# C_2015402EN.01000601.xml

| 4.12.2015 | EN | Official Journal of the European Union | C 402/6 |
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4.12.2015

EN

Official Journal of the European Union

C 402/6

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Final Report of the Hearing Officer (1)

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AT.39563 — Retail Food Packaging

(2015/C 402/07)

Introduction

Introduction

| (1) | The Commission's investigation in this case concerned cartel infringements alleged to have taken place in, respectively, Italy, South-West Europe (‘SWE’) (2), North-West Europe (‘NWE’) (3), Central and Eastern Europe (‘CEE’) (4) and France with respect to certain types of trays used for the retail packaging of fresh food such as meat, poultry and fish. |
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(1)

The Commission's investigation in this case concerned cartel infringements alleged to have taken place in, respectively, Italy, South-West Europe (‘SWE’) (2), North-West Europe (‘NWE’) (3), Central and Eastern Europe (‘CEE’) (4) and France with respect to certain types of trays used for the retail packaging of fresh food such as meat, poultry and fish.

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| (2) | The draft decision relates to five distinct cartels, each covering one of these territories. Each cartel concerned expanded and extruded foam polystyrene plastic trays (foam trays). The NWE cartel concerned in addition rigid polypropylene plastic trays (rigid trays). The undertakings found in the draft decision to have participated in one or more of the five cartels are: Linpac (5) (Italy, SWE, NWE, CEE and France); Ovarpack (6) (SWE); Vitembal (7) (Italy, SWE, NWE and France); Huhtamäki (8) (SWE, NWE and France); Sirap-Gema (9) (Italy, CEE and France); Coopbox (10) (Italy, SWE and CEE); Nespak (11) (Italy); Magic Pack (12) (Italy); Silver Plastics (13) (NWE and France); and Propack (14) (CEE, as regards Hungary only). |
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(2)

The draft decision relates to five distinct cartels, each covering one of these territories. Each cartel concerned expanded and extruded foam polystyrene plastic trays (foam trays). The NWE cartel concerned in addition rigid polypropylene plastic trays (rigid trays). The undertakings found in the draft decision to have participated in one or more of the five cartels are: Linpac (5) (Italy, SWE, NWE, CEE and France); Ovarpack (6) (SWE); Vitembal (7) (Italy, SWE, NWE and France); Huhtamäki (8) (SWE, NWE and France); Sirap-Gema (9) (Italy, CEE and France); Coopbox (10) (Italy, SWE and CEE); Nespak (11) (Italy); Magic Pack (12) (Italy); Silver Plastics (13) (NWE and France); and Propack (14) (CEE, as regards Hungary only).

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Investigation phase

Investigation phase

| (3) | The case stems from an application for immunity from fines submitted by Linpac. Following inspections carried out in June 2008, the Commission received six leniency applications. |
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(3)

The case stems from an application for immunity from fines submitted by Linpac. Following inspections carried out in June 2008, the Commission received six leniency applications.

| (4) | On 16 July 2012, I received a request under Article 4(2)(d) of Decision 2011/695/EU from an undertaking seeking further information regarding the content, type and duration of the infringements alleged against it. The applicant explained that it was seeking investment and that the requested information was for the purposes of a detailed risk analysis. |
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(4)

On 16 July 2012, I received a request under Article 4(2)(d) of Decision 2011/695/EU from an undertaking seeking further information regarding the content, type and duration of the infringements alleged against it. The applicant explained that it was seeking investment and that the requested information was for the purposes of a detailed risk analysis.

| (5) | Upon reviewing the information that the Directorate-General for Competition (‘DG Competition’) had provided to the applicant, I concluded that the applicant had already been sufficiently informed of the subject-matter and purpose of the investigation, within the meaning of Article 4(2)(d) of Decision 2011/695/EU. It is only upon receipt of the statement of objection (‘SO’) that the parties concerned are informed of all the objections made and the evidence used against them and are able to rely in full on their rights of defence. If such rights were in effect extended to the period before the SO, the effectiveness of the Commission's investigation would be undermined (15). |
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(5)

Upon reviewing the information that the Directorate-General for Competition (‘DG Competition’) had provided to the applicant, I concluded that the applicant had already been sufficiently informed of the subject-matter and purpose of the investigation, within the meaning of Article 4(2)(d) of Decision 2011/695/EU. It is only upon receipt of the statement of objection (‘SO’) that the parties concerned are informed of all the objections made and the evidence used against them and are able to rely in full on their rights of defence. If such rights were in effect extended to the period before the SO, the effectiveness of the Commission's investigation would be undermined (15).

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Statement of objections

Statement of objections

| (6) | The Commission adopted a SO on 21 September 2012. This was notified to the addressees of the draft decision and a number of other entities between 28 September and 1 October 2012. When informed, after notification of the SO, that one of its addressees had ceased to exist and that its assets had been transferred to a successor entity, the Commission adopted and notified an appropriately revised SO to that successor entity. Since merely technical modifications to the original SO were involved, the revised SO was not notified to the other addressees of the SO. |
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(6)

The Commission adopted a SO on 21 September 2012. This was notified to the addressees of the draft decision and a number of other entities between 28 September and 1 October 2012. When informed, after notification of the SO, that one of its addressees had ceased to exist and that its assets had been transferred to a successor entity, the Commission adopted and notified an appropriately revised SO to that successor entity. Since merely technical modifications to the original SO were involved, the revised SO was not notified to the other addressees of the SO.

Time period for responding in writing to the SO

Time period for responding in writing to the SO

| (7) | DG Competition granted several parties extensions of the period initially set for responding in writing to the SO. I received no requests for further extensions. |
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(7)

DG Competition granted several parties extensions of the period initially set for responding in writing to the SO. I received no requests for further extensions.

Access to file

Access to file

| (8) | Access to the file took place by means of CD-ROM and, for some material, access at the Commission's premises. DG Competition dealt with some requests for additional access. I received no applications with respect to access to file. |
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(8)

Access to the file took place by means of CD-ROM and, for some material, access at the Commission's premises. DG Competition dealt with some requests for additional access. I received no applications with respect to access to file.

Access to other parties' replies to the SO

Access to other parties' replies to the SO

| (9) | At several stages of the proceedings, the Commission disclosed to the parties non-confidential versions of certain passages and annexes of other parties' replies to the SO. Some parties referred to such materials during the oral hearing. DG Competition allowed those parties that so requested time to submit written comments after the oral hearing on materials received before it. The parties to whom the Commission disclosed additional material after the oral hearing had the opportunity to comment in writing on that material. |
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(9)

At several stages of the proceedings, the Commission disclosed to the parties non-confidential versions of certain passages and annexes of other parties' replies to the SO. Some parties referred to such materials during the oral hearing. DG Competition allowed those parties that so requested time to submit written comments after the oral hearing on materials received before it. The parties to whom the Commission disclosed additional material after the oral hearing had the opportunity to comment in writing on that material.

Oral hearing

Oral hearing

| (10) | The oral hearing took place over three days, from 10 to 12 June 2013. All but one of the undertakings concerned by the SO participated. I rejected an application from that one undertaking — which specifically confirmed that it had not requested to be heard orally — to be admitted to the oral hearing as an observer. The applicable rules do not foresee, in such circumstances, the possibility for an addressee of a SO to attend, as an observer, the oral hearing of other addressees that have requested to be heard orally. |
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(10)

The oral hearing took place over three days, from 10 to 12 June 2013. All but one of the undertakings concerned by the SO participated. I rejected an application from that one undertaking — which specifically confirmed that it had not requested to be heard orally — to be admitted to the oral hearing as an observer. The applicable rules do not foresee, in such circumstances, the possibility for an addressee of a SO to attend, as an observer, the oral hearing of other addressees that have requested to be heard orally.

The draft decision

The draft decision

| (11) | After hearing the addressees of the SO, the Commission dropped its objections against two undertakings. It also reduced the scope of the liability of several others in comparison with the preliminary assessment contained in the SO. |
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(11)

After hearing the addressees of the SO, the Commission dropped its objections against two undertakings. It also reduced the scope of the liability of several others in comparison with the preliminary assessment contained in the SO.

| (12) | In relation to Italy, the six undertakings concerned are held liable for infringements of shorter duration than those alleged in the SO. In relation to SWE, the periods for which liability is imposed have been reduced compared to the Commission's objections for four of the five undertakings concerned. All undertakings held liable for the NWE cartel have seen the duration of their infringement reduced in comparison with the preliminary assessment in the SO. As regards CEE, four of the five undertakings concerned are liable for infringements of shorter duration than those set out in the SO. With respect to the cartel in France, all undertakings held liable are found to have participated in an infringement for shorter periods than those alleged in the SO. |
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(12)

In relation to Italy, the six undertakings concerned are held liable for infringements of shorter duration than those alleged in the SO. In relation to SWE, the periods for which liability is imposed have been reduced compared to the Commission's objections for four of the five undertakings concerned. All undertakings held liable for the NWE cartel have seen the duration of their infringement reduced in comparison with the preliminary assessment in the SO. As regards CEE, four of the five undertakings concerned are liable for infringements of shorter duration than those set out in the SO. With respect to the cartel in France, all undertakings held liable are found to have participated in an infringement for shorter periods than those alleged in the SO.

| (13) | Pursuant to Article 16 of Decision 2011/695/EU, I have examined whether the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known its views. I conclude that it does so. |
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(13)

Pursuant to Article 16 of Decision 2011/695/EU, I have examined whether the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known its views. I conclude that it does so.

| (14) | Overall, I conclude that all parties have been able to effectively exercise their procedural rights in this case. |
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(14)

Overall, I conclude that all parties have been able to effectively exercise their procedural rights in this case.

Brussels, 22 June 2015

Wouter WILS

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(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’).

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(2)  In the draft decision, the SWE infringement covers Portugal and Spain.

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(3)  In the draft decision, the NWE infringement covers Belgium, Denmark, Finland, Germany, Luxembourg, the Netherlands, Sweden and Norway.

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(4)  In the draft decision, the CEE infringement covers the Czech Republic, Hungary, Poland and Slovakia.

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(5)  The Linpac entities to whom the draft decision is addressed are: Linpac Group Ltd; Linpac Packaging Verona Srl; Linpac Packaging Ltd; Linpac Packaging Holdings SL; Linpac Packaging Pravia SA; Linpac Packaging GmbH; Linpac Packaging Polska Sp zoo; Linpac Packaging Hungária Kft; Linpac Packaging Spol. sro; Linpac Packaging sro; Linpac France SAS and Linpac Distribution SAS.

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(6)  Ovarpack Embalagens SA.

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(7)  The Vitembal entities to whom the draft decision is addressed are: Vitembal Holding SAS; Vitembal Société Industrielle SAS; Vitembal GmbH Verpackungsmittel; and Vitembal España SL.

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(8)  The (current or former) Huhtamäki entities to whom the draft decision is addressed are: Huhtamäki Oyj; Huhtamäki Flexible Packaging Germany GmbH & Co. KG; ONO Packaging Portugal SA (formerly called Huhtamäki Embalagens Portugal SA); and Coveris Rigid (Auneau) France SA.

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(9)  The Sirap-Gema entities to whom the draft decision is addressed are: Italmobiliare SpA; Sirap Gema SpA; Petruzalek GmbH; Petruzalek Kft; Petruzalek sro; Petruzalek Spol. sro; and Sirap France SAS.

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(10)  The Coopbox entities to whom the draft decision is addressed are: Consorzio Cooperative di Produzione e Lavoro Sc (CCPL Sc); Coopbox Group SpA; Poliemme Srl; Coopbox Hispania Slu; and Coopbox Eastern sro.

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(11)  The Nespak entities to whom the draft decision is addressed are Group Guillin SA and Nespak SpA.

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(12)  Magic Pack Srl.

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(13)  The Silver Plastics entities to whom the draft decision is addressed are: Johannes Reifenhäuser Holding GmbH Co. KG; Silver Plastics GmbH & Co. KG; Silver Plastics GmbH; and Silver Plastics SARL.

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(14)  The Propack entities to whom the draft decision is addressed are Bunzl plc and Propack Kft.

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(15)  See, among others, judgment in Dalmine v Commission, C-407/04, EU:C:2007:53, paragraph 60.

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Dalmine

Commission

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