Notice for the attention of the data subjects to whom the restrictive measures provided for in Council Regulation (EC) No 1183/2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo apply

(2018/C 446/01)

The attention of data subjects is drawn to the following information in accordance with Article 12 of Regulation (EC) No 45/2001 of the European Parliament and of the Council (1):

The legal basis for this processing operation is Council Regulation (EC) No 1183/2005 (2).

The controller of this processing operation is the Council of the European Union represented by the Director-General of RELEX (Foreign Affairs, Enlargement, Civil Protection) of the General Secretariat of the Council and the department entrusted with the processing operation is RELEX.1.C that can be contacted at:

Council of the European Union

General Secretariat

RELEX.1.C

Rue de la Loi/Wetstraat 175

1048 Bruxelles/Brussel

BELGIQUE/BELGIË

Email: sanctions@consilium.europa.eu

The purpose of the processing operation is the establishment and updating of the list of persons subject to restrictive measures in accordance with Regulation (EC) No 1183/2005.

The data subjects are the natural persons who fulfil listing criteria as laid down in that Regulation.

The personal data collected includes data necessary for the correct identification of the person concerned, the Statement of Reasons and any other data related thereto.

The personal data collected may be shared as necessary with the European External Action Service and the Commission.

Without prejudice to restrictions provided for in Article 20(1)(a) and (d) of Regulation (EC) No 45/2001, requests for access, as well as requests for rectification or objection will be answered in accordance with section 5 of Council Decision 2004/644/EC (3).

Personal data will be retained for 5 years from the moment the data subject has been removed from the list of persons subject to the asset freeze or the validity of the measure has expired, or for the duration of court proceedings in the event they had been started.

Data subjects may have recourse to the European Data Protection Supervisor in accordance with Regulation (EC) No 45/2001.

---

(1)  OJ L 8, 12.1.2001, p. 1.

(2)  OJ L 193, 23.7.2005, p. 1.

(3)  OJ L 296, 21.9.2004, p. 16.

Notice for the attention of the persons subject to the restrictive measures provided for in Council Decision 2014/145/CFSP, as amended by Council Decision (CFSP) 2018/1930, and in Council Regulation (EU) No 269/2014 as implemented by Council Implementing Regulation (EU) 2018/1929 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine

(2018/C 446/02)

The following information is brought to the attention of the persons that appear in the Annex to Council Decision 2014/145/CFSP (1), as amended by Council Decision (CFSP) 2018/1930 (2), and in Annex I to Council Regulation (EU) No 269/2014 (3), as implemented by Council Implementing Regulation (EU) 2018/1929 (4) concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine.

The Council of the European Union has decided that those persons should be included in the list of persons and entities subject to restrictive measures provided for in Decision 2014/145/CFSP and in Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine. The grounds for designations of those persons appear in the relevant entries in those Annexes.

The attention of the persons concerned is drawn to the possibility of making an application to the competent authorities of the relevant Member State(s) as indicated in the web sites in Annex II to Regulation (EU) No 269/2014, in order to obtain an authorisation to use frozen funds for basic needs or specific payments (cf. Article 4 of the Regulation).

The persons concerned may submit a request to the Council, together with supporting documentation, that the decision to include them on the above-mentioned list should be reconsidered, to the following address:

Council of the European Union

General Secretariat

RELEX.1.C

Rue de la Loi/Wetstraat 175

1048 Bruxelles/Brussel

BELGIQUE/BELGIË

Email: sanctions@consilium.europa.eu

The attention of the persons concerned is also drawn to the possibility of challenging the Council’s decision before the General Court of the European Union, in accordance with the conditions laid down in Article 275, second paragraph, and Article 263, fourth and sixth paragraphs, of the Treaty on the Functioning of the European Union.

---

(1)  OJ L 78, 17.3.2014, p. 16.

(2)  OJ L 314 I, 11.12.2018, p. 5.

(3)  OJ L 78, 17.3.2014, p. 6.

(4)  OJ L 314 I, 11.12.2018, p. 1.

Euro exchange rates (1)

10 December 2018

(2018/C 446/03)

1 euro =

	Currency	Exchange rate
USD	US dollar	1,1425
JPY	Japanese yen	128,79
DKK	Danish krone	7,4639
GBP	Pound sterling	0,90245
SEK	Swedish krona	10,3330
CHF	Swiss franc	1,1295
ISK	Iceland króna	140,00
NOK	Norwegian krone	9,6885
BGN	Bulgarian lev	1,9558
CZK	Czech koruna	25,866
HUF	Hungarian forint	323,15
PLN	Polish zloty	4,2921
RON	Romanian leu	4,6502
TRY	Turkish lira	6,0499
AUD	Australian dollar	1,5842
CAD	Canadian dollar	1,5218
HKD	Hong Kong dollar	8,9283
NZD	New Zealand dollar	1,6581
SGD	Singapore dollar	1,5667
KRW	South Korean won	1 287,42
ZAR	South African rand	16,3463
CNY	Chinese yuan renminbi	7,8967
HRK	Croatian kuna	7,3870
IDR	Indonesian rupiah	16 671,36
MYR	Malaysian ringgit	4,7671
PHP	Philippine peso	60,367
RUB	Russian rouble	75,8985
THB	Thai baht	37,525
BRL	Brazilian real	4,4524
MXN	Mexican peso	23,1320
INR	Indian rupee	82,7284

---

(1)  Source: reference exchange rate published by the ECB.

Opinion of the Advisory Committee on restrictive practices and dominant positions at its meeting on 12 March 2018 concerning the draft decision relating to Case AT.40136 — Capacitors

Rapporteur: Italy

(2018/C 446/04)

Opinion of the Advisory Committee on restrictive practices and dominant positions at its meeting on 16 March 2018 concerning the draft decision relating to Case AT.40136(2) — Capacitors

Rapporteur: Italy

(2018/C 446/05)

Final Report of the Hearing Officer (1)

Case AT.40136 — Capacitors

(2018/C 446/06)

Introduction

(1)

The draft decision finds a cartel in the market for electrolytic capacitors, involving fifteen legal entities (together, ‘the addressees of the decision’), belonging to nine undertakings: — Elna Co., Ltd (‘Elna’), — Hitachi Chemical Electronics Co. Ltd (former Hitachi AIC Inc.) and Hitachi Chemical Co. Ltd (together ‘Hitachi’), — Vishay Polytech Co., Ltd (former Holy Stone Polytech Co. Ltd), Holy Stone Holdings Co., Ltd and Holy Stone Enterprise Co., Ltd (together ‘Holy Stone’), — Matsuo Electric Co., Ltd (‘Matsuo’), — Tokin Corporation (former NEC Tokin Corporation) and NEC Corporation (together ‘NEC Tokin’), — Nichicon Corporation (‘Nichicon’), — Nippon Chemi-Con Corporation (‘NCC’), — Rubycon Corporation and Rubycon Holdings Co., Ltd (together ‘Rubycon’), — Sanyo Electric Co., Ltd and Panasonic Corporation (together ‘Panasonic/Sanyo’).

(2)

The investigation started on the basis of an application for immunity submitted by Panasonic/Sanyo on 4 October 2013. Following requests for information sent on 28 March and 1 April 2014, the Commission received further leniency applications from Hitachi, Holy Stone, NEC Tokin, Rubycon and Elna. The Commission sent further requests for information to the addressees of the decision and other market participants. From 3 to 6 March 2015, the Commission carried out inspections at the premises of […] NCC.

Statement of objections

(3)

On 4 November 2015, the Commission adopted a statement of objections (‘the SO’), which was notified to the addressees of the decision and to five more legal entities (together ‘the addressees of the SO’).

(4)

According to the SO, the addressees of the SO engaged […] in agreements and/or concerted practices which took the form of multilateral meetings and bi-/tri-lateral contacts, where they exchanged information on market trends, global production and sales, and price, in order to coordinate their future conduct as to the sale of electrolytic capacitors. This behaviour was considered to amount to a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement.

Access to the file (and to the full text of the SO)

(5)

The addressees of the SO were granted access to most of the file via an access-to-file DVD and to the corporate statements of the leniency applicants at the premises of the Directorate-General for Competition (‘DG Competition’) between 12 November and 17 December 2015 (2).

(6)

Both the SO and the access-to-file DVD contained numerous redactions concealing (mainly Rubycon’s) customer names that DG Competition had accepted to treat as ‘provisionally confidential’. Invoking their rights of defence, several addressees of the SO requested access to the redacted customer names. Following these requests to have access to the redacted customer names, the access-to-file DVD was supplemented by two more DVDs, made available to all addressees of the SO on 4 March and 26 April 2016.

(7)

Following the provision of the DVD of 26 April 2016, the Commission sent all addressees of the SO a letter of facts (‘the First LoF’) on 4 May 2016. This First LoF contained a new version of the SO (including its Annex 1), which incorporated all customer names, as well as references to the numbers of Japanese original documents and updated references to the numbers of relevant English translations in the footnotes. It also contained an updated correspondence table.

(8)

It would have been preferable to ensure that all confidentiality claims had been properly dealt with before adopting the SO (3), so as to avoid having ‘provisionally confidential’ information in the SO and to avoid the considerable time and effort that had to be spent during half a year following the sending of the SO on solving this issue. That the customer names would be relevant for the rights of defence of the addressees of the SO could have been fully anticipated. Moreover, customer names are information of the type the Commission normally does not, unless duly justified, accept as business secrets and other confidential information (4).

(9)

In any event, the provision of the DVD of 26 April 2016 and the sending of the First LoF on 4 May 2016, which in fact amounted to a re-sending of the SO, now containing its full text, solved the problem. In the end, the rights of the defence of the addressees of the SO were thus safeguarded.

Time-limits for replying to the SO

(10)

DG Competition initially set an eight-week period to respond to the SO. This deadline was extended following the provision of the first additional DVD of 4 March 2016 and was further extended at the request of several addressees of the SO, with deadlines varying from 29 March to 12 April 2016. Following a request from NCC, I suspended the time period in which NCC had to provide its response to the SO until the ongoing discussion on the remaining confidentiality claims regarding customer names (see paragraphs 6 to 9 above) was closed.

(11)

Following the sending of the First LoF, all the addressees of the SO other than NCC were allowed to comment on the First LoF and to supplement their response to the SO by 18 May 2016. The deadline for NCC to make known its views on both the SO and the First LoF was set at 20 May 2016. Elna, Hitachi, Matsuo, NEC Corporation, Nichicon and Rubycon did not submit replies to the First LoF.

Oral hearing

(12)

The oral hearing took place from 12 to 14 September 2016. All the addressees of the SO participated, except Matsuo, which had not made in its written reply to the SO a request to be heard orally.

Access to the replies of the other addressees of the SO

(13)

On 1 September 2016, NCC requested DG Competition to grant it access to the non-confidential version of the replies to the SO, annexes included, of the other addressees of the SO. Following the rejection of this request by DG Competition on 5 September 2016, NCC referred the matter to me on 19 September 2016. On 10 October 2016, I for the most part rejected NCC’s request (5).

(14)

The EU Courts, in interpreting the right of access to the file as laid down in Article 27(2) of Regulation (EC) No 1/2003 (6) and Article 41(2)(b) of the Charter of Fundamental Rights of the EU, have consistently distinguished between, on the one hand, documents that were part of the file at the time of notification of the statement of objections, and, on the other hand, documents that are later added to the file, including in particular other parties’ replies to the statement of objections (7). This distinction is indeed logical, given that access to the file is not an end in itself, but is intended to protect the rights of the defence (8), more specifically to allow the addressees of a statement of objections to examine evidence held by the Commission so that they are in a position effectively to express their views on the conclusions which the Commission reaches in the statement of objections on the basis of that evidence (9). As to documents that are added to the file after the notification of the statement of objections, including in particular other parties’ replies to the statement of objections, the Commission is only required to give access to such documents if it transpires that they contain new incriminating or exculpatory evidence (10) or if they are essential to put the applicant in a position to dispute the figures used by the Commission in the statement of objections (11). A document cannot be regarded as an incriminating document unless it is used by the Commission in support of its finding of an infringement by an undertaking (12). As regards new exculpatory evidence, respect for the rights of the defence cannot, as a rule, lead to an obligation on the Commission to disclose documents that are added to the file after the notification of the statement of objections to parties so that they can ascertain that there is no exculpatory evidence (13). To the extent that parties rely on the existence of alleged exculpatory evidence in such documents, it is for them to provide prima facie evidence of the relevance of those documents for their defence. Parties must, in particular, indicate the potential exculpatory evidence in question or adduce evidence that it exists and therefore of its relevance for the purposes of the case (14).

(15)

The elements put forward by NCC did not amount to prima facie evidence of the existence of new exculpatory evidence in the other parties’ replies to the SO. In particular, the existence of divergent interests among the parties to cartel proceedings does not of itself amount to prima facie evidence that their respective responses to a statement of objections contain exculpatory evidence with respect to some or all other parties (15).

(16)

In any event, having reviewed all the written replies of the other addressees to the SO and to the First LoF, I identified two passages and one annex in the response of one addressee of the SO that arguably contained new exculpatory evidence vis-à-vis NCC in that these added a declaration by a former employee or drew on further interviews with another employee. I thus decided that access to these had to be granted. Following my decision, DG Competition granted NCC access to the non-confidential version of these passages and annex and allowed NCC to provide its written comments on these.

Additional letters of facts

(17)

On 28 February 2017, the Commission sent a second letter of facts (‘the Second LoF’) to the addressees of the SO identifying certain specific items of evidence on which it might rely to support objections stated in the SO. All the addressees of the SO, except Matsuo, NEC Corporation and Rubycon, submitted replies to this Second LoF.

(18)

On 1 December 2017, the Commission sent a third letter of facts (the ‘Third LoF’) to the addressees of the SO identifying further items of evidence on which it might rely to support objections stated in the SO. On the same day, the addressees of the SO received four documents by email and were invited to have access to some of the other additional evidence that had formed the basis of Annex II of the Third LoF at the premises of DG Competition. Nearly all addressees of the SO had access at the said premises between 5 and 12 December 2017. All the addressees of the SO, except Elna and NEC Corporation, submitted replies to the Third LoF.

The draft decision

(19)

Compared with the SO, the draft decision is addressed to five fewer legal entities. It also decreases the duration of the infringement by […]. In addition, the scope of Nichicon’s involvement in the single and continuous infringement has been reduced. Finally, the amounts of the fines in the draft decision take account of mitigating circumstances in respect of NEC Tokin, Nichicon, Matsuo and Panasonic/Sanyo.

(20)

Pursuant to Article 16 of Decision 2011/695/EU, I have examined whether the draft decision deals only with the objections in respect of which the addressees of the decision have been afforded the opportunity of making known their views, and I have come to a positive conclusion.

(21)

Overall, I conclude that all the addressees of this decision have been able to effectively exercise their procedural rights in this case.

---

(1)  Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29) (‘Decision 2011/695/EU’).

(2)  The access-to-file DVD had to be replaced twice following two incidents of inadvertent disclosure of confidential information. These incidents appear to have been dealt with appropriately by DG Competition. I did not receive any complaints concerning these incidents.

(3)  As recommended in DG Competition’s Antitrust Manual of Procedures (Chapter 12, paragraph 50), available (public version) at http://ec.europa.eu/competition/antitrust/antitrust_manproc_3_2012_en.pdf

(4)  Standard annex on business secrets and other confidential information, enclosed in all requests for information, available on DG Competition’s webpages at: http://ec.europa.eu/competition/antitrust/business_secrets_en.pdf See also judgment in case T-465/12 AGC Glass Europe v Commission (EU:T:2015:505, paragraphs 36-40).

(5)  Following a request from NCC of 16 December 2016 to reconsider my decision, I confirmed my decision by letter of 9 February 2017.

(6)  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).

(7)  Among others, judgments in Heineken Nederland and Heineken v Commission, T-240/07, EU:T:2011:284, paragraphs 241 and 242; Hoechst v Commission, T-161/05, EU:T:2009:366, paragraph 163; as well as Shell Petroleum and Others v Commission, T-343/06, EU:T:2012:478, paragraph 84.

(8)  Judgments in Aalborg Portland and Others v Commission, C-204/00 P, EU:C:2004:6, paragraph 68; Atlantic Container Line and Others v Commission, T-191/98 and T-212/98 to T-214/98, EU:T:2003:245, paragraphs 376 and 377; as well as Solvay v Commission, T-186/06, EU:T:2011:276, paragraph 214.

(9)  Judgments in Solvay v Commission, T-30/91, EU:T:1995:115, paragraph 59, as well as Cimenteries CBR and Others v Commission, T-25/95 etc., EU:T:2000:77, paragraphs 156 and 142.

(10)  Judgment in Shell Petroleum and Others v Commission, T-343/06, EU:T:2012:478, paragraph 85.

(11)  Judgment in Ziegler v Commission, T-199/08, EU:T:2011:285, paragraph 118.

(12)  Among others, judgments in Heineken Nederland and Heineken v Commission, T-240/07, EU:T:2011:284, paragraph 245, and Fresh Del Monte Produce v Commission, T-587/08, EU:T:2013:129, paragraph 665.

(13)  Judgment in Heineken Nederland and Heineken v Commission, T-240/07, EU:T:2011:284, paragraph 255.

(14)  Idem, paragraphs 256 and 257.

(15)  Judgments in Shell Petroleum and Others v Commission, T-343/06, EU:T:2012:478, paragraphs 84 and 85, and Koninklijke Wegenbouw Stevin v Commission, T-357/06, EU:T:2012:488, paragraphs 164 and 165.

Summary of Commission Decision

of 21 March 2018

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.40136 — Capacitors)

(notified under document number C(2018) 1768 final)

(Only the English text is authentic)

(Text with EEA relevance)

(2018/C 446/07)

On 21 March 2018, the Commission adopted a decision relating to a proceeding 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)

The Decision relates to a single and continuous infringement of Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement concerning electrolytic capacitors: aluminium electrolytic capacitors (‘AECs’) and tantalum electrolytic capacitors (‘TECs’). The infringement lasted from 26 June 1998 to 23 April 2012 and comprised exchange of commercially sensitive information (including on price and demand/supply) and pricing agreements.

(2)

The decision is addressed to the following entities: Elna Co., Ltd (‘Elna’); Hitachi Chemical Electronics Co., Ltd and Hitachi Chemical Co., Ltd (together referred to as ‘Hitachi AIC’); Vishay Polytech Co., Ltd, Holy Stone Holdings Co., Ltd and Holy Stone Enterprise Co., Ltd (together referred to as ‘Holy Stone’); Matsuo Electric Co., Ltd (‘Matsuo’); Tokin Corporation and NEC Corporation (together referred to as ‘NEC Tokin’); Nichicon Corporation (‘Nichicon’); Nippon Chemi-Con Corporation (‘NCC’); Rubycon Corporation and Rubycon Holdings Co., Ltd (together referred to as ‘Rubycon’), and Sanyo Electric Co., Ltd and Panasonic Corporation (together referred to as ‘Sanyo’) (also referred to as the ‘parties’ or individually the ‘party’) (2).

2.   CASE DESCRIPTION

2.1.   Procedure

(3)

The case started following an immunity application submitted by Sanyo on 4 October 2013. On 28 March 2014 and 1 April 2014, the Commission sent requests for information under Article 18 of Regulation (EC) No 1/2003 (3). These requests for information were followed by leniency applications from Hitachi AIC, Holy Stone, NEC Tokin, Rubycon and Elna.

(4)

The Commission subsequently issued further requests for information and letters under point 12 of the 2006 Leniency Notice (4). The Commission carried out inspections under Article 20(4) of Regulation (EC) No 1/2003 from 3 until 6 March 2015.

(5)

On 4 November 2015, the Commission initiated proceedings pursuant to Article 11(6) Regulation (EC) No 1/2003 in this case and adopted a Statement of Objections (‘SO’).

(6)

On 4 May 2016, 28 February 2017 and 1 December 2017, the Commission sent Letters of Facts relating to certain aspects of the SO to all the addressees of the SO. The addressees of the Letters of Facts made known their views to the Commission in writing.

(7)

An Oral Hearing took place on 12-14 September 2016 and all the parties, except Matsuo, attended.

(8)

The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 12 and 16 March 2018 respectively.

(9)

The Commission adopted the Decision on 21 March 2018.

2.2.   Addressees

(10)

The following legal entities have infringed Article 101 of the Treaty and Article 53 of the EEA Agreement, by participating, during the periods indicated below, in a single and continuous infringement in the electrolytic capacitors sector covering the whole EEA: (a) Elna Co., Ltd from 26 June 1998 to 23 April 2012; (b) Hitachi Chemical Electronics Co., Ltd from 22 November 2000 to 18 February 2010, Hitachi Chemical Co., Ltd from 1 August 2001 to 18 February 2010; (c) Vishay Polytech Co., Ltd, Holy Stone Holdings Co., Ltd, Holy Stone Enterprise Co., Ltd from 16 November 2010 to 23 April 2012; (d) Matsuo Electric Co., Ltd from 29 January 2003 to 23 April 2012; (e) Tokin Corporation from 29 January 2003 to 23 April 2012, NEC Corporation from 1 August 2009 to 23 April 2012; (f) Nichicon Corporation from 26 June 1998 to 31 May 2010; (g) Nippon Chemi-Con Corporation from 26 June 1998 to 23 April 2012; (h) Rubycon Corporation from 26 June 1998 to 23 April 2012, Rubycon Holdings Co., Ltd from 1 February 2007 to 23 April 2012; (i) Sanyo Electric Co., Ltd from 19 September 2001 to 19 April 2011, Panasonic Corporation from 1 April 2011 to 19 April 2011.

2.3.   Summary of the infringement

(11)

The Decision finds that between 26 June 1998 and 23 April 2012 the parties coordinated their behaviour on a global basis (including the EEA) in relation to the supply of electrolytic capacitors. The cartel operated with a single economic aim to avoid price competition and to coordinate future conduct, thereby reducing uncertainty on the market.

(12)

The products concerned by the cartel are two basic forms of electrolytic capacitors (AECs and TECs). Capacitors are electrical components that store energy in an electric field, and are used in a wide variety of electronic products.

(13)

The cartel operated on the basis of multilateral meetings accompanied by ad hoc bi-/tri-lateral contacts between the parties, which often discussed specific issues (such as future prices for particular customers or contracts). Multilateral meetings were held regularly in Japan at senior sales and higher management level, including the presidents, and were, at different times, attended by all the parties.

(14)

The framework of multilateral meetings and bi-/tri-lateral contacts was established to exchange commercially sensitive information and to find a coordinated response to the issues the parties were confronted with (rising raw material prices, fluctuation of currency exchange rates, pressure from other competitors).

(15)

The coordination between the cartel participants was frequent, regular and systematic. It covered exchanges of information, including on future prices, future supply and demand information across various customers and types of AECs and TECs. In some instances, some participants even concluded price agreements and monitored their implementation. The collusive behaviour created a climate of mutual certainty within which the competitors knowingly substituted practical cooperation between them for the risks of competition.

2.4.   Remedies

(16)

The Decision applies the 2006 Guidelines on Fines (5).

2.4.1.   Basic amount of the fine

(17)

The basic amount of the fines is determined by reference to the value of AECs' and TECs' sales generated by the undertakings in the EEA in the last full business year of their participation in the infringement. The value of the relevant sales was determined on the basis of sales for AECs and TECs invoiced to customers in the EEA. The invoicing criterion accurately reflects the reality of the cartel.

(18)

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

(19)

The variable amount is multiplied by the number of years or by fractions of the year respectively of the parties' participation in the infringement in order to take fully into account the duration of the participation for each undertaking in the infringement individually. The Commission takes into account the actual duration of participation in the infringement of the parties on the basis of the full years, months and days.

(20)

The Commission takes into account variations in duration of the AEC and TEC-related contacts and distinct duration multipliers are thus applied in the fines calculation for the AEC and TEC-related contacts.

2.4.2.   Adjustments to the basic amount

(21)

An aggravating circumstance for recidivism is applied to NEC Corporation, on account of its participation in the DRAMs cartel that was the subject matter of a Commission decision adopted on 19 May 2010.

(22)

A mitigating factor is applied to Sanyo, NEC Tokin, Matsuo and Nichicon in order to reflect their lack of awareness of and liability for part of the single and continuous infringement relating to certain series of meetings.

2.4.3.   Specific increase for deterrence

(23)

In this case, a deterrence multiplier of 1,2 is applied to Sanyo.

2.4.4.   Application of the 10 % turnover limit

(24)

The final individual amounts of the fines, calculated prior to the application of the reductions under the Leniency Notice, exceed 10 % of the worldwide turnover for Elna, NCC and Rubycon. Therefore their fines have been reduced to that percentage.

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

(25)

Sanyo was the first to submit information and evidence meeting the conditions of point 8(a) of the 2006 Leniency Notice and is thus granted immunity from fines.

(26)

Hitachi AIC was the first undertaking to meet the requirements of points 24 and 25 of the 2006 Leniency Notice and is granted a reduction of 35 % of the fine.

(27)

Rubycon was the second undertaking to meet the requirements of points 24 and 25 of the Leniency Notice and is granted a reduction of 30 % of the fine. Moreover, pursuant to point 26 of the Leniency notice, the period from 26 June 1998 to 28 August 2003 is not taken into account when setting the fine for Rubycon as it provided evidence enabling the Commission to establish additional facts increasing the duration of the infringement for that period.

(28)

Elna was the third undertaking to meet the requirements of points 24 and 25 of the Leniency Notice and is granted a reduction of 15 % of the fine.

(29)

NEC Tokin was the fourth undertaking to meet the requirements of points 24 and 25 of the Leniency Notice and is granted a reduction of 15 % of the fine.

(30)

Holy Stone has not submitted evidence that represents, within the meaning of points 24 and 25 of the Leniency Notice, significant added value with respect to the evidence already in the Commission's possession. Hence, Holy Stone was not granted any reduction of the fine imposed on it.

2.4.6.   Ability to pay pursuant to point 35 of the Guidelines on fines

(31)

Two undertakings submitted an application for a reduction of their fine on the grounds of inability to pay. The Commission assessed the applications submitted and concluded that they should be rejected.

3.   CONCLUSION

(32)

The following fines were imposed pursuant to Article 23(2) of Regulation (EC) No 1/2003. (a) Elna Co., Ltd: EUR 18 162 000; (b) Hitachi Chemical Electronics Co., Ltd and Hitachi Chemical Co., Ltd, jointly and severally: EUR 17 310 000; (c) Hitachi Chemical Electronics Co., Ltd: EUR 1 166 000; (d) Vishay Polytech Co., Ltd, Holy Stone Holdings Co., Ltd and Holy Stone Enterprise Co., Ltd, jointly and severally: EUR 782 000; (e) Matsuo Electric Co., Ltd: EUR 824 000; (f) Tokin Corporation and NEC Corporation, jointly and severally: EUR 5 036 000; (g) Tokin Corporation: EUR 8 814 000; (h) NEC Corporation: EUR 2 595 000; (i) Nichicon Corporation: EUR 72 901 000; (j) Nippon Chemi-Con Corporation: EUR 97 921 000; (k) Rubycon Corporation and Rubycon Holdings Co., Ltd, jointly and severally: EUR 27 718 000; (l) Rubycon Corporation: EUR 706 000; (m) Sanyo Electric Co., Ltd and Panasonic Corporation, jointly and severally: EUR 0.

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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)  Certain addressees manufactured both types of capacitors (TECs and AECs) throughout the entire duration of the infringement or during parts thereof. Certain other addressees, however, manufactured only one type of capacitor (TECs or AECs) throughout the entire duration of the infringement.

(3)  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).

(4)  Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ C 298, 8.12.2006, p. 17).

(5)  OJ C 210, 1.9.2006, p. 2.

Prior notification of a concentration

(Case M.9191 — SoftwareONE/Comparex)

Candidate case for simplified procedure

(Text with EEA relevance)

(2018/C 446/08)

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(1)  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’).

(2)  OJ C 366, 14.12.2013, p. 5.

INFORMATION NOTICE — PUBLIC CONSULTATION

Names from Mexico to be protected as geographical indications of spirit drinks in the European Union

(2018/C 446/09)

In the regular process of updating the spirit drinks lists in Annexes I and II to the Agreement between the European Community and the United Mexican States on the mutual recognition and protection of designations for spirit drinks of 1997 (hereafter ‘the 1997 Spirits Agreement’), Mexico has submitted, for protection under the 1997 Spirits Agreement, the attached list of names. The European Commission is currently considering whether these names should be protected under the 1997 Spirits Agreement as Geographical Indications within the meaning of Article 22(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights.

The Commission invites any Member State or third country or any natural or legal person having a legitimate interest, resident or established in a Member State or in a third country, to submit opposition to such protection by lodging a duly substantiated statement.

Statements of opposition must reach the Commission within one month of the date of this publication. Statements of opposition should be sent to the following email address: AGRI-A3@ec.europa.eu

Statements of opposition will be examined only if they are received within the time limit set out above and if they show that the protection of the name proposed would:

(a)	conflict with the name of a plant variety or an animal breed and as a result is likely to mislead the consumer as to the true origin of the product;

(b)

be wholly or partially homonymous with that of a name already protected in the Union under Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89 (1), or contained in the agreements the Union has concluded with the following countries: — Switzerland (2) — Korea (3) — Central America (4) — Chile (5) — Colombia, Peru and Ecuador (6) — Serbia (7) — Moldova (8) — Georgia (9) — Liechtenstein (10) — USA (11) — Canada (12) — Ukraine (13)

(c)	in the light of a trade mark’s reputation and renown and the length of time it has been used, be liable to mislead the consumer as to the true identity of the product;

(d)	jeopardise the existence of an entirely or partly identical name or of a trade mark or the existence of products which have been legally on the market for at least five years preceding the date of the publication of this notice;

(e)	or if they can give details from which it can be concluded that the name for which protection is considered is generic.

The criteria referred to above will be evaluated in relation to the territory of the Union, which in the case of intellectual property rights refers only to the territory or territories where the said rights are protected. The possible protection of these names in the European Union is subject to the conclusion of a legal act amending the Annexes to the 1997 Spirits Agreement.

List of names from Mexico to be protected as Geographical Indications in the European Union for spirit drinks (14)

Name	Short description
Bacanora	Agave spirit drink
Raicilla Jalisco	Agave spirit drink
Vinatas de Michoacán Región de Origen	Agave spirit drink

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(1)  OJ L 39, 13.2.2008, p. 16.

(2)  Council Decision of 25 May 2009 on the conclusion of the Agreement between the European Community and the Swiss Confederation amending the Agreement between the European Community and the Swiss Confederation on trade in agricultural products (OJ L 136, 30.5.2009, p. 1).

(3)  Council Decision 2011/265/EU of 16 September 2010 on the signing, on behalf of the European Union, and provisional application of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part (OJ L 127, 14.5.2011, p. 1).

(4)  Agreement establishing an Association between the European Union and its Member States, on the one hand, and Central America on the other (OJ L 346, 15.12.2012, p. 3).

(5)  Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Chile, of the other part — Final act (OJ L 352, 30.12.2002, p. 3).

(6)  Trade Agreement between the European Union and its Member States, of the one part, and Colombia and Peru, of the other part (OJ L 354, 21.12.2012, p. 3).

(7)  Council and Commission Decision 2013/490/EU, Euratom of 22 July 2013 on the conclusion of the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Serbia, of the other part (OJ L 278, 18.10.2013, p. 14).

(8)  Decision No 1/2016 of the Geographical Indications Sub-Committee of 18 October 2016 amending Annexes XXX-C and XXX-D to the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part [2016/2127] (OJ L 335, 9.12.2016, p. 1).

(9)  Decision No 1/2016 of the Geographical Indications Sub-Committee of 10 November 2016 amending Annex XVII-C and Part B of Annex XVII-D to the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Georgia, of the other part [2016/2128] (OJ L 335, 9.12.2016, p. 133).

(10)  Additional Agreement between the European Community, the Swiss Confederation and the Principality of Liechtenstein extending to the Principality of Liechtenstein the Agreement between the European Community and the Swiss Confederation on trade in agricultural products (OJ L 270, 13.10.2007, p. 6).

(11)  Agreement in The Form of an Exchange of Letters between the European Community and the United States of America on the mutual recognition of certain distilled spirits/spirit drinks (OJ L 157, 24.6.1994, p. 37).

(12)  Agreement between the European Community and Canada on trade in wines and spirit drinks (OJ L 35, 6.2.2004, p. 3).

(13)  Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part (OJ L 161, 29.5.2014, p. 3).

(14)  List provided by the Mexican authorities in the framework of the updating of Annexes I and II to the 1997 Spirits Agreement. The names included in the list are registered in Mexico.