25.7.2009   

EN

Official Journal of the European Union

C 173/1

25.7.2009   

EN

Official Journal of the European Union

C 173/5

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32009M5469. EUR-Lex is the on-line access to the European law.

25.7.2009   

EN

Official Journal of the European Union

C 173/5

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32009M5551. EUR-Lex is the on-line access to the European law.

25.7.2009   

EN

Official Journal of the European Union

C 173/6

25.7.2009   

EN

Official Journal of the European Union

C 173/7

1.

The Advisory Committee agrees with the Commission on the method of calculating the relevant sales.

2.

The Advisory Committee agrees with the Commission on the basic amount of the fines.

3.

The Advisory Committee agrees with the Commission on the increase of the basic amount due to aggravating circumstances.

4.

The Advisory Committee agrees with the Commission that no increase of the basic amount to ensure a sufficient deterrent effect is required in this case.

5.

The Advisory Committee agrees with the Commission on the reductions of the fines based on the 2002 Leniency Notice.

6.

The Advisory Committee agrees with the Commission on the final amounts of the fines.

7.

The Advisory Committee recommends the publication of its opinion in the Official Journal of the European Union.

25.7.2009   

EN

Official Journal of the European Union

C 173/9

(i)

Asahi Glass Co. Ltd and its subsidiaries; Glaverbel SA, Glaverbel France SA, Glaverbel Italy S.r.l., Glaverbel UK, Splintex France SA, Splintex UK Limited, AGC Automotive Europe SA and AGC Automotive Germany GmbH;

(ii)

La Compagnie de Saint-Gobain SA and its subsidiaries; Saint-Gobain Glass France SA, Saint-Gobain Sekurit Deutschland GmbH and Saint-Gobain Sekurit France SA;

(iii)

Pilkington Group Limited and its subsidiaries; Pilkington Automotive Ltd, Pilkington Automotive Deutschland GmbH, Pilkington Holding GmbH, Pilkington Italia Spa; and

(iv)

Soliver NV.

—

the duration of the infringement and the duration of the respective parties’ participation have been shortened in comparison to the SO,

—

some allegations contained in the SO, in particular concerning the extent of certain parties’ involvement in the infringement (i.e., ring-leader role; representation of a party by another in the cartel discussions; discussions about the alignment of production strategies for dark tinted glass), have been dropped.

25.7.2009   

EN

Official Journal of the European Union

C 173/11

1.

The Advisory Committee agree with the European Commission's assessment of the facts as an agreement and/or concerted practice within the meaning of Article 81 of the Treaty and Article 53 of the EEA Agreement.

2.

The Advisory Committee agree with the European Commission's assessment of the scope of the infringement corresponding, product-wide, to the supply of carglass parts to vehicle manufacturers.

3.

The Advisory Committee agree with the European Commission that the geographic scope of this case is the EEA, since the sales of carglass parts are supplied to car manufacturers in the EEA.

4.

The Advisory Committee agree with the European Commission's assessment of illicit behaviour, corresponding to agreements and/or concerted practices coordinating prices, supply strategies, sharing customers as well as monitoring and applying a compensation mechanism in order to maintain a certain market share stability.

5.

The Advisory Committee agree with the European Commission that the infringement began at the latest on 10 March 1998 and has lasted until at least 11 March 2003.

6.

The Advisory Committee agree with the European Commission that the exchanging of information between the relevant companies is inherent in the illicit practices and forms an integral part of them.

7.

The Advisory Committee agree with the European Commission that the object and effects of the mentioned illicit practices are restrictions of competition within the meaning of Article 81 of the Treaty and Article 53 of the EEA Agreement and that they are able to distort competition.

8.

The Advisory Committee agree in particular with the European Commission's assessment that all the mentioned illicit practices form part of an overall scheme in pursuit of a single anti-competitive economic aim, and therefore constitutes a single, continuous and complex infringement of Article 81 of the Treaty and Article 53 of the EEA Agreement.

9.

The Advisory Committee agree with the European Commission that Article 81(3) of the Treaty could not be applied in the present case.

10.

The Advisory Committee agree with the European Commission's draft decision as regards the addressees of the decision, specifically with reference to imputation of liability to parent companies of the groups concerned.

11.

The Advisory Committee agree with the European Commission that a fine should be imposed on the addressees of the draft decision.

12.

The majority of the Advisory Committee agree with the European Commission's reasoning on the basic amount of the fines as well as on the mitigating and aggravating circumstances. A minority abstains.

13.

The Advisory Committee agree with the European Commission as regards the application of the 2002 Commission notice on the non-imposition or reduction of fines, including the rejection of the immunity.

14.

The Advisory Committee recommend the publication of its opinion in the Official Journal of the European Union.

25.7.2009   

EN

Official Journal of the European Union

C 173/13

1.

On 12 November 2008, the Commission adopted a decision relating to a proceeding under Article 81 of the EC Treaty. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003, 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.

2.

A non-confidential version of the decision is available on the Directorate-General for Competition's website at the following address: http://ec.europa.eu/competition/antitrust/cases/index.html

3.

This case started as an ex officio investigation. Inspections were carried out on 22 and 23 February 2005 at the premises of companies belonging to the Glaverbel (Asahi's subsidiary, recently renamed AGC Flat Glass Europe), Saint-Gobain, Pilkington and Soliver groups. On 15 March 2005, the Commission carried out a second round of inspections at the premises of Saint-Gobain and Pilkington. In between the two rounds of inspections, on 22 February and 9 March 2005, Glaverbel and Asahi respectively applied for immunity from fines or, in the alternative, reduction of fines.

4.

Several written requests for information were addressed to the undertakings involved in the anti-competitive arrangements. The Commission rejected Asahi's and Glaverbel's request for immunity under point 8 of the Leniency Notice and informed them that it intended to grant them a reduction of 30-50 % of any fines.

5.

The Statement of Objections was adopted on 18 April 2007 and notified to the parties. An oral hearing was held on 24 September 2007. All four groups of companies participated in the hearing.

6.

The Advisory Committee on Restrictive Practices and Dominant Positions met on 1 July and on 7 November 2008 and issued a favourable opinion (2).

7.

Automotive glass or carglass is made from float glass, which is the basic flat glass product category. The automotive products consist of different glass parts such as windscreens, sidelights (windows for front and back doors), backlights (rear window), quarter lights (back window next to rear door window), and sunroofs. The glass parts can moreover be tinted in different colour grades as opposed to clear glass. ‘Privacy’ glass, or ‘dark tail’ glass, is a specific category of tinted glass which reduces light and heat transmission inside the car.

8.

The decision concerns the supply of carglass for first assembly or replacement to manufacturers of light vehicles, in particular passenger cars and light commercial vehicles, the so-called ‘original equipment’ market (‘OE’-market). Customers were basically all major groups of car manufacturers with European production. There are very few global groups manufacturing carglass, among them AGC, Pilkington and Saint-Gobain, which are also by far the three leading suppliers in Europe. Other suppliers like Soliver have a rather regional footprint.

9.

Competitive conditions for the supply of carglass to car manufacturers are homogenous at EEA level. Therefore, the OE carglass market is considered to be EEA-wide. The total sales of carglass in the EEA amounted to more than EUR 2 billion in 2002, that is the last full year of the infringement.

10.

The addressees referred to below participated in a single and continuous infringement of Article 81 of the Treaty and Article 53 of the Agreement on the European Economic Area (hereinafter ‘EEA Agreement’). The infringement consisted in concerted allocation of contracts concerning the supply of carglass for all major car manufacturers in the EEA, through coordination of pricing policies and supply strategies aimed at maintaining an overall stability of the parties’ position on the market concerned. In this respect, the competitors also monitored the decisions taken during these meetings and contacts and agreed on correcting measures in order to compensate for each other when previously decided allocations of glass pieces proved insufficient in practice to ensure an overall degree of stability in their respective market shares. The period of infringement retained in the decision is from 10 March 1998 to 11 March 2003.

11.

The decision is addressed to the following legal entities which belong to the four participating undertakings:

12.

Liability of the ultimate parent companies is established on the basis of the presumption of the exercise of decisive influence over their wholly-owned subsidiaries, which is reinforced by several additional indicia.

13.

In this case the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (3) (hereafter the ‘2006 Guidelines on Fines’) apply.

14.

According to the 2006 Guidelines on Fines, the basic amount of the fine has to be determined as a proportion of the value of the sales of the relevant product made by each undertaking in the relevant geographic area during the last full business year of the infringement (‘variable amount’), multiplied by the number of years of the 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’).

15.

Pursuant to the 2006 Guidelines on Fines, in determining the basic amount of the fine to be imposed the Commission normally takes into account the value of each undertaking's sales of goods to which the infringement directly or indirectly relates in the geographic area concerned within the EEA for the last full business year of the undertaking's participation in the infringement. However, in view of the particularities of this case, the basic amount was calculated on the basis of an average of the sales during the infringement period, normalised to one year, rather than on the basis of the last full business year of each undertaking's participation in the infringement.

16.

Although the economic aim of the participants in the infringement was from the beginning to keep their respective market shares at EEA-level stable, the Commission has considered the fact that in the first two and a half years, from March 1998 to the first half of 2000, it has direct evidence of cartel activity for only a part of all European car manufacturers. While this does not mean that other car manufacturers were not the subject of cartel discussions in the first two and a half years, the Commission has taken account of those two and a half years as a ‘roll-out phase’ during which the cartelists only progressively developed their collusive behaviour towards all car manufacturers. It is likely that in this trial phase the carglass suppliers rigged the bids only within selected large accounts. Consequently, the Commission takes as relevant sales for the calculation of the fines for the first ramp-up period only sales by carglass suppliers to those car manufacturers for which there is direct evidence that they were subject to cartel arrangements.

17.

At the end of the infringement period, i.e. between the break down of the so-called Club discussions of the three major suppliers on 3 September 2002 and the end of the infringement in March 2003, it can be argued that the cartel activity slowed down after the exit of the important player Pilkington. Therefore, the Commission takes into account as relevant only those sales relating to manufacturers for which there is direct evidence that they were subject to cartel contacts in this period which, again, is a very conservative interpretation of the evidence in favour of the undertakings concerned.

18.

As for the period from 1 July 2000 to 3 September 2002, however, the OE manufacturers discussed at meetings and/or contacts accounted for 90 % or more of the EEA sales of each carglass supplier. In the light of the number of contacts and of the evidence available referred to in the Decision, it is presumed that the whole market was permeated by the cartel arrangements during this period. Therefore, the entire EEA-sales in the period from 1 July 2000 until 3 September 2002 are taken into account.

19.

In sum, the Commission has, in line with the 2006 Guidelines on Fines, applied a more calibrated approach and reduced the weight of the roll-out period between the beginning of the infringement and 30 June 2000 as well as the final stage from September 2002 to 11 March 2003 by only taking account of each carglass supplier's value of sales to those car manufacturers for which there is direct evidence in the Decision of cartel arrangements. The sales relevant for the calculation of the fines are then determined for each carglass supplier on the basis of the total sales in all three periods weighted as described above, divided through the months of participation in the infringement and multiplied by 12 to build an annual average.

20.

According to the Guidelines on Fines, there are several criteria to be taken into account in order to determine the percentage of the relevant sales, i.e. the nature of the infringement (in this case allocation of customers with a view to keep shares of supply as stable as possible), the geographic scope (EEA), the combined market share of the undertakings participating in the infringement (in this case over 60 %) and implementation. The Commission did not take into account implementation when calculating the basic amount of the fine, despite some evidence that the infringement was implemented at times. Having considered these factors, the decision applies in this case a variable amount of 16 %.

21.

Taking into account that the infringement lasted for up to 5 years, but not all participants were involved during the entire period, the variable amount was multiplied by 5 in the case of Asahi and Saint-Gobain, by 4,5 in the case of Pilkington and by 1,5 in the case of the Soliver.

22.

In order to deter undertakings from entering into horizontal customer allocation agreements such as the one at issue in this case, the basic amount of the fines to be imposed was increased by an additional amount, as indicated in point 25 of the 2006 Guidelines on Fines. For this purpose, an additional amount of 16 % of the value of sales was considered appropriate.

23.

At the time the infringement took place, Saint-Gobain had already been the addressee of two previous Commission decisions concerning cartel activities which are relevant as aggravating circumstances in this case (4). The fact that an undertaking has been repeating the same or similar type of anticompetitive conduct shows that the penalties it had been subjected to in the past did not prompt it to change its anticompetitive conduct. That kind of anticompetitive conduct constitutes an aggravating circumstance that can justify an increase of 60 % in the basic amount of the fine to be imposed on this undertaking.

24.

There are no mitigating circumstances to be applied in this case.

25.

The 10 % worldwide turnover limit provided for in Article 23(2) of Regulation (EC) No 1/2003 is applied to the fines calculated as appropriate. In this case, the ceiling of 10 % of turnover is attained in respect of the fine to be imposed on Soliver. The fine imposed on Soliver must therefore not exceed EUR 4,396 million.

26.

As mentioned under point 3 above, Asahi and its subsidiary Glaverbel applied for immunity and in the alternative for a reduction of fines under the 2002 Leniency Notice.

27.

The Commission rejected Glaverbel and Asahi's application for immunity under points 8(a) and (b) of the Leniency Notice for the following reasons.

28.

As inspections had already been carried out before Asahi/Glaverbel's application, immunity under point 8(a) was no longer available.

29.

Points 8(b) and 10 of the Leniency Notice specify that immunity from fines will only be granted on the cumulative conditions that the Commission did not have, at the time of the application, sufficient evidence to find an infringement of Article 81 of the Treaty in connection with the alleged cartel and that the evidence submitted may, in the Commission's view, enable it to make such a finding. However, at the time of the leniency application, the Commission already had in its possession contemporaneous evidence copied during the first inspection which enabled the Commission to find an infringement of Article 81 of the Treaty. Immunity under point 8(b) was therefore at the time of the application no longer available for the infringement referred to in this Decision.

30.

Asahi/Glaverbel was the first and only undertaking to meet the requirements of point 21 of the Leniency Notice. Considering the value of their contribution to the Commission's case, the early stage at which they provided this contribution and the extent of their cooperation following their submissions, the Commission has decided to grant Asahi and Glaverbel a reduction of 50 % of the fine that would otherwise have been imposed.

31.

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

32.

For the infringements referred to in the previous recital, the following fines are imposed:

33.

The undertakings listed above were ordered to bring to an end the infringements referred to in point 10 above, in so far as they have not already done so, and to refrain from repeating any act or conduct described in point 10 above and from any act or conduct having the same or similar object or effect.

25.7.2009   

EN

Official Journal of the European Union

C 173/17

A.

Trigonometric point at elevation 832 m above sea level at Monte delle Rocche, south-west of the built-up area of S. Caterina Villarmosa, identical to point E of the Casteltermini licence and point D of the Petralia Soprana licence application.

B.

Point located on the north-western edge of the building at 409 m elevation adjacent to State Highway 121 in the Contrada S. Benedetto district, identical to point C of the Petralia Soprana licence application.

C.

Trigonometric point at 1 122 m elevation at Monte Della Grassa, NE of the built-up area of Gangi, identical to point B of the Petralia Soprana licence application.

D.

Point located on the west-south-western edge of the building at 813 m elevation in the Contrada Cara district, identical to point N of the Samperi licence.

E.

Trigonometric point at 925 m elevation above sea level at Serra della Croce, identical to point M of the Samperi licence.

F.

South-western edge of the house at elevation 952 m above sea level in the Contrada Larcirù area, identical to point B of the Gagliano licence.

G.

Northern edge of the house at elevation 827 m above sea level in the Contrada Piccioniere area, identical to point A of the Gagliano licence.

H.

Trigonometric point at elevation 910 m above sea level at ‘Femminamorta’, identical to point L of the Gagliano licence.

I.

East-south-eastern edge of the house at elevation 643 m above sea level in the Contrada Casale area, identical to point I of the Gagliano licence.

L.

Southern edge of the house at elevation 630 m above sea level in the Contrada Favara area, identical to point H of the Gagliano licence.

M.

North-western edge of the house at elevation 599 m above sea level in the Contrada Bordino area, identical to point G of the Gagliano licence.

N.

North-eastern edge of the house at elevation 385 m above sea level in the Contrada Garbata area, identical to point F of the Gagliano licence.

O.

North-western edge of the house at elevation 392 m above sea level in the Contrada Cottonera area, identical to point E of the Gagliano licence.

P.

Eastern edge of the house at elevation 531 m above sea level in the Contrada Cangemi area, identical to point T of the Gagliano licence.

Q.

Point located at the belltower of S. Maria della Croce church at Regalbuto, identical to point A of the Paternò licence.

R.

Point located at the crossroads south of Case Longo at elevation 222 m above sea level in Sparagogna, identical to point F of the ‘Enna’ licence application.

S.

Trigonometric point located at elevation 455 m above sea level at Rocca d’Aquila, identical to point E of the ‘Enna’ licence application.

T.

Point located at Dittaino rail station at elevation 255 m above sea level, identical to point D of the ‘Enna’ licence application.

U.

Point located at elevation 387 m above sea level west of the built-up area of Calderari, identical to point C of the ‘Enna’ licence application.

V.

Trigonometric point located at elevation 992 m above sea level at Torre Pisana east of Enna, identical to point B of the ‘Enna’ licence application.

Z.

Intersection point on the northern edge of the Villarosa rail station, identical to point A of the ‘Enna’ licence application.

W.

Trigonometric point located at elevation 661 m above sea level in Cozzo Mola di Geracello, identical to point N of the ‘Enna’ licence application.

25.7.2009   

EN

Official Journal of the European Union

C 173/20

A.

Point located at the 41-kilometre point on State Highway 286 leading to Geraci Siculo.

B.

Trigonometric point at 1 122 m elevation at Monte Della Grassa, north-east of the built-up area of Gangi.

C.

Point located on the north-western edge of the building at 409 m elevation adjacent to State Highway 121 in the Contrada S. Benedetto district.

D.

Trigonometric point at 832 m elevation at Monte Delle rocche, south-west of the built-up area of S. Caterina di Villarmosa; identical to point E of the ‘Casteltermini’ licence.

E.

Point located at the 3-kilometre point on the road leading to Resuttano, south of Cozzo Campanella; identical to point D of the ‘Casteltermini’ licence.

F.

Point located on the north-eastern edge of the building at 616 m elevation of Case Tedesco in Contrada Cannatello; identical to point C of the ‘Casteltermini’ licence.

G.

Point located on the southern edge of the house at 680 m elevation in Contrada S. Filippo south-west of the built-up area of Alimena; identical to point B of the ‘Casteltermini’ licence.

H.

Point located on the eastern edge of the building at 697 m elevation between Contrada Mangiante and Contrada Scorsone; identical to point A of the ‘Casteltermini’ licence.

I.

Trigonometric point at 947 m elevation at Monte Piombino, south-south-east of the built-up area of Caltavuturo.

25.7.2009   

EN

Official Journal of the European Union

C 173/22

A.

Point situated at spot elevation 173 metres above sea level, SE of Guarli along the NE edge of the Palermo-Trapani railway bridge (about 1 km East of the Fulgatore station);

B.

Point situated at spot elevation 295 metres above sea level (NW edge of C. Polizzi), SE of the built-up area of Alcamo;

C.

Point situated two kilometres (milestone) along the SP 19 (between the Salaparuta ruins (Ruderi di Salaparuta) and Salaparuta), in the Contrada of San Giuseppe, SE of Ruderi di Salaparuta;

D.

Point situated at trigonometric point 231 metres above sea level, adjacent to C. del Barone in the Contrada of Baiata, approximately 575 metres south of the crossroads of ‘Le quattro vie’;

E.

Point situated at trigonometric point 151 metres above sea level, in the Contrada of Trinità at the SE edge of the Chiesa della Trinità;

F.

Point consisting of a concrete post fixed onto the well at elevation 200 metres situated 275 metres east of the road from the south to Borgo Aquila in the contrada of the same name. It coincides with point ‘f’ of the area of the ‘Lippone-Mazara del Vallo’ licence;

G.

Point consisting of a concrete post fixed onto the western edge of Case Aquila at elevation 134 metres in the contrada of the same name. It coincides with point ‘g’ of the area of the ‘Lippone-Mazara del Vallo’ licence.

25.7.2009   

EN

Official Journal of the European Union

C 173/24

1.

On 14 July 2009, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertakings Volkswagen Bank GmbH (Germany), belonging to the Volkswagen Group, and Fleet Investments BV (the Netherlands), belonging to the Metzler Group, acquire, within the meaning of Article 3(1)(b) of the Council Regulation, joint control of the undertaking LeasePlan Corporation N.V. (the Netherlands) by way of purchase of shares.

2.

The business activities of the undertakings concerned are:

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved.

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301 or 22967244) or by post, under reference number COMP/M.5568 — Volkswagen/Fleet Investments/Leaseplan Corporation JV, to the following address:

25.7.2009   

EN

Official Journal of the European Union

C 173/25

1.

On 17 July 2009, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking Euroports Holding S.á r.l. (‘Euroports’, Luxembourg) wholly-owned subsidiary of BBI Europe Holdings (Malta II) Ltd (‘BBI Europe’, Luxembourg) acquires within the meaning of Article 3(1)(b) of the Council Regulation sole control of the whole of Benelux Port Holding S.á r.l. (‘BPH’, Luxembourg) by way of purchase of shares.

2.

The business activities of the undertakings concerned are:

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301 or 22967244) or by post, under reference number COMP/M.5581 — Euroports Holding/Benelux Port Holdings, to the following address: