Summary of Commission Decision of 28 November 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.165 — Flat Glass) (notified under document number C(2007) 5791) (Text with EEA relevance)
OJ C 127, 24.5.2008, p. 9–11 (BG, ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)
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Summary of Commission Decision
of 28 November 2007
relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement
(Case COMP/39.165 — Flat Glass)
(notified under document number C(2007) 5791)
(Only the English and French texts are authentic)
(Text with EEA relevance)
1. On 28 November 2007, the Commission adopted a decision relating to a proceeding under Article 81 of the EC Treaty. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003 , the Commission herewith publishes the names of the parties and the main content of the decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business secrets.
2. A non-confidential version of the decision is available on the Competition Directorate General website at the following address:
2. CASE DESCRIPTION
3. This case was initiated on the basis of information from national competition authorities. Inspections were carried out at the premises of Glaverbel (Asahi's subsidiary, recently renamed AGC Flat Glass Europe), Guardian, Pilkington and Saint-Gobain in February 2005. A second round of inspections took place at the premises of Guardian and the GEPVP (European Flat Glass Trade Organisation) in March 2005. In between the two rounds of inspections, on 2 March 2005, Asahi and Glaverbel applied for immunity from fines or, in the alternative, reduction of fines.
4. Several written requests for information were addressed to the undertakings involved in the anti-competitive arrangements. The Commission rejected Asahi's and Glaverbel's request for immunity under point 8 of the Leniency Notice and informed them that it intends to grant them a reduction of 30-50 % of any fines.
5. The Statement of Objections was adopted on 9 March 2007 and notified to the parties. An oral hearing was held on 7 June 2007. Only Asahi, Glaverbel and Guardian participated in the hearing.
2.2. Functioning of the cartel
6. The evidence of the existence of the cartel covers the period from January 2004 to February 2005.
7. The collusive practice can be categorised as follows: essentially price fixing practices for flat glass in the EEA. The Commission considers that this collusion forms part of a single overall scheme and therefore constitutes a single infringement of Article 81 of the EC Treaty and of Article 53 of the EEA Agreement.
8. The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 16 and 23 November 2007.
2.3. Summary of the infringement
9. The addressees of the Decision participated in a single and continuous infringement of Article 81 of the Treaty establishing the European Community and of Article 53 of the Agreement on the European Economic Area, involving the coordination of price increases and other commercial conditions for flat glass products.
2.3.1. The flat glass sector
10. The product categories concerned by the decision are flat glass products for use in buildings. They comprise float glass (produced in the "float" process, the basic flat glass product accounting for about 90 % of flat glass capacity), low-E glass ("low emissivity"; glass minimising condensation and heat loss), laminated glass (used for special safety and security purposes) and unprocessed mirrors (silvered glass to be used as mirrors).
11. The estimated EEA market value for these product categories sold to independent customers in 2004 was approximately EUR 1700 million. The four undertakings involved in the infringement had an estimated market share of at least 80 %.
12. The addressees referred to below participated in a single and continuous infringement of Article 81 of the EC Treaty and of Article 53 of the Agreement on the European Economic Area, covering the territory of the EEA, the main features of which were that they agreed price increases in the EEA as well as the timing of their announcements, minimum prices and other commercial conditions for the four mentioned flat glass product categories. They also exchanged sensitive commercial information.
13. The decision is addressed to the following legal entities which belong to the four participating undertakings:
(a) Asahi Glass Company Limited and AGC Flat Glass Europe SA/NV;
(b) Guardian Industries Corp. and Guardian Europe SARL;
(c) Pilkington Group Limited, Pilkington Holding GmbH and Pilkington Deutschland AG;
(d) Compagnie de Saint-Gobain SA and Saint-Gobain Glass France SA.
14. Liability of the ultimate parent companies is established on the basis of the presumption of the exercise of decisive influence over their wholly-owned subsidiaries, which is reinforced by several additional indicia.
15. For setting the fines imposed in this case, the Commission applied the principles laid down in its Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003, as published in OJ C 210 of 1.9.2006, p. 2 (hereinafter called: "Guidelines on fines").
2.5.1. Basic amount of the fine
16. According to the Guidelines on fines, the basic amount of the fine has to be determined as a proportion of the value of the sales of the relevant product made by each undertaking in the relevant geographic area during the last full business year of the infringement ("variable amount"), multiplied by the number of years of the infringement, plus an additional amount, also calculated as a proportion of the value of sales, in order to deter horizontal price fixing agreements ("additional amount").
17. According to the Guidelines on fines, the criteria to be taken into account in order to set out these proportions are, i.e. the nature of the infringement (in this case horizontal price-fixing) and the combined market share of the undertakings participating in the infringement (in this case over 80 %).
18. Taking into account that the infringement lasted for at least 1 year and 1 month for Pilkington and Saint-Gobain, the variable amount has been multiplied by 1,5. As regards Glaverbel the variable amount has been multiplied by 1 instead of 1,5 to take into account adjusted duration (see point 30 below). For Guardian the infringement lasted for 10 months leading the variable amount to be multiplied by 1.
2.5.2. Adjustments to the basic amount
Aggravating and attenuating circumstances
19. All aggravating circumstances and claims for attenuating circumstances have been discussed as regards all undertakings .
Specific increase for deterrence
20. According to the Guidelines, in determining the amount of the fine, the Commission pays particular attention to the need to ensure that fines have a sufficiently deterrent effect. To that end, it may increase the fine to be imposed on undertakings which have a particularly large turnover beyond the sales of goods or services to which the infringement relates (point 30 of the 2006 Guidelines on fines), even if it is not possible to estimate the amount of gains improperly made as a result of the infringement (point 31 of the 2006 Guidelines on fines), as the fine imposed must fulfil its objective of disciplining the infringing undertaking having taken into account its overall size.
21. The Commission gave due considerations to the need to increase the fine on undertakings which have a particularly large turnover beyond the sales of goods or services to which the infringement relates .
2.5.3. Application of the 10 % turnover limit
22. The 10 % worldwide turnover limit provided for in Article 23(2) of Regulation (EC) No 1/2003 is applied to the fines calculated as appropriate.
2.5.4. Application of the 2002 Leniency Notice: reduction of fines
23. As mentioned under point 6 above, Asahi and its subsidiary Glaverbel applied for immunity and in the alternative for a reduction of fines under the 2002 Leniency Notice.
24. The Commission rejected Glaverbel and Asahi's application for immunity under points 8(a) and (b) of the Leniency Notice for the following reasons.
25. As inspections had already been carried out before Asahi/Glaverbel's application, immunity under point 8(a) was no longer available.
26. For the period 20 April 2004 to 22 February 2005, the contemporaneous evidence relied on by the Commission in order to find the infringement concerned by the present decision are mainly contemporaneous notes of cartel meetings copied during the inspections. Glaverbel and Asahi brought few elements with evidentiary value which the Commission did not yet have for that period, except for corroborating statements. At the time Glaverbel and Asahi applied for immunity/leniency the Commission therefore already disposed of contemporaneous evidence copied during the inspections which was sufficient to find an infringement of Article 81.
Significant added value
27. Asahi/Glaverbel was the first and only undertaking to meet the requirements of point 21 of the Leniency Notice.
28. Considering the value of their contribution to the Commission's case, the early stage at which they provided this contribution and the extent of their cooperation following their submissions, the Commission has decided to grant Asahi and Glaverbel a reduction of 50 % of the fine that would otherwise have been imposed
Point 23 last paragraph
29. Although the Commission had evidence of the infringement from the inspection for the meetings of 20 April 2004, 2 December 2004 and 11 February 2005, Glaverbel and Asahi's submissions enabled the Commission to extend the duration of the cartel back to 9 January 2004.
30. This leads to the result that the variable amount has been multiplied by 1 instead of 1,5 for Asahi/Glaverbel to take account of adjusted duration of the infringement.
31. The addressees of the Decision and the duration of their involvement were as follows:
(a) Asahi Glass Company Limited and AGC Flat Glass Europe SA/NV, from 9 January 2004 to 22 February 2005;
(b) Guardian Industries Corp. and Guardian Europe SARL, from 20 April 2004 to 22 February 2005;
(c) Pilkington Group Limited, Pilkington Holding GmbH and Pilkington Deutschland AG from 9 January 2004 to 22 February 2005;
(d) Compagnie de Saint-Gobain SA and Saint-Gobain Glass France SA from 9 January 2004 to 22 February 2005.
32. For the infringements referred to in the previous recital, the following fines were imposed:
(a) Asahi Glass Company Limited and AGC Flat Glass Europe SA/NV, jointly and severally: EUR 65000000;
(b) Guardian Industries Corp. and Guardian Europe SARL, jointly and severally: EUR 148000000;
(c) Pilkington Group Limited, Pilkington Holding GmbH and Pilkington Deutschland AG, jointly and severally: EUR 140000000;
(d) Compagnie de Saint-Gobain SA and Saint-Gobain Glass France SA, jointly and severally: EUR 133900000.
33. The undertakings listed above were ordered to bring to an end the infringements referred to in point 12, insofar as they have not already done so and to refrain from repeating any act or conduct described in point 12, and from any act or conduct having the same or similar object or effect.
 OJ L 1, 4.1.2003, p. 1. Regulation as amended by Regulation (EC) No 411/2004 (OJ L 68, 6.3.2004, p. 1).
 The European Commission cannot disclose the figures because they may be confidential.