Final report of the Hearing Officer (1)

COMP/39.579 — Consumer Detergents

2011/C 193/05

This settlement proceeding concerns a cartel between the undertakings Henkel, Procter & Gamble (P&G) and Unilever aimed at the stabilisation of market positions and price coordination in the market for heavy-duty laundry detergent powders intended for machine washing and sold to consumers. The overall cartel infringement covered Belgium, France, Germany, Greece, Italy, Portugal, Spain and the Netherlands and lasted from 7 January 2002 until 8 March 2005.

Background

The case started following an immunity application submitted by Henkel in May 2008 which was granted conditional immunity from fines on 12 June 2008. Subsequently, inspections were organised in July 2008 at the premises of a number of detergent manufacturers, including P&G and Unilever. Further inspections were carried out at the premises of Unilever in April 2009. P&G and Unilever applied for leniency in September 2008 and in October 2009 respectively.

The Commission initiated proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003 (2) on 21 December 2009. On 23 December 2009, the three parties were formally requested to indicate in writing their interest to engage in discussions with a view to introduce settlement submissions (3). All parties accepted the invitation and bilateral settlement discussions followed suit with the Directorate-General for Competition.

The settlement procedure

The settlement discussions were organised in three main phases between June 2010 and January 2011 during which period three rounds of formal bilateral meetings took place between the Commission and each of the parties.

During these meetings, the parties were orally informed of the objections that the Commission envisaged to raise against them as well as evidence supporting those objections. Following the first meeting in June 2010, the parties were given access at the Directorate-General for Competition's premises to the relevant evidence and all oral statements. Parties were also given access to the list of all documents in the Commission’s file and a copy of the evidence that had already been shown to them to enable their position regarding a time period or any other aspect to the cartel. Henkel and Unilever requested further access to the Commission's file which was considered justified and granted. The parties were also provided with an estimation of the range of likely fines to be imposed by the Commission within the framework of the settlement procedure.

At the end of the third round of meetings, the parties submitted to the Commission their formal request to settle pursuant to Article 10a(2) of Regulation (EC) No 773/2004 (4). In these settlement submissions, Henkel, P&G and Unilever clearly and unequivocally acknowledged their respective liability for an infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement. Furthermore, the parent companies of the three parties Henkel, P&G and Unilever clearly and unequivocally acknowledged that they are responsible for the behaviour of their subsidiaries which were involved in the cartel. In the settlement submissions, the parties also confirmed (i) that they had been sufficiently informed of the objections the Commission envisaged raising against them and that they had been given sufficient opportunity make their views known thereupon, (ii) that they did not envisage requesting access to file or to be heard in an oral hearing, subject to the condition that the Statement of Objections (SO) and the final Decision would reflect their settlement submissions and (iii) that they agreed to receive the SO and the final Decision in English.

The Commission adopted, on 9 February 2011, the SO reflecting the parties’ settlement submissions, which was notified to the parties at the Directorate-General for Competition’s premises.

All parties confirmed in their reply that the SO corresponded to the content of their settlement submissions and that they remain committed to the settlement procedure. The Commission could therefore proceed directly to a decision pursuant to Articles 7 and 13 of Regulation (EC) No 1/2003.

The draft decision

The draft decision retains the objections raised in the Statement of Objections and reflects hence also the parties’ respective settlement submissions. Accordingly, the draft decision relates only to objections in respect of which the parties have been afforded the opportunity to make known their views.

In view of the above, and taking into account that the parties have not addressed any issues concerning access to files or their rights of defence to me or to the member of the Hearing Office attending the settlement meetings, I consider that the right to be heard of all participants to the proceedings has been respected in this case.

(1)  Pursuant to Article 15 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).

(2)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(3)  Commission Regulation (EC) No 622/2008 amending Regulation (EC) No 773/2004 as regards the conduct of settlement procedures in cartel cases (OJ L 171, 1.7.2008, p. 3), and Commission 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 (OJ C 167, 2.7.2008, p. 1).

(4)  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18).