EN Official Journal of the European Union C 40/22

Summary of Commission Decision

of 25 June 2008

relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement

(Case COMP/39.180 — Aluminium fluoride)

(notified under document C(2008) 3043 final)

(Only the English, French and Italian texts are authentic)

(Text with EEA relevance)

2011/C 40/13

On 25 June 2008, the Commission adopted a decision relating to a proceeding under Article 81 of the EC Treaty 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. 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/comm/competition/antitrust/cases/index/

1. INTRODUCTION

(1) The addressees of the Decision are companies involved in the supply of aluminium fluoride who infringed Article 81 of the EC Treaty and Article 53 of the EEA Agreement whereas they agreed on a target price increase for aluminium fluoride and examined various regions world-wide, including Europe, to establish a general price level and, in some cases, a market division. They also exchanged commercially sensitive information. The geographic scope of the infringement was world-wide. The infringement lasted from 12 July 2000 to 31 December 2000.

2. CASE DESCRIPTION

2.1. Procedure

(2) In March 2005, Boliden informed the Commission of the cartel among producers of aluminium fluoride and applied for immunity pursuant to the 2002 Leniency Notice. In April 2007, Fluorsid filed an application under the Leniency Notice.

(3) In May 2005, the Commission carried out unannounced inspections at the premises of European producers of aluminium fluoride. In August 2006, the Commission interviewed a former employee of the immunity applicant. Between September 2006 and February 2007, the Commission sent requests for information to the undertakings concerned. On 24 April 2007, the Commission initiated proceedings and adopted a Statement of Objection. An Oral Hearing was held on 13 September 2007. All parties exercised their right to be heard. On 11 and 14 April 2008, further requests for information were sent.

(4) The Advisory Committee on Restrictive Practices and Dominant Positions issued its favourable opinions on 12 June 2008 and 20 June 2008. The Decision was adopted on 25 June 2008.

2.2. Summary of the infringement

(5) Aluminium fluoride is the chemical compound with the formula AlF3. Adding aluminium fluoride to the production process of primary aluminium lowers the consumption of electricity required in the smelting process and thereby considerably contributes to the reduction of production costs of aluminium. Energy is a major cost factor in aluminium production.

(6) The aluminium fluoride producers to whom the Decision is addressed, met on 12 July 2000 in Milan. During this meeting, they agreed on a world-wide target price increase of aluminium fluoride and examined various regions world-wide (Europe, South America, North America, Australia and ‘other markets’, e.g. including Turkey) to establish a general price level and in some cases a market division. They also exchanged commercially sensitive information. In the second half of year 2000, the addressees of the Decision engaged in bilateral contacts during which the cartel arrangements were monitored in view of their implementation.

(7) The Decision concludes that on 12 July 2000, addressees of the Decision reached an agreement or engaged in a concerted practice in violation of Article 81 of the EC Treaty and Article 53 of the EEA Agreement. The infringement lasted from 12 July 2000 until 31 December 2000. All addressees are liable for the infringement for the entire infringement period. The geographic scope of the infringement is world-wide.

2.3. Addressees

(8) The Decision is addressed to Boliden Odda A/S (Norway), Fluorsid SpA (Italy), Minmet Financing Company SA (Switzerland), Société des Industries Chimiques du Fluor (Tunisia), Industrial Quimica de Mexico, SA de C.V. (Mexico) and QB Industrial, S.A.B de C.V. (Mexico).

2.4. Remedies

2.4.1. Basic amount of the fine

(9) The scope of the cartel was world-wide and the cartel members’ market shares on the world-wide market were not proportionally reflected in their sales of aluminium fluoride within the EEA. The Commission therefore applied point 18 of the 2006 Guidelines on fines so that the starting amounts would reflect the nature of the infringement, its actual impact on the market and the scope of the geographic market covered by the collusive behaviour of the parties and the economic capacity of the members of the cartel to harm competition within the EEA. Each addressee’s relative shares of the addressees’ total sales in the geographic area covered by the cartel (wider than the EEA) were used to determine a value of sales of aluminium fluoride within the EEA for each of the addressees of the Decision.

(10) The Commission, having considered the circumstances of the case, in particular the nature of the infringement and its geographic scope, set the proportion of the value of sales to be used to establish the basic amount to 17 %.

(11) The infringement lasted from 12 July 2000 until 31 December 2000, less than six months. As a result, the multiplying factor applied to the amount determined on the basis of the value of sales was 0,5. This applied to all addressees.

(12) For the purpose of deterring undertakings from entering into horizontal price fixing agreements such as the one that was at issue, the basic amount of the fines to be imposed was increased by an additional amount. Having considered the circumstances of the case and, in particular, the nature of the infringement and its geographic scope, it is concluded that an additional amount of 17 % of the value of sales would be appropriate.

2.4.2. Adjustments to the basic amount

2.4.2.1. Aggravating and mitigating circumstances

(13) There are no aggravating circumstances to consider.

(14) Parties have argued for the application of a series of mitigating circumstances such as a the lack of serious nature of the infringement, the non-implementation, lack of effect and limited duration of the cartel arrangements, the passive role in the cartel and the effective cooperation outside the Leniency Notice. These claims were rejected in the Decision.

2.4.2.2. Specific increase for deterrence

(15) The Commission did not consider it necessary, in order to ensure a sufficient deterrent effect, to apply a multiplying factor to the fines to be imposed.

2.4.3. Application of the 10 % turnover limit

(16) The final individual amounts of the fines calculated prior to the application of the Leniency Notice were below 10 % of the worldwide turnover of the addressees of the Decision.

2.4.4. Application of the 2002 Leniency Notice: reduction of fines

(17) Boliden was the first to inform the Commission about a worldwide secret cartel for aluminium fluoride. Boliden cooperated fully with the Commission throughout the administrative procedure and fulfilled the other criteria in the 2002 Leniency Notice relevant to immunity. Boliden was therefore granted immunity from any fines that would otherwise have been imposed on it.

(18) In April 2007, Fluorsid filed an application under the Leniency Notice. The Commission did not consider that the evidence submitted constituted significant added value within the meaning of the 2002 Leniency Notice. Fluorsid's application for a reduction of the fines was rejected.

3. DECISION

(19) The Decision concluded that the following undertakings have infringed Article 81 of the Treaty and Article 53 of the EEA Agreement by participating, from 12 July 2000 until 31 December 2000, in an agreement and/or concerted practice in the aluminium fluoride sector: (a) Boliden Odda A/S; (b) Fluorsid SpA and Minmet Financing Company SA; (c) Société des Industries Chimiques du Fluor; (d) Industrial Quimica de Mexico SA de C.V. and Q.B. Industrias S.A.B. de C.V.

(20) The following fines are imposed: (a) Boliden Odda A/S: EUR 0; (b) Fluorsid SpA and Minmet Financing Company SA, jointly and severally: EUR 1 600 000; (c) Société des Industries Chimiques du Fluor: EUR 1 700 000; (d) Industrial Quimica de Mexico SA de C.V. and Q.B. Industrias S.A.B. de C.V., jointly and severally: EUR 1 670 000.

(21) The undertakings listed in recital 19 were ordered to immediately bring to an end the infringements referred to in that recital in so far as they had not already done so and to refrain from repeating any act or conduct described in that recital, and from any act or conduct having the same or similar object or effect.

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