Summary of Commission Decision

of 20 July 2010

relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement

(Case COMP/38.866 — Animal feed phosphates)

(notified under document C(2010) 5004)

(Only the English and French texts are authentic)

(Text with EEA relevance)

2011/C 111/10

On 20 July 2010, the Commission adopted a decision relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union. In accordance with Article 30 of Council Regulation (EC) No 1/2003 [1], the Commission herewith publishes the names of the parties and the main content of the Decision, including any penalties imposed, taking into account the legitimate interest of undertakings in the protection of their business secrets.

1. INTRODUCTION

(1) In this case two decisions have been adopted: on the one hand, a "streamlined" decision for the undertakings that in their formal requests to settle ("settlement submissions") [2] admitted their participation in the cartel regarding the sale of feed phosphates used in animal feed and, on the other hand, a decision for the undertakings Timab Industries S.A. and Compagnie Financière et de Participation Roullier (FR) (hereafter "CFPR/Timab"), which discontinued the settlement procedure. This summary relates to the Decision addressed to CFPR/Timab.

(2) The addressees of this Decision participated in a single and continuous infringement of Article 101 of the TFEU and, from 1 January 1994, of Article 53 of the Agreement on the European Economic Area (hereafter "EEA Agreement"), by which they colluded as regards the sale of feed phosphates used in animal feed from 16 September 1993 to 10 February 2004.

2. CASE DESCRIPTION

2.1. Procedure

(3) The case was opened on the basis of an immunity application lodged by Kemira on 28 November 2003. The application concerned the period from 1989 to 2003. The Commission obtained further evidence from inspections carried out on 10 and 11 February 2004. On 18 February 2004, Tessenderlo lodged a leniency application. Subsequently, the Commission received further leniency applications from Quimitécnica and CFPR/Timab.

(4) The parties were notified of the decision to initiate the settlement procedure by letter dated 19 January 2009. Following settlement discussions, all parties lodged their settlement submissions within their respective time limits, except for CFPR/Timab, which discontinued the settlement procedure.

(5) On 23 November 2009, the Commission adopted a set of six statements of objections addressed to all parties. With the exception of CFPR/Timab, all parties replied by confirming that the statement of objections corresponded to the content of their settlement submissions and that they therefore remained committed to following the settlement procedure.

(6) After having been granted full access to the file, CFPR/Timab then replied in writing to the statement of objections on 2 February 2010 and participated in an oral hearing held on 24 February 2010.

(7) The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 2 and 16 July 2010. This Decision (as well as the Decision addressed to the settling parties) was adopted on 20 July 2010.

2.2. Summary of the infringement

(8) This case concerns an infringement of Article 101 of the TFEU and, from 1 January 1994, of Article 53 of the EEA Agreement as regards the sale of feed phosphates. The aim of the cartel was to share a large part of the European feed phosphates market by allocating sales quotas to cartel members, as well as coordinating prices and, to the extent necessary, sales conditions.

(9) The cartel arrangements, known as the "Club", CEPA (Centre d’Etude des Phosphates Alimentaires) or later Super CEPA, proved to be resilient and able to adapt to different industry and market conditions over the years.

(10) The main aim of the coordination was to share the volumes of feed phosphates supplied in several European countries, including some which were or became Member States, and some which became contracting parties to the EEA Agreement. The undertakings also coordinated restrictions in terms of production (for example, production based on phosphoric acid technology or redirecting part of the raw materials and output surplus to the fertiliser market) and allocated customers. In particular, the cartel fixed a system of quotas covering different geographic areas within Europe on the basis of which sales volumes and specific customers were allocated to the producers. Where appropriate, compensations were applied to correct deviations.

(11) The cartel also aimed to allow the relevant cartel members to coordinate prices in each country and, where necessary, the sales conditions.

(12) The undertakings were in frequent contact and met regularly in order to coordinate through price monitoring and market sharing agreements, both at European and national levels. Monitoring and compensation mechanisms to control the market sharing agreement and to mediate in disputes involving large deviations from the agreed quotas at European and national levels were provided for and used. This did not prevent the parties from seizing opportunities to supply incorrect data in order to deceive one another.

(13) Prices, price increases and other commercial or purchase conditions — the latter only when necessary — were discussed and coordinated country by country.

(14) The overall infringement covered most of the Union and subsequently a great part of the EEA territory [3]. It lasted from 19 March 1969 at the latest to 10 February 2004 at the earliest.

(15) It has been established that Timab participated and was fully integrated in the Super CEPA agreements and in the overall feed phosphates cartel from 16 September 1993 to 10 February 2004.

(16) CFPR (parent company of the Roullier group) is held jointly and severally liable with Timab for its involvement in the infringement, from 16 September 1993 at the latest to 10 February 2004.

2.3. Addressees and duration

(17) The following legal entities are held liable for the infringement for the period indicated:

- Timab Industries S.A.: from 16 September 1993 at the latest to 10 February 2004,

- Compagnie Financière et de Participation Roullier: from 16 September 1993 at the latest to 10 February 2004.

2.4. Corrective measures

(18) In order to determine the fines to be imposed, the Commission refers to the rules laid down in the 2006 Guidelines on the method of setting fines [4]. The Commission also applies the 2002 Leniency Notice and its Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases.

2.4.1. Basic amount of the fine

(19) In accordance with the Guidelines on the method of setting fines, the basic amounts of the fines to be imposed on each party result from the sum of a variable amount and an additional amount. The variable amount of the fine is related to a proportion, between 0 % and 30 %, of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement. The additional amount is a sum of between 15 % and 25 % of the value of sales of goods or services to which the infringement relates in a given year (normally, the last year of the infringement).

(20) The fine to be imposed on the settling companies is calculated according to the methodology set out in the Guidelines on the method of setting fines; the same as is applied to the non-settling companies (in this case, CFPR/Timab). However, pursuant to the Notice on the conduct of settlement procedures, a reduction is only applied to the settling companies.

(21) In accordance with the Guidelines on the method of setting fines, the basic amount of the fine is set at 17 % of the undertakings’ sales of feed phosphates used for animal feed in the countries within the EEA concerned by the infringement.

(22) The basic amount is multiplied by the number of years of participation in the cartel so as to fully take into account the duration of each individual undertaking’s participation in the infringement.

2.4.2. Adjustments to the basic amount

(23) There are no aggravating or mitigating circumstances in this case.

2.4.3. Application of the 10 % turnover limit

(24) Article 23(2) of Regulation (EC) No 1/2003 states that the fine imposed on each undertaking must not exceed 10 % of its total turnover relating to the business year preceding the date of the Commission’s decision.

2.4.4. Application of the 2002 Leniency Notice: reduction of the fines

(25) Kemira applied for immunity from fines on 28 November 2003. Having fulfilled the requirements of the Leniency Notice, Kemira was granted immunity from fines on 16 December 2003. Yara Phosphates and Yara Suomi, which formed part of the same undertaking as Kemira when the immunity application was lodged, benefit from the same immunity from the fine.

(26) The evidence submitted by Tessenderlo constitutes significant added value within the meaning of the Leniency Notice. A 50 % reduction of the fine which would otherwise have been imposed is granted to Tessenderlo in respect of the period after 31 March 1989. Furthermore, in accordance with point 23 of the Leniency Notice, partial immunity has been granted to Tessenderlo, as its leniency application allowed the Commission to extend the duration of the infringement.

(27) The evidence submitted by Quimitécnica on 27 March 2007 and later supplemented, constitutes significant added value within the meaning of the Leniency Notice. A 25 % reduction of the fine which would otherwise have been imposed should therefore be granted to Quimitécnica. José de Mello, which formed part of the same undertaking as Quimitécnica when the leniency application was lodged, benefits from the same reduction of the fine.

(28) On 14 October 2008, CFPR/Timab lodged an application pursuant to the Leniency Notice which was further supplemented on 28 October 2008. A reduction of 5 % was awarded to CFPR/Timab under the Leniency Notice.

2.4.5. Ability to pay

(29) Two of the undertakings in this case have invoked their "inability to pay" under point 35 of the 2006 Guidelines on the method of setting fines. The Commission reviewed these applications and carefully analysed the available financial data on these undertakings. As a result of this assessment, the Commission accepted one of the applications and granted a 70 % reduction of the fine.

3. DECISION

(30) The fines imposed pursuant to Article 23(2) of Regulation (EC) No 1/2003 are as follows:

EUR 59850000 | owed jointly and severally by Timab Industries S.A. and Compagnie Financière et de Participation Roullier |

[1] OJ L 1, 4.1.2003, p. 1.

[2] Pursuant to Article 10a(2) of Regulation (EC) No 773/2004, as amended by Regulation (EC) No 622/2008 as regards the conduct of settlement procedures in cartel cases.

[3] The geographic scope of the cartel concerned Austria, Belgium, Denmark, Finland, France, Germany, Hungary, Ireland, the Netherlands, Norway, Sweden and the United Kingdom at all times, while other countries such as Spain and Portugal were affected from 1992 and 1993 respectively.

[4] OJ C 210, 1.9.2006, p. 2.

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