Summary of Commission Decision

of 5 March 2019

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 AT.40481 — Occupants Safety Systems (II) supplied to the Volkswagen Group and the BMW Group)

(notified under document number C(2019)1656 final)

(Only the English text is authentic)

(Text with EEA relevance)

(2019/C 199/04)

On 5 March 2019, the Commission adopted a decision relating to proceedings under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA agreement. In accordance with the provisions of 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, having regard to the legitimate interest of undertakings in the protection of their business secrets.

1.   INTRODUCTION

(1)

On 5 March 2019, the Commission adopted a Decision relating to two single and continuous infringements of Article 101 of the Treaty and Article 53 of the EEA Agreement. The infringements consisted of exchanging commercially sensitive information but, in some instances, also extended to more concrete forms of coordination, in respect of supplies of certain occupants safety systems products for certain passenger cars to companies belonging to the Volkswagen and Porsche Group (‘VW Group’) and to the BMW and Mini Group (‘BMW Group’).

(2)

The products concerned by these infringements are passive safety systems such as seatbelts, airbags and steering wheels. These are key devices designed to increase the protection of occupants of a vehicle in case of collision.

(3)

This Decision is addressed to Autoliv (2), Takata (3) and TRW (4) (the ‘parties’).

2.   CASE DESCRIPTION

2.1.   Procedure

(4)

Following an immunity application submitted by Takata, in March 2011, under the terms of the 2006 Leniency Notice (5) in relation to collusive contacts related to the supplies of OSS to the VW Group and the BMW Group, the Commission carried out in June 2011 unannounced inspections under Article 20(4) of Regulation (EC) No 1/2003 at the premises of Autoliv and TRW in Germany. On 10 June 2011, TRW submitted a leniency application. On 4 July 2011, Autoliv submitted a leniency application.

(5)

On 7 July 2017, the Commission initiated proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003 against the parties with a view to engaging in settlement discussions with them. Settlement meetings and contacts between the Commission and each party took place between November 2017 and November 2018. Subsequently, all parties submitted their formal request to settle pursuant to Article 10(2) of Regulation (EC) No 773/2004 (6).

(6)

On 10 January 2019, the Commission adopted a statement of objections addressed to the parties. All of the parties replied to the statement of objections by confirming that it reflected the contents of their settlement submissions and that they remained committed to following the settlement procedure.

(7)

The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 1 March 2019.

(8)

The Commission adopted this Decision on 5 March 2019.

2.2.   Summary of the infringements

(9)

The two separate infringements concerned the supply of certain occupant safety systems components to the VW Group and the BMW Group.

2.2.1.   Infringement I: supply of certain OSS to the VW Group

(10)

The infringement consisted of bilateral, and in some cases trilateral, contacts between Autoliv, Takata and TRW. The parties colluded by exchanging certain commercially sensitive information and, in some instances, coordinating or attempting to coordinate on responses to certain requests for quotation (RFQs), responses to the VW Group’s periodical requests for price reviews and cost reductions, certain development costs or other pricing elements, and/or prices for materials and compensation for raw material price increases. The contacts took place via email exchanges, face-to-face meetings or phone conversations.

2.2.2.   Infringement II: supply of certain OSS to the BMW Group

(11)

The infringement consisted of bilateral, and in some cases trilateral, contacts between Autoliv, Takata and TRW. The parties colluded by exchanging certain commercially sensitive information and, in some instances, by coordinating or attempting to coordinate on pricing information, including in the context of certain RFQs, the BMW Group’s periodical requests for price reviews and cost reductions, and/or prices for materials and compensation for raw material price increases. The contacts took place via email exchanges, face-to-face meetings or phone conversations.

2.2.3.   Duration

(12)

The duration of the participation of each party in the infringements was as follows: Infringement Undertaking Start End I AUTOLIV 04/01/2007 30/03/2011 TAKATA 04/01/2007 30/03/2011 TRW 04/01/2007 28/03/2011 II AUTOLIV 28/02/2008 16/09/2010 TAKATA 28/02/2008 17/02/2011 TRW 05/06/2008 17/02/2011

2.3.   Addressees

2.3.1.   Autoliv

(13)

Liability for Infringements I and II is imputed jointly and severally to Autoliv B.V. & Co. KG, for its direct involvement, and Autoliv, Inc. as parent company.

2.3.2.   Takata

(14)

Liability for Infringements I and II is imputed jointly and severally to TB Deu Abwicklungs-Aktiengesellschaft i.L. (formerly Takata Aktiengesellschaft) for its direct involvement, and TKJP Corporation (formerly Takata Corporation) as parent company.

2.3.3.   TRW

(15)

Liability for Infringements I and II is imputed jointly and severally to TRW Automotive Safety Systems GmbH and TRW Automotive GmbH for their direct involvement and ZF TRW Automotive Holdings Corp. (formerly TRW Automotive Holdings Corp.) as parent company.

2.4.   Remedies

(16)

The Decision applies the 2006 Guidelines on Fines (7).

2.4.1.   Basic amount of the fine

(17)

In Infringement I, the value of sales is calculated on the basis of the yearly average of sales of seatbelts, airbags and steering wheels to the VW Group in the EEA during the infringement period.

(18)

In Infringement II, the value of sales is calculated on the basis of the yearly average of sales of seatbelts, airbags and steering wheels to the BMW Group in the EEA during the infringement period.

(19)

Considering the nature of the infringements and their geographic scope, the percentage for the variable amount of the fines as well as the additional amount (‘entry fee’) is set at 16 % of the value of sales for each infringement.

(20)

The variable amount is multiplied by the number of years or by fractions of the year respectively of the parties’ individual participation in the infringements in order to take fully into account the actual duration of the participation for each party in the infringements individually. The duration multiplier is calculated on the basis of calendar days.

2.4.2.   Adjustments to the basic amount

(21)

There are no aggravating or mitigating circumstances in this case.

2.4.3.   Application of the 10 % turnover limit

(22)

None of the fines calculated exceeds 10 % of the respective party’s worldwide turnover in 2017.

2.4.4.   Application of the 2006 Leniency Notice: reduction of fines

(23)

Takata was the first to submit information and evidence meeting the conditions of point 8(a) of the 2006 Leniency Notice in Infringements I and II. Takata is thus granted immunity from fines for Infringements I and II.

(24)

TRW was the first undertaking to meet the requirements of points 24 and 25 of the 2006 Leniency Notice as regards Infringements I and II. TRW is therefore granted a reduction of 50 % of the fine for Infringements I and II.

(25)

Autoliv was the second undertaking to meet the requirements of points 24 and 25 of the 2006 Leniency Notice as regards Infringements I and II. Autoliv is therefore granted a reduction of 30 % of the fine for Infringements I and II.

(26)

Autoliv was the first party to submit compelling evidence in the sense of point 25 of the 2006 Leniency Notice that enabled the Commission to extend the duration of Infringement I. In accordance with point 26 of the 2006 Leniency Notice, the mentioned duration is not taken into account when setting the fine for Autoliv for Infringement I.

2.4.5.   Application of the Settlement Notice

(27)

As a result of the application of the Settlement Notice, the amount of the fines to be imposed on each party was reduced by 10 %. The reduction was added to their leniency reward.

2.4.6.   Application of the point 37 of the Guidelines on Fines

(28)

The fact that the Commission decided to separate its investigations of the OSS-related infringements into two separate proceedings (8), led to a total period of investigation which was longer than what it would have been had there been no separation of the investigation. The Commission considers that separation to be an exceptional factor which justifies a reduction of the fine to be imposed on each of the addressees.

(29)

Consequently, the amount of the fines after leniency and settlement reductions imposed on each party was further reduced by 5 %.

3.   CONCLUSION

(30)

The following fines were imposed pursuant to Article 23(2) of Regulation (EC) No 1/2003: For Infringement I: (a) on TKJP Corporation (formerly Takata Corporation) and TB Deu Abwicklungs-Aktiengesellschaft i.L. (formerly Takata Aktiengesellschaft), jointly and severally: EUR 0; (b) on Autoliv, Inc. and Autoliv B.V. & Co KG., jointly and severally: EUR 121 211 000; (c) on ZF TRW Automotive Holdings Corp. (formerly TRW Automotive Holdings Corp.), TRW Automotive Safety Systems GmbH and TRW Automotive GmbH, jointly and severally: EUR 158 824 000; For Infringement II: (a) on TKJP Corporation (formerly Takata Corporation) and TB Deu Abwicklungs-Aktiengesellschaft i.L. (formerly Takata Aktiengesellschaft), jointly and severally: EUR 0; (b) on Autoliv, Inc. and Autoliv B.V. & Co. KG, jointly and severally: EUR 58 175 000; (c) on ZF TRW Automotive Holdings Corp. (formerly TRW Automotive Holdings Corp.), TRW Automotive Safety Systems GmbH and TRW Automotive GmbH, jointly and severally: EUR 30 067 000.

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(1)  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).

(2)  The relevant legal entities are Autoliv, Inc. and Autoliv B.V. & Co. KG.

(3)  The relevant legal entities are TKJP Corporation (formerly Takata Corporation) and TB Deu Abwicklungs-Aktiengesellschaft i.L. (formerly Takata Aktiengesellschaft).

(4)  The relevant legal entities are ZF TRW Automotive Holdings Corp. (formerly TRW Automotive Holdings Corp.), TRW Automotive Safety Systems GmbH and TRW Automotive GmbH.

(5)  OJ C 298, 8.12.2006, p. 17.

(6)  OJ L 123, 27.4.2004, p. 18.

(7)  OJ C 210, 1.9.2006, p. 2.

(8)  See also Commission Decision C(2017) 7670 final of 22.11.2017 in case AT.39881 — Occupant Safety Systems supplied to Japanese Car Manufacturers.