fines are imposed:

(a) Bayer AG: EUR 0;

(b) The Dow Chemical Company: EUR 64575000, of which:

(i) jointly and severally with Dow Deutschland Inc., for EUR 60270000;

(ii) jointly and severally with Dow Deutschland Anlagengesellschaft mbH and Dow Europe GmbH, for EUR 47355000;

(c) Eni SpA and Polimeri Europa SpA, jointly and severally, EUR 272250000;

(d) Shell Petroleum N.V., Shell Nederland B.V. and Shell Nederland Chemie B.V., jointly and severally, EUR 160875000;

(e) Unipetrol a.s. and Kaucuk a.s., jointly and severally, EUR 17550000;

(f) Trade-Stomil Ltd: EUR 3800000.

(27) The addressees of the Decision are ordered to bring to an end immediately the infringement described herein, in so far as they have not already done so and to refrain from repeating any act or conduct described herein, and from any act or conduct having an identical or similar object or effect.

[1] Such decisions include: as regards Shell and Enichem: Commission Decision 86/398/EEC of 23 April 1986 (Polypropylene) (OJ L 230, 18.8.1986, p. 1); Commission Decision 94/599/EC of 27 July 1994 (PVC II) (OJ L 239, 14.9.1994, p. 14). As regards Bayer: Commission Decision 2002/742/EC of 5 December 2001 (Citric Acid) (OJ L 239, 6.9.2002 p. 18).

--------------------------------------------------