EN Official Journal of the European Union C 40/20

Final report of the Hearing Officer (1) in the Aluminium fluoride case

(Case COMP/39.180)

2011/C 40/12

The draft decision in this case gives rise to the following observations

Background

In March 2005. Boliden Odda A/S submitted an immunity application under the 2002 Leniency Notice. The Commission granted conditional immunity to Boliden on 28 April 2005.

The ensuing investigation of the Commission found that producers of aluminium fluoride, a chemical compound in the form of a white powder that is used in the production of aluminium, had behaved in a concerted way to exchange sensitive information and agree on prices, price increases and market sharing.

The Commission carried out inspections at the premises of Alufluor AB, Derivados del Fluor SA, Fluorsid SpA, and C.E. Guilini & C. Srl and held interviews with a former employee of the leniency applicant. Article 18 requests for information pursuant to Regulation (EC) No 1/2003 also were sent.

On 22 April 2007, immediately before the Statement of Objections (SO) was issued, Fluorsid SpA submitted a leniency application, which was subsequently rejected by the Commission on 13 July 2007.

Statement of Objections

The Statement of Objections was adopted on 24 April 2007 and sent to the following parties: Boliden Odda A/S, Derivados del Fluor, Fluorsid SpA, Industries Chimiques du Fluor, Industrial Química de Mexico, Minerales y Productos Derivados, Minmet Financing Company, Outokumpu and QB Industrias. The parties received the SO and CD-ROM containing the file between 26 and 30 April 2007. Several parties requested short extensions, which were granted by the Hearing Officer at the time, Serge Durande.

Access to file

In the meantime, an issue arose with regard to access to file, which entailed the sending of a new CD-ROM on 18 and 19 June 2007, and which meant that the deadlines were set anew. The final deadlines fell between 1 and 10 August 2007, and all parties replied in due time.

The audio recordings made of the interviews with a former employee of the leniency applicant were summarised in a document and placed in the case file. The Commission relies only on information contained in the signed document, but the parties have a right to access the audio recordings since they were a mechanical reproduction of what was said in the interviews. The signed summary also included an acknowledgement that access to the audio recordings might be provided to the other parties, and since neither the interviewee nor the leniency applicant objected, they were sent to the other parties upon request.

Alleged lack of consultation according to the Euro-Mediterranean Agreement

ICF maintained that the Commission was obliged to observe the Euro-Mediterranean Agreement (Agreement) concluded between the EU and Tunisian governments and to consult the Association Committee about the procedure. However, in this case the Commission is applying Article 81 of the Treaty, and not the Agreement. In any case, the Agreement gives no specific rights to private undertakings in this procedure.

Third parties

No third parties were involved in the procedure.

The oral hearing

The oral hearing was held on 13 September 2007. All of the parties attended the hearing.

The draft decision

The draft decision has not been sent to some addressees of the SO, namely Derivados del Fluor, SA, Minerales y Productos Derivados, SA (parent company of Derivados del Fluor), and Outokumpu Oyj, mainly due to the reduction of the duration of the infringements in the draft decision as compared to the Statement of Objections.

The draft decision submitted to the Commission only contains objections in respect of which the parties have been afforded the opportunity of making known their views.

In the light of the above, I consider that the rights of the parties to be heard have been respected in this case.

Brussels, 24 June 2008. Michael ALBERS

(1) Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings (OJ L 162, 19.6.2001, p. 21).