# C_2009321EN.01001501.xml

| 29.12.2009 | EN | Official Journal of the European Union | C 321/15 |
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29.12.2009

EN

Official Journal of the European Union

C 321/15

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Summary of Commission Decision

of 3 October 2007

relating to a proceeding under Article 81 of the EC Treaty

(Case COMP/38710 — Bitumen Spain)

(notified under document C(2007) 4441 final)

(Only the English and Spanish texts are authentic)

2009/C 321/08

On 3 October 2007, 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
   (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. A non-confidential version of the full text of the decision will be made available in the authentic languages of the case at the Directorate General for Competition’s website:

On 3 October 2007, 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

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. A non-confidential version of the full text of the decision will be made available in the authentic languages of the case at the Directorate General for Competition’s website:

http://ec.europa.eu/comm/competition/index_en.html

http://ec.europa.eu/comm/competition/index_en.html

1.   INTRODUCTION

INTRODUCTION

| (1) | The Decision imposes a fine on five undertakings for infringing Article 81 of the Treaty. From 1991 to 2002, these undertakings took part in an agreement to share the market and coordinate prices for penetration bitumen on the Spanish market. |
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(1)

The Decision imposes a fine on five undertakings for infringing Article 81 of the Treaty. From 1991 to 2002, these undertakings took part in an agreement to share the market and coordinate prices for penetration bitumen on the Spanish market.

2.   CASE DESCRIPTION

CASE DESCRIPTION

2.1.   Summary of the infringement

Summary of the infringement

| (2) | The Decision concerns a single and continuous infringement of Article 81 of the Treaty consisting of market sharing and price coordination on the market for penetration bitumen. The infringement constitutes by its very nature one of the worst kinds of violations of Article 81 of the Treaty. |
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(2)

The Decision concerns a single and continuous infringement of Article 81 of the Treaty consisting of market sharing and price coordination on the market for penetration bitumen. The infringement constitutes by its very nature one of the worst kinds of violations of Article 81 of the Treaty.

| (3) | The infringement started at least as early as March 1991 and lasted at least until October 2002. It covered the territory of Spain (excluding the Canary Islands). |
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(3)

The infringement started at least as early as March 1991 and lasted at least until October 2002. It covered the territory of Spain (excluding the Canary Islands).

| (4) | The value of the Spanish market for penetration bitumen in 2001, the last full year of the infringement, was approximately EUR 286 million. |
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(4)

The value of the Spanish market for penetration bitumen in 2001, the last full year of the infringement, was approximately EUR 286 million.

| (5) | The undertakings concerned by the Decision (five undertakings, 13 legal entities) are Repsol, Proas-Cepsa, British Petroleum (‘BP’), Nynäs and Petrogal-Galp. During the infringement, these undertakings jointly controlled over 90 % of the Spanish market for penetration bitumen. |
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(5)

The undertakings concerned by the Decision (five undertakings, 13 legal entities) are Repsol, Proas-Cepsa, British Petroleum (‘BP’), Nynäs and Petrogal-Galp. During the infringement, these undertakings jointly controlled over 90 % of the Spanish market for penetration bitumen.

| (6) | Bitumen is a by-product produced during the distillation of oil. Around 85 % of the bitumen produced in the EU is used for road construction as an adhesive in the production of asphalt where it is used to bind stones together. The remaining 15 % is used in other fields of construction, for example in industrial applications such as roofing. About 80 % of the bitumen used for road construction is not subject to further processing: this is called penetration bitumen. The remaining 20 % of bitumen used in road construction consists of bitumen which is further processed, such as bitumen emulsions and modified bitumen. The product covered by the Decision is penetration bitumen, that is, bitumen used for road construction without any further processing. |
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(6)

Bitumen is a by-product produced during the distillation of oil. Around 85 % of the bitumen produced in the EU is used for road construction as an adhesive in the production of asphalt where it is used to bind stones together. The remaining 15 % is used in other fields of construction, for example in industrial applications such as roofing. About 80 % of the bitumen used for road construction is not subject to further processing: this is called penetration bitumen. The remaining 20 % of bitumen used in road construction consists of bitumen which is further processed, such as bitumen emulsions and modified bitumen. The product covered by the Decision is penetration bitumen, that is, bitumen used for road construction without any further processing.

| (7) | The addressees of the Decision participated to different extents in a cartel by which they:






  — | established market quotas, |
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(7)

The addressees of the Decision participated to different extents in a cartel by which they:

—

established market quotas,

| — | on the basis of the market quotas, allocated volumes and customers to each participant, |
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—

on the basis of the market quotas, allocated volumes and customers to each participant,

| — | monitored the implementation of the market and customer sharing agreements and, to that effect, exchanged sensitive market information, |
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—

monitored the implementation of the market and customer sharing agreements and, to that effect, exchanged sensitive market information,

| — | established a compensation mechanism to correct deviations from the market and customer sharing agreements, |
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—

established a compensation mechanism to correct deviations from the market and customer sharing agreements,

| — | agreed on the variation of bitumen prices and the moment at which the new prices would apply. |
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—

agreed on the variation of bitumen prices and the moment at which the new prices would apply.

| (8) | The price coordination activities were undertaken to support the market sharing arrangements, as they ensured that price differentials among suppliers would not disrupt the volume and customer allocation agreed. |
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(8)

The price coordination activities were undertaken to support the market sharing arrangements, as they ensured that price differentials among suppliers would not disrupt the volume and customer allocation agreed.

| (9) | Discussions on market sharing and price variations were held around a so-called ‘asphalt table’ where cartel members participated on a bilateral or multilateral basis. |
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(9)

Discussions on market sharing and price variations were held around a so-called ‘asphalt table’ where cartel members participated on a bilateral or multilateral basis.

| (10) | Market sharing discussions were held annually to estimate and distribute the market for the following year. The document which, at the end of the annual negotiations at the ‘asphalt table’, reflected the market sharing agreement with an allocation of volumes and customers to each participant was called ‘PTT’ or ‘Petete’. |
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(10)

Market sharing discussions were held annually to estimate and distribute the market for the following year. The document which, at the end of the annual negotiations at the ‘asphalt table’, reflected the market sharing agreement with an allocation of volumes and customers to each participant was called ‘PTT’ or ‘Petete’.

| (11) | With regard to price variations and the moment of their implementation, these were generally agreed by Repsol and Proas, who subsequently informed the other cartel participants of the decisions reached. |
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(11)

With regard to price variations and the moment of their implementation, these were generally agreed by Repsol and Proas, who subsequently informed the other cartel participants of the decisions reached.

2.2.   Addressees and duration of the infringement

Addressees and duration of the infringement

| (12) | The addressees of the Decision and the duration of their participation in the infringement are as follows:






  Repsol YPF Lubricantes y Especialidades S.A. (Rylesa): | 1 March 1991—1 October 2002 |
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| Repsol Petróleo S.A.: | 1 March 1991—1 October 2002 |
| Repsol YPF S.A.: | 1 March 1991—1 October 2002 |
| Productos Asfálticos S.A. (Proas): | 1 March 1991—1 October 2002 |
| Compañía Española de Petróleos S.A. (CEPSA): | 1 March 1991—1 October 2002 |
| BP Oil España S.A.: | 1 August 1991—20 June 2002 |
| BP España S.A.: | 1 August 1991—20 June 2002 |
| BP plc: | 1 August 1991—20 June 2002 |
| Nynäs Petróleo S.A.: | 1 March 1991—1 October 2002 |
| AB Nynäs Petroleum: | 22 May 1991—1 October 2002 |
| Galp Energia España S.A.: | 31 January 1995—1 October 2002 |
| Petróleos de Portugal S.A.: | 31 January 1995—1 October 2002 |
| Galp Energia, SGPS, S.A.: | 22 April 1999—1 October 2002 |

(12)

The addressees of the Decision and the duration of their participation in the infringement are as follows:

Repsol YPF Lubricantes y Especialidades S.A. (Rylesa):

1 March 1991—1 October 2002

Repsol Petróleo S.A.:

1 March 1991—1 October 2002

Repsol YPF S.A.:

1 March 1991—1 October 2002

Productos Asfálticos S.A. (Proas):

1 March 1991—1 October 2002

Compañía Española de Petróleos S.A. (CEPSA):

1 March 1991—1 October 2002

BP Oil España S.A.:

1 August 1991—20 June 2002

BP España S.A.:

1 August 1991—20 June 2002

BP plc:

1 August 1991—20 June 2002

Nynäs Petróleo S.A.:

1 March 1991—1 October 2002

AB Nynäs Petroleum:

22 May 1991—1 October 2002

Galp Energia España S.A.:

31 January 1995—1 October 2002

Petróleos de Portugal S.A.:

31 January 1995—1 October 2002

Galp Energia, SGPS, S.A.:

22 April 1999—1 October 2002

2.3.   Remedies

Remedies

2.3.1.   Basic amount of the fines

Basic amount of the fines

2.3.1.1.   Gravity

Gravity

| (13) | The infringement is limited to one Member State, which nevertheless constitutes a substantial part of the internal market. Although its actual impact on the market cannot be measured, the infringement is qualified as very serious because of its nature. |
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(13)

The infringement is limited to one Member State, which nevertheless constitutes a substantial part of the internal market. Although its actual impact on the market cannot be measured, the infringement is qualified as very serious because of its nature.

2.3.1.2.   Differential treatment

Differential treatment

| (14) | As there is considerable disparity between the turnovers on the Spanish bitumen market of the various cartel participants, a differential treatment in the form of groupings is applied to take account of each undertaking’s effective economic capacity to damage competition. |
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(14)

As there is considerable disparity between the turnovers on the Spanish bitumen market of the various cartel participants, a differential treatment in the form of groupings is applied to take account of each undertaking’s effective economic capacity to damage competition.

| (15) | To that effect the undertakings are classified into three categories according to their market share (based on sales value) for the product concerned in Spain in 2001, the last full year of the infringement. |
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(15)

To that effect the undertakings are classified into three categories according to their market share (based on sales value) for the product concerned in Spain in 2001, the last full year of the infringement.

2.3.1.3.   Sufficient deterrence

Sufficient deterrence

| (16) | In order to set the amount of the fine at a level which ensures that it has a sufficient deterrent effect, a multiplying factor is applied to the fines imposed on BP (1,8) and Repsol (1,2) in view of the overall size of these undertakings. |
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(16)

In order to set the amount of the fine at a level which ensures that it has a sufficient deterrent effect, a multiplying factor is applied to the fines imposed on BP (1,8) and Repsol (1,2) in view of the overall size of these undertakings.

2.3.1.4.   Duration

Duration

| (17) | Individual percentage increases are applied according to the duration of the participation in the infringement of each legal entity as described above. |
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(17)

Individual percentage increases are applied according to the duration of the participation in the infringement of each legal entity as described above.

2.3.2.   Aggravating circumstances: role of leader

Aggravating circumstances: role of leader

| (18) | Repsol and Proas were a significant driving force of the cartel and acted as co-leaders. This justified an increase of 30 % in the basic amount to be imposed on each of these undertakings on account of leadership. |
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(18)

Repsol and Proas were a significant driving force of the cartel and acted as co-leaders. This justified an increase of 30 % in the basic amount to be imposed on each of these undertakings on account of leadership.

2.3.3.   Attenuating circumstances: limited involvement in certain aspects of the infringement

Attenuating circumstances: limited involvement in certain aspects of the infringement

| (19) | Nynäs and Petrogal claimed an attenuating circumstance on account of their having played a passive or ‘follow my leader’ role in the infringement. The Decision rejects this claim, as these companies actually participated on an annual basis in market sharing discussions for the following year. It does, however, apply a 10 % reduction to the fine to take account of the fact that the participation of Nynäs and Petrogal in certain aspects of the infringement, notably the monitoring and compensation mechanisms as well as the price coordination activities, was less regular and active than that of the other participants. |
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(19)

Nynäs and Petrogal claimed an attenuating circumstance on account of their having played a passive or ‘follow my leader’ role in the infringement. The Decision rejects this claim, as these companies actually participated on an annual basis in market sharing discussions for the following year. It does, however, apply a 10 % reduction to the fine to take account of the fact that the participation of Nynäs and Petrogal in certain aspects of the infringement, notably the monitoring and compensation mechanisms as well as the price coordination activities, was less regular and active than that of the other participants.

2.3.4.   Application of the 10 % turnover limit

Application of the 10 % turnover limit

| (20) | The 10 % worldwide turnover limit provided for in Article 23(2) of Regulation No 1/2003 has been applied to the fines calculated as appropriate. |
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(20)

The 10 % worldwide turnover limit provided for in Article 23(2) of Regulation No 1/2003 has been applied to the fines calculated as appropriate.

2.3.5.   Application of the 2002 Leniency Notice

Application of the 2002 Leniency Notice

2.3.5.1.   Immunity

Immunity

| (21) | The case was opened on the basis of an immunity application filed by BP pursuant to the Leniency Notice (2). In the Statement of Objections addressed to BP the Commission provisionally found that BP had failed to meet its cooperation obligations under point 11(a) of the Leniency Notice and that a final decision on whether or not the Commission would grant BP immunity from fines would be taken in any final decision adopted. |
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(21)

The case was opened on the basis of an immunity application filed by BP pursuant to the Leniency Notice (2). In the Statement of Objections addressed to BP the Commission provisionally found that BP had failed to meet its cooperation obligations under point 11(a) of the Leniency Notice and that a final decision on whether or not the Commission would grant BP immunity from fines would be taken in any final decision adopted.

2

| (22) | In view of the circumstances of the case, the Decision ultimately concludes that BP cooperated genuinely, fully, on a continuous basis and expeditiously throughout the administrative procedure and that it provided the Commission with all evidence as soon as it came in its possession or was available to it, thereby fulfilling the conditions set out in point 11(a) of the Leniency Notice. BP also met its obligations pursuant to points 11(b) and (c) of the Leniency Notice as it ended its involvement in the infringement no later than the time at which it submitted evidence under point 8(a) of the Leniency Notice and did not take steps to coerce other undertakings to participate in the infringement. |
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(22)

In view of the circumstances of the case, the Decision ultimately concludes that BP cooperated genuinely, fully, on a continuous basis and expeditiously throughout the administrative procedure and that it provided the Commission with all evidence as soon as it came in its possession or was available to it, thereby fulfilling the conditions set out in point 11(a) of the Leniency Notice. BP also met its obligations pursuant to points 11(b) and (c) of the Leniency Notice as it ended its involvement in the infringement no later than the time at which it submitted evidence under point 8(a) of the Leniency Notice and did not take steps to coerce other undertakings to participate in the infringement.

| (23) | The Decision therefore considers that BP fulfilled all conditions of point 11 of the Leniency Notice and that it thus qualifies for immunity from any fines that would otherwise have been imposed on it. |
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(23)

The Decision therefore considers that BP fulfilled all conditions of point 11 of the Leniency Notice and that it thus qualifies for immunity from any fines that would otherwise have been imposed on it.

2.3.5.2.   Reduction of fines

Reduction of fines

| (24) | Repsol and Proas filed an application for a reduction of fines under the Leniency Notice. The Commission accorded a reduction of the fine of 40 % and 25 % to each of these undertakings respectively. These percentages of reduction take into account that these undertakings: (i) provided significant added value, but (ii) came forward at a late stage in the proceeding and only after the Commission had sent detailed requests for information. |
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(24)

Repsol and Proas filed an application for a reduction of fines under the Leniency Notice. The Commission accorded a reduction of the fine of 40 % and 25 % to each of these undertakings respectively. These percentages of reduction take into account that these undertakings: (i) provided significant added value, but (ii) came forward at a late stage in the proceeding and only after the Commission had sent detailed requests for information.

3.   DECISION

DECISION

| (25) | The undertakings indicated below infringed Article 81 of the Treaty by participating, during the periods indicated, in a complex of agreements and concerted practices in the penetration bitumen business which covered the territory of Spain (excluding the Canary islands) and which consisted in market sharing arrangements and price coordination:
  Repsol YPF Lubricantes y Especialidades S.A., Repsol Petróleo S.A. and Repsol YPF S.A., from 1 March 1991 to 1 October 2002;
  Productos Asfálticos S.A. and Compañía Española de Petróleos S.A., from 1 March 1991 to 1 October 2002;
  BP Oil España S.A., BP España S.A. and BP plc, from 1 August 1991 to 20 June 2002;
  Nynäs Petróleo S.A., from 1 March 1991 to 1 October 2002; AB Nynäs Petroleum, from 22 May 1991 to 1 October 2002;
  Galp Energia España S.A. and Petróleos de Portugal S.A., from 31 January 1995 to 1 October 2002; Galp Energia, SGPS, S.A., from 22 April 1999 to 1 October 2002. |
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(25)

The undertakings indicated below infringed Article 81 of the Treaty by participating, during the periods indicated, in a complex of agreements and concerted practices in the penetration bitumen business which covered the territory of Spain (excluding the Canary islands) and which consisted in market sharing arrangements and price coordination:

Repsol YPF Lubricantes y Especialidades S.A., Repsol Petróleo S.A. and Repsol YPF S.A., from 1 March 1991 to 1 October 2002;

Productos Asfálticos S.A. and Compañía Española de Petróleos S.A., from 1 March 1991 to 1 October 2002;

BP Oil España S.A., BP España S.A. and BP plc, from 1 August 1991 to 20 June 2002;

Nynäs Petróleo S.A., from 1 March 1991 to 1 October 2002; AB Nynäs Petroleum, from 22 May 1991 to 1 October 2002;

Galp Energia España S.A. and Petróleos de Portugal S.A., from 31 January 1995 to 1 October 2002; Galp Energia, SGPS, S.A., from 22 April 1999 to 1 October 2002.

| (26) | For the infringement described, the following fines are imposed:
  Repsol YPF Lubricantes y Especialidades S.A., Repsol Petróleo S.A. and Repsol YPF S.A., jointly and severally liable for the payment of EUR 80 496 000;
  Productos Asfálticos S.A. and Compañía Española de Petróleos S.A., jointly and severally liable for the payment of EUR 83 850 000;
  BP Oil España S.A., BP España S.A. and BP plc, jointly and severally liable for the payment of EUR 0;
  Nynäs Petróleo S.A.: EUR 10 642 500; of which, AB Nynäs Petroleum, jointly and severally liable for the payment of EUR 10 395 000; and
  Galp Energia España S.A. and Petróleos de Portugal S.A., jointly and severally liable for the payment of EUR 8 662 500; of which, Galp Energia, SGPS, S.A., jointly and severally liable for the payment of EUR 6 435 000. |
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(26)

For the infringement described, the following fines are imposed:

Repsol YPF Lubricantes y Especialidades S.A., Repsol Petróleo S.A. and Repsol YPF S.A., jointly and severally liable for the payment of EUR 80 496 000;

Productos Asfálticos S.A. and Compañía Española de Petróleos S.A., jointly and severally liable for the payment of EUR 83 850 000;

BP Oil España S.A., BP España S.A. and BP plc, jointly and severally liable for the payment of EUR 0;

Nynäs Petróleo S.A.: EUR 10 642 500; of which, AB Nynäs Petroleum, jointly and severally liable for the payment of EUR 10 395 000; and

Galp Energia España S.A. and Petróleos de Portugal S.A., jointly and severally liable for the payment of EUR 8 662 500; of which, Galp Energia, SGPS, S.A., jointly and severally liable for the payment of EUR 6 435 000.

| (27) | The undertakings listed above are ordered to immediately bring to an end the infringement insofar as they have not already done so and are ordered to refrain from repeating any act or conduct as described in the Decision and from any act or conduct having the same or similar object or effect. |
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(27)

The undertakings listed above are ordered to immediately bring to an end the infringement insofar as they have not already done so and are ordered to refrain from repeating any act or conduct as described in the Decision and from any act or conduct having the same or similar object or effect.

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(1)  OJ L 1, 4.1.2003, p. 1.

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(2)  OJ C 45, 19.2.2002, p. 3.

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