EN Official Journal of the European Union C 319/5

Final Report of the Hearing Officer (1)

Power Cables

(AT.39610)

2014/C 319/05

I. INTRODUCTION

1. The case concerns an almost worldwide cartel in the markets for submarine (‘SM’) and underground (‘UG’) power cables, involving the following undertakings: Nexans (2); Prysmian and its former parents, Pirelli and Goldman Sachs (3); JPS and its joint-venture parents, Hitachi and Sumitomo (4); Viscas and its joint-venture parents, Furukawa and Fujikura (5); ABB (6); Brugg (7); Silec, its current parent, General Cable and its predecessor and former parent, Safran (8); EXSYM and its joint venture parents, Showa and Mitsubishi (9); LS Cable (10); Taihan (11); and NKT (12) (together the ‘addressees of the decision’).

II. PROCEDURE

1. Investigation

2. The investigation started on the basis of an application for immunity submitted by ABB on 17 October 2008 under the Leniency Notice (13). ABB received conditional immunity on 22 December 2008. The Commission conducted surprise inspections at the premises of Nexans and Prysmian from 28 January to 3 February 2009. On 2 February 2009 and 20 April 2009, JPS (jointly with its parent companies, Sumitomo and Hitachi) and Mitsubishi respectively applied for a reduction of the fines in accordance with the Leniency Notice. On 29 June 2011, the Commission informed Mitsubishi that it had reached the preliminary conclusion that Mitsubishi had not submitted evidence representing significant added value with respect to the evidence already in the Commission’s possession.

3. Prysmian and Nexans lodged applications for annulment to the General Court of the Commission’s inspection decisions. By judgments of 14 November 2012 (14), the General Court found that, before adoption of the inspection decision, the Commission had reasonable grounds for ordering an inspection covering only high voltage SM and UG electric cables and the material associated with them. It therefore annulled the inspection decisions concerning Nexans and Prysmian to the extent that those decisions concerned electric cables other than high voltage SM and UG electric cables and the material associated with them. On 15 March 2013, Nexans brought an appeal against the General Court’s judgment in Case T-135/09 (15). At the time of writing, that appeal is still pending.

2. Statement of objections

4. On 30 June 2011, the Commission issued a statement of objections (‘SO’) to the addressees of the decision and to one other party (together ‘the addressees of the SO’).

5. The Commission alleged that from 18 February 1999 to 28 January 2009 the addressees of the SO engaged in agreements and concerted practices with the aim of allocating markets and customers and maintaining prices above the competitive level for SM and UG power cable projects. According to the Commission’s preliminary findings, European and Asian producers agreed not to compete in each other’s home territories and European suppliers agreed on the allocation of territories and customers for projects within the EEA. This behaviour was considered to amount to a complex single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement.

3. Access to the file/Confidentiality

6. In July 2011, the addressees of the SO were granted access to the file via an access-to-file DVD (16) and to the corporate statements of the immunity and leniency applicants at the premises of the Directorate-General for Competition (‘DG Competition’).

a. Requests for additional access to the file

7. DG Competition dealt with requests for additional access to the file by LS Cable, Goldman Sachs, Nexans and NKT.

8. I received three requests for additional access to the file from Goldman Sachs that DG Competition had rejected. These concerned parts of Prysmian’s reply to a Commission’s request for information of 20 October 2009, and certain documents annexed to it. I accepted two of these requests entirely and one partially. As a result of accepting one request, I adopted a decision pursuant to Article 8 of Decision 2011/695/EU ordering disclosure to Goldman Sachs of Prysmian’s reply to one question of the request for information of 20 October 2009.

b. Documents obtained from the Spanish Competition Commission

9. In October 2011, I received a request from Nexans for, among other things, access to documents which the Commission had obtained from the Spanish Competition Commission (‘CNC’) following an inspection carried out by the CNC in the power cables sector in Spain. Nexans was in possession of a decision from the CNC informing it that the documents seized had been transferred to the Commission. Nexans had not found any such documents in the Commission’s file and therefore claimed that the file was incomplete. DG Competition rejected Nexans’ request stating that the documents obtained from the CNC (the ‘Spanish documents’) were not part of the file as they did not contain information relevant to the investigation in Case AT.39610.

10. I took the view that the Spanish documents were part of the Commission’s file in Case AT.39610 and had therefore to be made accessible to the addressees of the SO. Paragraph 8 of the Notice on Access to the File (17) provides that the Commission’s file consists of all documents that ‘have been obtained, produced and/or assembled by the Commission Directorate-General for Competition, during the investigation’. The Commission had obtained the Spanish documents pursuant to a request to the CNC under Article 12 of Regulation (EC) No 1/2003 (18) in the context of the investigation in Case AT.39610.

11. DG Competition decided that, given their sizeable amount, those documents would first be given un-redacted to the outside lawyers of the addressees of the SO, so that the lawyers could select relevant evidence for their clients’ defence. After that, non-confidential versions of the selected documents would be given to the addressees of the SO. The ‘outside lawyers-only’ procedure lasted from November 2011 to January 2012 and more than 1 300 documents were selected as a result. In February 2012, the addressees of the SO received non-confidential versions of the selected documents and on this basis submitted written comments between February and April 2012.

12. Some addressees of the SO made requests for additional access to the Spanish documents. DG Competition accepted almost all of them. I received one request from Prysmian, which I partially granted.

13. In July 2012, the outside lawyers who had been given access to the un-redacted version of the Spanish documents were requested either to destroy or to return to DG Competition these documents and any copy or transcript thereof. Those lawyers were also informed that the documents would remain in the Commission’s file and that they could request a further review at a later stage if they believed this would be justified for the exercise of their clients’ rights of defence.

c. Access to other parties’ replies to the SO before the oral hearing

14. Upon request, DG Competition granted certain parents, subsidiaries and joint venture partners access to parts of each other’s replies to the SO (Prysmian and Pirelli, Prysmian and Goldman Sachs, Mitsubishi and Showa/EXSYM) concerning the issue of parental liability (19). It also granted them the opportunity to submit comments in writing.

15. In this context, I received a request from Goldman Sachs for access to three annexes to Prysmian’s reply to the SO, containing minutes of Prysmian’s board meetings. After review of their contents, I concluded that two of the annexes contained passages which were potentially exculpatory for Goldman Sachs. However, in order to ensure a correct reading of the potentially exculpatory passages in their context, I decided that the whole content of the two annexes had to be disclosed to Goldman Sachs, thereby also allowing the Commission to potentially use them in the decision. In those circumstances, since Prysmian raised objections, I adopted a decision pursuant to Article 8 of Decision 2011/695/EU ordering disclosure of the documents to Goldman Sachs.

16. In addition, I received requests from Nexans and NKT for disclosure of exculpatory evidence in the replies of other addressees to the SO. After I discussed the matter with DG Competition, the latter disclosed, on 16 May and 1 June 2012, potentially exculpatory evidence from the replies of ABB, JPS/Sumitomo/Hitachi, LS Cable, EXSYM and Viscas to the addressees of the SO concerned. In addition, by letter of 1 June 2012 DG Competition informed the addressees of the SO of certain factual inaccuracies in the SO which it had identified following examination of the replies, thereby removing the need to give access to the passages of those replies that had pointed out the inaccuracies concerned. The addressees of the SO were given the opportunity to comment either orally at the hearing or in writing after the hearing.

4. Time limits for replying to the SO

17. The Commission set a time period of 10 weeks in which to respond to the SO; this was due to expire in September 2011. Almost all of the addressees of the SO requested an extension of the deadline. In accordance with Article 10 of Decision 2001/462/EC (20) in force at the time, I dealt with these requests directly.

18. I granted a three-week extension in view of the impact of the summer period on the preparation of the replies to the SO. It is indeed customary that additional time is granted if the period for reply to the SO includes all or part of the month of August (21).

19. I granted an additional one-week extension to certain Asian addressees of the SO on the ground that in preparation of their defence they needed to translate key documents and involve interpreters in communication with their outside lawyers. Other reasons for which I granted extensions were: to allow an addressee of the SO to restore and research historic data after replacement of its IT-system; to allow an addressee of the SO to cope with the departure of an in-house counsel previously in charge of the case; to take account of delays caused to certain addressees of the SO by a technical replacement of the access-to-file DVD (22).

20. As a result of my decisions, the time limits for replying to the SO expired between late September 2011 and mid-November 2011.

21. As mentioned above (23), the addressees of the SO were given the opportunity to submit additional written comments in February and March 2012, supplementing or modifying their first replies to the SO on the basis of their access to the Spanish documents.

22. Certain addressees of the SO requested an extension of the deadline to reply to the SO until the completion of their examination of the Spanish documents (24). I rejected these requests for several reasons. First, at the time these requests were made, certain addressees had already submitted their replies to the SO; granting an extension to those addressees which had not yet submitted their replies would have raised concerns of unequal treatment. Second, Nexans had brought the issue of the Spanish documents to my attention late in the time period for the reply to the SO (25). Third, the rights of defence were fully safeguarded as, once they obtained access to the Spanish documents, the addressees of the SO were allowed to submit additional comments, including any modification of their first reply to the SO (26). Fourth, this approach had the advantage of limiting procedural delays caused by the additional access to the file, as it allowed the case team to start earlier its review of the replies to the SO. Moreover, the Spanish documents were not likely to lead to any radical change of the addressees’ defence; indeed, all the additional comments received were in the line of the arguments made by the addressees of the SO in their first replies to the SO. Finally, organizing access to the Spanish documents was likely to require some time, given the sizeable amount of those documents.

5. Use of languages

23. Brugg, an undertaking based in the German-speaking Swiss canton of Aargau, asked whether it could respond in German to the SO, which it had received in English. DG Competition accepted Brugg’s request. In this context, I noted that DG Competition’s Manual of Procedures provides that undertakings located outside the EEA should preferably be addressed in a EU language they understand and that ‘[p]articular care should be taken when notifying decisions to Swiss undertakings, as one of three languages may be used, depending on the Canton in which the undertaking is established.’ (27). In view of this specific mention in the Manual of Procedures, I called DG Competition’s attention to the fact that any future decision should be addressed to Brugg in German.

6. Oral Hearing

24. The oral hearing lasted 6 days, from 11 to 18 June 2012. All the addressees of the SO participated, except Furukawa (28).

7. Additional access to file after the oral hearing

a. Access to the replies of other parties to requests for information

25. After the oral hearing, DG Competition conducted further fact-finding on issues of parental liability. In this context it addressed requests for information to: Prysmian and Goldman Sachs; Fujikura, Furukawa and Viscas; Mitsubishi, Showa and EXSYM. Within each group of entities, DG Competition granted the parties access to each other’s replies to the requests for information as well as the possibility of submitting written comments. In this context, DG Competition also granted Goldman Sachs access to the written submissions of Prysmian and the opportunity to comment on them further.

b. Additional access to replies to the SO

26. In May 2013, Nexans reiterated its earlier request for access to potentially exculpatory evidence in the replies of the other parties to the SO (29). Following rejection of the request by DG Competition, Nexans referred the matter to me. Upon my intervention, DG Competition provided Nexans access to the non-confidential version of an annex to another addressee’s reply to the SO. This annex contained the sworn statement of an employee of that company, in which reference was made to contacts with Nexans. Following this access, I informed Nexans that I had no indication that there remained other information in the replies to the SO which had to be disclosed to it in accordance with the relevant case law (30).

27. In May 2013, DG Competition also granted Goldman Sachs access to the supplementary comments made by Prysmian in March 2012 following access to the Spanish documents (31).

8. Letter of Facts

28. In September 2013, DG Competition sent Letters of Facts to Fujikura, Furukawa, Goldman Sachs, Mitsubishi and Showa informing them of information and evidence it intended to rely on in the decision to establish parental liability, and set a two-week deadline for them to submit written comments.

29. After being granted a three-day extension by DG Competition, Mitsubishi asked me for an additional nine-day period. I decided to extend the deadline by two days to take into account that the time period to reply to the Letter of Facts overlapped with the date of a state of play meeting of Mitsubishi with the Commission.

30. In the reply to the Letter of Facts, Mitsubishi claimed that the time granted to respond to the Letter of Facts was, notwithstanding the extensions granted, insufficient for it to exercise its rights of defence effectively. Having reviewed Mitsubishi’s reply, I do not find any indication that Mitsubishi was unable effectively to exercise its rights of defence. On the contrary, Mitsubishi’s reply to the Letter of Facts appears to contain a detailed analysis of the evidence annexed to the Letter of Facts.

31. In the reply to the Letter of Facts, Goldman Sachs claimed that its rights of defence had been infringed because it was only after the oral hearing, i.e. in May 2013, that the Commission provided it access to Prysmian’s supplementary comments of March 2012 on the Spanish documents (32). I do not consider that, as a result of obtaining access to Prysmian’s comments of March 2012 only after the oral hearing, Goldman Sachs was unable effectively to exercise its right to be heard. Goldman Sachs has had ample opportunity to submit written comments on Prysmian’s submissions during the proceedings. In particular, after the oral hearing Goldman Sachs made written submissions in June and September 2013.

III. THE DRAFT DECISION

32. After having heard the addressees of the SO in writing and orally, the Commission decided to drop allegations against one party (33). With respect to three addressees of the SO, it decreased the duration of the infringement by approximately 1 year and 9 months, 1 year and 10 months, and 2 years respectively.

33. Pursuant to Article 16 of Decision 2011/695/EU, I have examined whether the draft decision deals only with the objections in respect of which the parties have been afforded the opportunity of making known their views, and I have come to a positive conclusion.

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

Brussels, 31 March 2014. Wouter WILS

(1) Pursuant to Articles 16 and 17 of Decision 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).

(2) Nexans SA and Nexans France SAS (together ‘Nexans’).

(3) Prysmian S.p.A. and Prysmian Cavi e Sistemi Energia S.r.l. (together ‘Prysmian’); Pirelli & C. S.p.A.; The Goldman Sachs Group, Inc.

(4) J-Power Systems Corporation; Hitachi Metals Ltd; Sumitomo Electric Industries, Ltd.

(5) VISCAS Corporation; Furukawa Electric Co. Ltd; Fujikura Ltd.

(6) ABB AB and ABB Ltd (together ‘ABB’).

(7) Brugg Kabel AG and Kabelwerke Brugg AG Holding (together ‘Brugg’).

(8) Silec Cable, SAS and General Cable Corporation (together ‘Silec’); Safran SA.

(9) EXSYM Corporation; SWCC Showa Holdings Co. Ltd; Mitsubishi Cable Industries, Ltd.

(10) LS Cable & System Ltd.

(11) Taihan Electric Wire Co., Ltd.

(12) nkt cables GmbH and NKT Holding A/S (together ‘NKT’).

(13) Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ C 298, 8.12.2006, p. 17).

(14) Case T-135/09 Nexans France SAS and Nexans SA v European Commission and Case T-140/09, Prysmian Spa and Prysmian Cavi e Systemi Energia Srl v European Commission [2012] ECR, not reported.

(15) Case C-37/13P Nexans France SAS and Nexans SA v European Commission (OJ C 101, 6.4.2013, p. 10).

(16) In view of certain technical problems, the access-to-file DVD was later replaced with a new DVD.

(17) Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 81 and 82 of the EC Treaty, Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (OJ C 325, 22.12.2005, p. 7).

(18) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(19) Commission Notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ C 308, 20.10.2011, p. 6), paragraph 103.

(20) See Commission Decision of 23 May 2001 on the terms of reference of the hearing officers in certain competition proceedings (OJ L 162, 19.6.2001, p. 21). This decision has been repealed by Decision 2011/695/EU on 21 October 2011.

(21) See XIIIth Report on Competition Policy (1993), point 207.

(22) See footnote 16.

(23) See point 11.

(24) See points 9 and 10.

(25) Nexans brought the issue of the Spanish documents to my attention almost 3 months after it received access to the file.

(26) See point 11.

(27) See Antitrust Manual of Procedures, module 27, ‘Use of languages in antitrust proceedings’, p. 3/7, available at http://ec.europa.eu/competition/antitrust/antitrust_manproc_3_2012_en.pdf

(28) […].

(29) See point 16.

(30) See, e.g. Case T-133/07 Mitsubishi Electric Corp. v European Commission [2011] ECR II-04219, paragraphs 41-44.

(31) See point 11.

(32) See point 27.

(33) See point 4.