Final report of the Hearing Officer in Case COMP/38.344 — Prestressing Steel

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

2011/C 339/05

This case concerns long-lasting price and quota arrangements concluded between European suppliers of prestressing steel.

I.   WRITTEN PROCEDURE

1.   Statement of Objections and background

The Commission adopted a Statement of Objection (SO) on 30 September 2008 addressed to 40 companies (the Parties) forming 18 undertakings.

The Commission’s investigation was triggered by documents handed over by the Bundeskartellamt in 2002 and supplemented by an undertaking’s immunity application submitted under the 2002 Leniency Notice (1). After the Commission had granted conditional immunity, it carried out unannounced inspections at the premises of a large number of prestressing steel producers and one other undertaking. Following its inspections, the Commission received further leniency submissions. Prior to adopting the SO, the Commission informed these applicants that immunity from fines was not available, of its preliminary conclusions as to the availability of a reduction in fine and specified, as appropriate, the band of reduction envisaged.

On the basis of the collected information, the Commission came to the preliminary conclusion that the Parties had committed for varying periods a single and continuous infringement and/or repeated infringements of Article 101 TFEU from 1 January 1984, and of Article 53(1) of the EEA Agreement from 1 January 1994 until 19 September 2002.

2.   Access to file

The Parties were granted access to the file via a DVD in October 2008. They also received access to oral and written leniency statements at the Commission's premises. In that regard, I am pleased to note that no access to file issues were raised with me by any party despite a voluminous and complex file.

3.   Deadlines for written reply

The Parties were originally granted a deadline of six weeks to reply in writing to the SO, starting from the day after receipt of the DVD file. A number of parties submitted reasoned requests for extensions, which I granted. All Parties replied in time.

II.   ORAL PROCEDURE

An Oral Hearing was held on 11 and 12 February 2009 and was attended by representatives of all but four parties.

The oral presentation of one undertaking in particular, including presentations from an individual, strongly contested the facts alleged in the SO concerning its alleged involvement in the cartel. The undertaking in question provided, inter alia, evidence that it competed aggressively during the relevant period. Similar arguments had been made in its written reply.

III.   THE DRAFT DECISION

In the draft decision, the Commission essentially retains its objections as set out in the SO. Following written and oral submissions of the Parties, there has been a slight narrowing both of the products concerned and in the nature of the alleged anti-competitive conduct.

Four parties (i.e. legal entities) to whom the SO was addressed have been dropped from the draft decision, including the undertaking discussed in Section II. Although the overall duration of the infringement found in the draft decision is the same as that alleged in the SO, the duration of participation found for some undertakings and parties within undertakings has been reduced.

As regards the application of the 2006 Fining Guidelines, the SO identified a number of undertakings as potential cartel ‘leaders’, but this has not been retained in the draft decision. Also, fewer undertakings have been identified as recidivists in the draft decision than in the SO and fewer previous decisions have been cited.

Finally, I note that in the draft decision, the Commission generally intends to refer to the most recent turnover data available of all undertakings in order to calculate the 10 % turnover cap (whilst also respecting the legal cap specified in Article 23(2) Regulation (EC) No 1/2003). In so doing, the Commission takes account of the recent economic and financial crisis and its effect on the turnover of the Parties; this variation therefore favours the Parties. However, in the case of one party, the Commission has referred to an earlier year as that party ceased to generate turnover a number of years ago.

In my view, the draft decision deals only with objections in respect of which the Parties have been afforded the opportunity of making their views known.

IV.   CONCLUSION

In view of the above observations, I consider that the right to be heard has been respected with respect to all Parties to the proceedings in this case.

(1)  Commission notice on immunity from fines and reduction of fines in cartel cases (OJ C 45, 19.2.2002, p. 3).