27.3.2013   

EN

Official Journal of the European Union

C 89/5

(1)

The decision pursuant to Article 9 of Council Regulation (EC) No 1/2003 is addressed to Rio Tinto plc (‘Rio Tinto’), Rio Tinto International Holdings Limited, Rio Tinto Alcan Inc, Rio Tinto France SAS, Aluminium Pechiney SAS (‘AP’) and Electrification Charpente Levage SASU (‘ECL’) (collectively, ‘Rio Tinto Alcan’). It renders the commitments offered by Rio Tinto Alcan binding in order to address the competition concerns arising from an investigation by the Commission in the markets for aluminium smelting technology and pot tending assemblies.

(2)

Pot tending assemblies (‘PTAs’) are specialty cranes used in aluminium reduction plants (smelters), where primary aluminium is produced. AP, a subsidiary of Rio Tinto Alcan, contractually ties the licensing of its leading aluminium smelting technology to the purchase of pot handling equipment (notably PTAs) from ECL, its subsidiary. The Commission was concerned that by doing so the company may have infringed EU antitrust rules that prohibit restrictive business practices and the abuse of a dominant market position.

(3)

On 20 February 2008, the Commission opened proceedings with a view to taking a decision under Chapter III of Regulation (EC) No 1/2003 and notified a statement of objections to Alcan Inc, Alcan France SAS, AP and ECL.

(4)

After carrying out an additional investigation, the Commission adopted, on 11 July 2012, a preliminary assessment as referred to in Article 9(1) of Regulation (EC) No 1/2003, which set out the Commission’s competition concerns. These concerns related to the compatibility with Articles 101 and 102 of the Treaty on the Functioning of the European Union (‘TFEU’) and Articles 53 and 54 of the EEA Agreement of the contractual tying of the licensing of aluminium smelting technology to the acquisition of PTAs.

(5)

The Commission preliminarily concluded that Rio Tinto Alcan was dominant in the market for the tying product (namely the licensing of aluminium technology), that the latter and the tied product (i.e. the PTAs) were distinct products and that Rio Tinto Alcan’s practice may likely led to the marginalisation and, potentially, the exit from the market of Réel, the complainant, which is so far Rio Tinto Alcan’s only credible competitor in the market for PTAs. In addition, the Commission preliminarily concluded that the customers’ choice of PTA suppliers had been directly and substantially limited by Rio Tinto Alcan’s tying practice, with likely negative implications on innovation and, potentially, prices, in the PTA and smelting technology markets. This would amount to anti-competitive foreclosure of the PTA market by Rio Tinto Alcan in contravention of Articles 101 and 102 of the TFEU and Articles 53 and 54 of the EEA Agreement.

(6)

On 3 August 2012, in response to the Commission’s concerns expressed in the preliminary assessment, Rio Tinto Alcan submitted commitments to the Commission. On 10 August 2012, a notice pursuant to Article 27(4) of Regulation (EC) No 1/2003 was published in the Official Journal of the European Union, summarising the case and the commitments and inviting interested third parties to submit their observations on the commitments within one month following its publication.

(7)

The Commission informed Rio Tinto Alcan of the comments received from interested third parties. On 9 November 2012, Rio Tinto Alcan submitted a revised commitments proposal which addressed several issues raised by third parties.

(8)

On 28 November 2012, the Advisory Committee on restrictive practices and dominant positions issued a favourable opinion. On 29 November 2012, the Hearing Officer issued his final report.

(9)

On 20 December 2012, the Commission made Rio Tinto Alcan’s revised commitments binding by decision pursuant to Article 9 of Regulation (EC) No 1/2003. Rio Tinto Alcan commits, for a period of five years, to remove the tying clauses from its future technology transfer agreements (2) and to introduce an objective and non-discriminatory process for selecting qualified suppliers of PTAs. Rio Tinto Alcan’s licensees will then be able to choose among the recommended PTA suppliers, which will be provided by Rio Tinto Alcan with the necessary technical specifications to ensure that their PTAs are capable of operating in smelters using AP technologies. Compliance with these commitments will be monitored by an independent expert.

(10)

The Commission takes the view that the commitments are sufficient and necessary to address the competition concerns identified in the preliminary assessment without being disproportionate.

(11)

In light of the revised commitments offered, the Commission considers that there are no longer grounds for action on its part and, without prejudice to Article 9(2) of Regulation (EC) No 1/2003, the proceedings in this case should therefore be brought to an end. The commitments shall be binding until 20 January 2018.