4.12.2009   

EN

Official Journal of the European Union

C 295/17

(1)

The Decision was addressed to ENI S.p.A., Esso Deutschland GmbH, Esso Société Anonyme Française, ExxonMobil Petroleum & Chemical, B.V.B.A., Exxon Mobil Corporation, H&R ChemPharm GmbH, H&R Wax Company Vertrieb GmbH, Hansen & Rosenthal KG, Tudapetrol Mineralölerzeugnisse Nils Hansen KG, MOL Nyrt., Repsol YPF Lubricantes y Especialidades S.A., Repsol Petróleo S.A., Repsol YPF S.A., Sasol Wax GmbH, Sasol Wax International AG, Sasol Holding in Germany GmbH, Sasol Limited, Shell Deutschland Oil GmbH, Shell Deutschland Schmierstoff GmbH, Deutsche Shell GmbH, Shell International Petroleum Company Limited, the Shell Petroleum Company Limited, Shell Petroleum N.V., the Shell Transport and Trading Company Limited, RWE-Dea AG, RWE AG, Total France S.A. and Total S.A.

(2)

The above 28 legal entities (belonging to 10 undertakings, with some legal entities held liable as parent companies), committed a single and continuous infringement of Article 81 of the Treaty and Article 53 of the EEA Agreement consisting of price fixing and exchange of commercially sensitive information affecting the paraffin waxes industry in the EEA. For Dea (later Shell), ExxonMobil, MOL, Repsol, Sasol and Total this single and continuous infringement also consisted of customer and/or market allocation in the EEA. The infringement lasted from 3 September 1992 to 28 April 2005, with different durations for the different legal entities and undertakings. For Dea (later Shell), ExxonMobil, Sasol, and Total this single and continuous infringement also related to slack wax that is sold to end-customers on the German market for the period from 30 October 1997 until 12 May 2004, with different durations for the different legal entities and undertakings involved.

(3)

The products concerned are paraffin waxes and, for some addressees of the Decision, also slack wax. Paraffin waxes comprise fully-refined paraffin waxes and semi-refined paraffin waxes (depending on the content of oil) as well as hydro-finished waxes, wax blends, wax specialties and hard paraffin waxes. They are used for the production of a variety of products such as candles, chemicals, tires and automotive products as well as in the rubber, packaging, adhesive and chewing gum industries. In Europe, 60-70 % of paraffin wax is used for candle production. Slack wax is the raw material required for the manufacture of paraffin waxes. It is produced in refineries as a by-product in the manufacture of base oils from crude oil. It is also sold to end-customers, to producers of particle boards for instance.

(4)

The market value for paraffin waxes and slack wax was estimated in the Statement of Objections at around EUR 485 000 000 in the EEA in 2004. The supplies of the addressees of the decision amounted to 75 % of the demand of the EEA market.

(5)

The Commission’s investigation began as a result of the information received from an immunity application under the 2002 Commission notice on immunity from fines and reduction of fines in cartel cases (the ‘2002 Leniency Notice’). The application was made by Shell Deutschland Schmierstoff GmbH on […]. On […], the Commission granted Shell conditional immunity from fines in accordance with point 15 of the 2002 Leniency Notice.

(6)

On 28 and 29 April 2005, the Commission carried out inspections at the premises of Sasol (Germany), H&R/Tudapetrol (Germany), Esso/ExxonMobil (Netherlands and Germany), Total (France), Repsol (Spain), ENI (Italy), and MOL (Hungary).

(7)

Following the inspections, the Commission received applications for immunity and alternatively, applications for a reduction of fines, under the 2002 Leniency Notice from Sasol, Repsol and ExxonMobil. Sasol submitted a leniency application on […]. Repsol applied for immunity/leniency on […]. ExxonMobil applied for immunity/leniency on […].

(8)

On 25 May 2007, the Commission initiated proceedings and adopted a Statement of Objections (SO) concerning an infringement of Article 81 of the EC Treaty and Article 53 of the EEA Agreement against ENI S.p.A.; Esso Deutschland GmbH, Esso Nederland B.V., Esso Société Anonyme Française, ExxonMobil Petroleum & Chemical, B.V.B.A. and Exxon Mobil Corporation, Tudapetrol Mineralölerzeugnisse Nils Hansen KG, H&R ChemPharm GmbH, H&R Wasag AG, H&R Beteiligung GmbH, H&R Wax Company Vertrieb GmbH and Hansen & Rosenthal KG; MOL Nyrt.; Repsol YPF Lubricantes y Especialidades S.A. (Rylesa), Repsol Petróleo S.A. and Repsol YPF S.A.; Sasol Wax GmbH, Sasol Wax International AG, Sasol Holding in Germany GmbH and Sasol Limited Shell Deutschland Oil GmbH, Shell Deutschland Schmierstoff GmbH, Deutsche Shell GmbH, Shell International Petroleum Company Limited (SIPC), the Shell Petroleum Company Limited (SPCO), Shell Petroleum N.V., the Shell Transport and Trading Company Limited and the Royal Dutch Shell plc; RWE-Dea AG and RWE AG; and Total France S.A. and Total S.A.. All addressees of the SO submitted written comments in response to the objections raised by the Commission. An Oral Hearing was held on 10 and 11 December 2007. All the undertakings to which the Statement of Objections had been addressed, with the exception of Repsol Petróleo S.A. and Repsol YPF S.A., took part in the Hearing.

(9)

In view of the elements brought forward by Esso Nederland B.V. in its reply to the Statement of Objections, the Commission has decided to close proceedings against this company. The Commission has also decided to close the proceedings against H&R Wasag AG, H&R Beteiligung GmbH and the Royal Dutch Shell plc.

(10)

The evidence in the possession of the Commission demonstrates on a solid and lasting basis that the addressees of the Decision were involved in the infringement as described in recital (2).

(11)

The common overall plan, identical anti-competitive object and single economic aim of the cartel was to reduce and prevent competition on price, to stabilise or raise prices by agreeing on minimum prices and price increases, and for some undertakings, to secure customer relations and certain markets. In summary, the objective of these efforts was to significantly reduce or even eliminate competitive pressure with the ultimate goal of achieving higher profits in order to ultimately stabilise or increase profits.

(12)

The Decision describes in detail the evidence found of several meetings and/or contacts each year between representatives of the undertakings involved during the period of the infringement during which the infringing acts were committed.

(13)

The basic amount of the fine was determined as a proportion of the average value of the sales of paraffin and/or slack wax made by each undertaking in the relevant geographic area during the last three business years of the infringement (‘variable amount’), multiplied by the number of years of infringement, plus an additional amount, also calculated as a proportion of the value of sales, in order to deter horizontal price fixing agreements (‘entry fee’).

(14)

The criteria that were considered in order to set out the proportions were the nature of the infringement and the geographic scope.

(15)

The variable amount was then multiplied by the relevant duration (different durations for the different legal entities and undertakings).

(16)

At the time the infringement took place, Shell and ENI had already been the addressees of previous Commission decisions concerning cartel activities. The fact that these undertakings have repeated the same type of conduct either in the same industry or in different sectors from that, in which they had previously incurred penalties, showed that the first penalties did not prompt these undertakings to change their conduct. This justified an increase in the basic amount to be imposed on Shell and ENI on account of recidivism.

(17)

The Commission found no mitigating circumstances in the present case.

(18)

Accordingly and in line with previous decisions, in order to set the amount of the fine at a level which ensures that it has sufficient deterrent effect the Commission considered it appropriate to apply a multiplication factor to the fine imposed on ExxonMobil, Shell, Total, ENI, Repsol and RWE. In 2007, the most recent financial year preceding the Decision, the turnover of ExxonMobil and Shell exceeded EUR 250 billion, the turnover of Total exceeded EUR 150 billion, the turnover of ENI exceeded EUR 85 billion and the turnover of Repsol and RWE exceeded EUR 40 billion.

(19)

The final individual amounts of the fines calculated prior to the application of the Leniency Notice were below 10 % of the worldwide turnovers of the addressed undertakings.

(20)

Shell, Sasol, Repsol and ExxonMobil co-operated with the Commission at different stages of the investigation with a view to receiving the favourable treatment set out in the 2002 Leniency Notice, applicable to the present case.

(21)

Shell was the first undertaking to inform the Commission about the existence of a cartel in the candle waxes sector affecting the EEA market. The documentary evidence and corporate statement Shell provided on […] and subsequently enabled the Commission to establish the existence, content and the participants of a number of cartel meetings and other contacts as well as to undertake inspections on 28 and 29 April 2005. It terminated its participation to the infringement before its application. Shell therefore qualified for immunity.

(22)

Sasol was the second company to approach the Commission. The information supplied after […] allowed the Commission to establish facts which the Commission could not have otherwise established. The quantity, quality and value as well as the timing of the information submitted by Sasol allowed the Commission to better understand the infringement and interpret the documents obtained. Sasol’s cooperation was rewarded with a 50 % reduction of the fine.

(23)

Repsol, which offered its cooperation to the Commission in […] corroborated Shell’s and Sasol’s submissions and provided further evidence on the cartel as well as self-incriminating evidence. Based on the foregoing, Repsol’s cooperation was rewarded with a 25 % reduction of the fine.

(24)

ExxonMobil approached the Commission in […] and offered corroborating evidence, although only to a limited extent. Otherwise, ExxonMobil’s submissions were vague and to a large extent contained useless information. ExxonMobil’s cooperation was rewarded with a reduction of the fine of 7 %.

(25)

The addressees of the Decision and the duration of their involvement were as follows:

(26)

As far as paraffin waxes are concerned:

(27)

As far as slack wax is concerned:

(28)

Following the above recitals, the following fines were imposed:

(29)

The undertakings listed in recitals (26)-(27) were ordered to bring to an end immediately the infringement referred to in recital (2), in so far as they had not already done so and to refrain from repeating any act or conduct described in recital (2), and from any act or conduct having an identical or similar object or effect.