Summary of Commission Decision

of 19 November 2021

relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement

(Case AT.40127 – Canned vegetables)

(notified under document number C(2021) 8259 final)

(Only the Italian tet is authentic)

(Text with EEA relevance)

(2022/C 412/05)

On 19 November 2021, the Commission adopted a decision relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union 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.

1. INTRODUCTION

(1) The Decision relates to a single and continuous infringement of Article 101(1) of the Treaty and Article 53(1) of the EEA Agreement.

(2) The Decision is addressed to the following legal entities (referred to collectively as ‘addressees’): Conserve Italia Soc. coop. agricola (‘Conserve Italia SCA’) and Conserves France S.A. (‘Conserves France’) (together, ‘Conserve Italia’). The addressees form part of the Conserve Italia group.

2. CASE DESCRIPTION

2.1. Procedure

(3) Following an immunity application in June 2013 by a canned vegetables producer not addressed by the Decision, the Commission carried out unannounced inspections from 1 October to 4 October 2013 at the premises of Conserve Italia and other canned vegetables producers. On 17 October 2013, Conserve Italia applied for immunity from fines under point (14) of the Leniency Notice or, in the alternative, a reduction of fine under point (27) of the Leniency Notice ( 2 )

(4) On 17 February 2017, the Commission initiated proceedings under Article 11(6) of Regulation (EC) No 1/2003 and Article 2(1) of Regulation (EC) No 773/2004 ( 3 ) against Conserve Italia and other canned vegetables producers (‘the parties’) with a view to engaging in settlement discussions with them under the Settlement Notice ( 4 ) . Settlement discussions with the parties took place between March 2017 and June 2019. Subsequently the parties except Conserve Italia submitted each a formal request to settle pursuant to Article 10a (2) of Regulation (EC) No773/2004.

(5) In light of Conserve Italia having chosen not to submit a formal request to settle, the Commission continued the investigation into Conserve Italia’s conduct under the standard procedure.

(6) The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 17 November 2021 and the Commission adopted the Decision against Conserve Italia on 19 November 2021.

2.2. Summary of the infringement

(7) The Decision concerns an infringement relating to the sale of certain types of canned vegetables to retailers and/or the food service industry.

(8) The single and continuous infringement concerned three closely inter-related horizontal agreements through which Conserve Italia and the other canned vegetables producers involved coordinated their commercial conduct on the market: (i) an agreement covering private label sales (sold under retailers’ brands) of canned vegetables such as green beans, peas, peas and carrots mix, and vegetable macedoine ( 5 ) to retailers in the EEA, in particular in Belgium, Germany, France and the Netherlands; (ii) an agreement covering private label sales (sold under retailers’ brands, as above) of canned sweetcorn to retailers in the EEA, in particular in Belgium, Germany, Denmark, Ireland, Spain, France, Italy, Luxembourg, the Netherlands, Austria, Portugal, Norway, Finland, Sweden and the United Kingdom; and (iii) an agreement covering both own brands and private label sales of all types of canned vegetables ( 6 ) , including mixes of vegetables and canned vegetable preparations and dishes (but excluding mixes, salads and preparations that do not have vegetables as their main ingredient) to retailers ( 7 ) and to the food service industry in France. Conserve Italia participated only in the first two agreements.

(9) The infringement consisted in the fixing of selling prices (price increases, minimum prices, target prices) and the coordination of pricing policy and pricing structure; the allocation of volume quotas and market shares; the allocation of customers and markets; the coordination of tenders and price offers to be submitted to retailers and/or the food service industry; the coordination of other sales conditions and rebates, including marketing strategy and promotional policy; and the exchange of commercially sensitive information.

(10) The infringement covered the entire EEA and lasted from 19 January 2000 until 1 October 2013.

2.3. Addressees and duration

(11) The addressees of the Decision are Conserve Italia Soc. coop. agricola and Conserves France S.A. They are held liable for the infringement for the following duration: from 15 March 2000 (and from 20 October 2000 related solely to the agreement on canned sweetcorn) to 1 October 2013.

2.4. Remedies

(12) The Decision applies the 2006 Fines Guidelines ( 8 ) and imposes fines on the addressees.

2.4.1. Basic amount of the fine

(13) In setting the fines, the Commission took into account the average of Conserve Italia’s sales of the canned vegetables covered by the cartel within the EEA for the period 2000-2013, the fact that price coordination and market sharing are among the most harmful restrictions of competition, the duration of the infringement, the fact that the infringement covered the entire EEA and that it was thoroughly implemented, and an additional amount to deter undertakings from entering into such practices.

2.4.2. Adjustments to the basic amount

(14) The Commission applied mitigating circumstances to Conserve Italia, given that it had a more limited role in the infringement and did not participate in the infringement in the same manner as the other parties.

2.4.3. Application of the 10 % turnover limit

(15) The basic amount of the fine (before the application of the leniency reduction) exceeded 10 % of the total worldwide turnover of Conserve Italia group in the business year preceding the date of the Decision. The basic amount of the fine was therefore capped to this limit.

2.4.4. Application of the 2006 Leniency Notice

(16) The Commission granted Conserve Italia a 50 % reduction of its fine.

2.4.5. Inability to pay

(17) Conserve Italia submitted an application for a reduction of its fine on the grounds of inability to pay. The Commission assessed this application and concluded that it should be partially accepted.

3. CONCLUSION

(18) Pursuant to Article 23(2) of Regulation (EC) No 1/2003, the following fine was imposed on Conserve Italia Soc. coop. agricola and Conserves France S.A., jointly and severally liable: EUR 20 000 000.

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

(2) OJ C 298, 8.12.2006, p. 17.

(3) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18), as amended by Commission Regulation (EC) No 622/2008 (OJ L 171, 1.7.2008, p. 3) and by Commission Regulation (EU) 2015/1348 (OJ L 208, 5.8.2015, p. 3).

(4) Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ C 167, 2.7.2008, p. 1).

(5) Conserve Italia only produced canned green beans, peas, and peas and carrots mix.

(6) Except canned tomatoes, mushrooms, condiments or olives, and canned products having these as main ingredients.

(7) Sales of private label products to retailers concerned only the products not covered by the other two agreements.

(8) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ C 210, 1.9.2006, p. 2).