EN Official Journal of the European Union C 375/7

Summary of Commission Decision

of 28 March 2012

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 COMP/39.462 — Freight forwarding)

(notified under document C(2012) 1959)

(Only the English and German texts are authentic)

(Text with EEA relevance)

2012/C 375/05

On 28 March 2012, 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) On 28 March 2012, the Commission adopted a decision relating to four separate infringements of Article 101 of the Treaty and Article 53 of the EEA Agreement in the freight forwarding sector. By these infringements the addressees of the decision coordinated their pricing behaviour in the provision of international freight forwarding services with respect to four different surcharges/charging mechanisms: new export system (NES), advanced manifest system (AMS), currency adjustment factor (CAF) and peak season surcharge (PSS).

2. CASE DESCRIPTION

2.1. Procedure

(2) Following the immunity application of Deutsche Post AG under the terms of the 2006 Leniency Notice, the Commission carried out inspections on 10 October 2007 and received subsequent leniency applications from Deutsche Bahn AG, Public Warehousing Company, KSC, ABX Logistics, CEVA Group Plc., Nippon Express Co., Ltd, [*] and Yusen group.

(3) On 5 February 2010, the Commission adopted a statement of objections in this case. All addressees of the statement of objections made known in writing their views on the objections raised against them and were given the opportunity to exercise their right to be heard by participating in an oral hearing that was held on 6-9 July 2010.

(4) The Advisory Committee on restrictive practices and dominant positions issued a favourable opinion on 19 and 26 March 2012.

2.2. Summary of the infringements

(5) The NES is a pre-clearance system for UK exports outside the EEA which was introduced by UK authorities in 2002. Several freight forwarders organised one meeting of a group of forwarders and in that meeting they agreed to introduce a surcharge for NES declarations. They further agreed on the level and timing of the introduction of the surcharge. Following the meeting, the cartel participants exchanged several e-mails in order to monitor the implementation of the agreement on the market. The anticompetitive contacts lasted from 1 October 2002 until 10 March 2003.

(6) The AMS is a customs procedure introduced by US authorities which requires delivery of information regarding cargo shipments prior to their arrival to the US territory. A number of freight forwarders had several meetings already prior to the implementation of the new measures by the US authorities, during which they coordinated their pricing behaviour. The main forum for their discussions was the freight forwarders' association Freight Forward Europe (since 2004 Freight Forward International). The freight forwarders agreed on the introduction of the surcharge and on the fact that the AMS surcharge should not be used as a tool for competition among them. The freight forwarders also attempted to agree on the amount of the surcharge and at some instances exchanged its intended levels. The cartel contacts took place between 19 March 2003 and 19 August 2004.

(7) The CAF cartel originated as a reaction to the appreciation of the Chinese currency Renminbi (RMB) against the US dollar in 2005. Several global freight forwarders active on the Chinese market organised and attended a number of meetings to discuss on a common approach and agreed on: (i) a shift of all contracts with their customers to RMB and, if this was not possible, (ii) an introduction of a surcharge (a currency adjustment factor) and its level. During the subsequent meetings and e-mail exchanges, the undertakings further shared their experience with the acceptance of the agreed measures on the market. The discussions took place in China between 27 July 2005 and 13 March 2006.

(8) PSS is a temporary rate adjustment that freight forwarders agreed to apply in specific peak season time periods. This rate adjustment followed seasonal increases in demand for transport services on specific lanes resulting in an increase of prices for these services. A number of freight forwarders gathered in Hong Kong at several so called ‘Breakfast Meetings’ where they agreed on the introduction of the surcharge on the lane from Hong Kong/South China to Europe and on the timing of its imposition. Moreover, at some instances the undertakings also discussed the level of the PSS. The undertakings agreed on introduction of the PSS for each of the years 2005, 2006 and 2007 and the cartel contacts took place from 9 August 2005 until 21 May 2007.

2.3. Addressees

(9) The following undertakings infringed Article 101 of the Treaty and Article 53 of the EEA Agreement by participating, during the periods indicated, in four separate infringements in the air freight forwarding sector, which consisted of fixing prices or other trading conditions:

(10) In case of the NES infringement, covering the territory of the United Kingdom: (a) Schenker Limited (as an economic successor of BAX Global Ltd (UK)) from 1 October 2002 until 10 March 2003; (b) CEVA Freight (UK) Limited, EGL, Inc. from 1 October 2002 until 10 March 2003; (c) DHL Global Forwarding (UK) Limited, Deutsche Post AG from 1 October 2002 until 10 March 2003; (d) Exel Freight Management (UK) Limited, Exel Limited from 1 October 2002 until 10 March 2003; (e) Kuehne + Nagel Ltd (entity based in the United Kingdom), Kuehne + Nagel International AG from 1 October 2002 until 10 March 2003; (f) UPS Supply Chain Solutions, Inc. (as an economic successor of Menlo Worldwide Forwarding, Inc.) from 1 October 2002 until 10 March 2003.

(11) In case of the AMS infringement, covering the whole European Economic Area: (a) DSV Air & Sea SAS from 19 March 2003 until 19 August 2004; (b) Agility Logistics Limited from 19 March 2003 until 19 August 2004; (c) DHL Management (Schweiz) AG, Deutsche Post AG from 19 March 2003 until 19 August 2004; (d) Exel Freight Management (UK) Limited from 25 March 2003 until 19 August 2004, Exel Group Holdings (Nederland) BV from 21 October 2003 until 19 August 2004, Exel Limited from 25 March 2003 until 19 August 2004; (e) Kuehne + Nagel Management AG, Kuehne + Nagel International AG from 8 April 2003 until 19 August 2004; (f) Panalpina Management AG, Panalpina World Transport (Holding) Ltd from 19 March 2003 until 19 August 2004; (g) Schenker AG, Deutsche Bahn AG from 25 March 2003 until 19 August 2004; (h) UPS Supply Chain Solutions, Inc., United Parcel Service, Inc. from 19 March 2003 until 21 October 2003; (i) UTi Worldwide (UK) Ltd from 19 March 2003 until 21 October 2003, UTi Nederland BV from 21 October 2003 until 19 August 2004, UTi Worldwide, Inc. from 19 March 2003 until 19 August 2004.

(12) In case of the CAF infringement, covering the whole European Economic Area: (a) Schenker China Ltd (as an economic successor of BAX Global (China) Co. Ltd) from 27 July 2005 until 13 March 2006; (b) Schenker China Ltd, Deutsche Bahn AG from 29 July 2005 until 13 March 2006; (c) Beijing Kintetsu World Express Co., Ltd from 27 July 2005 until 13 March 2006; (d) CEVA Freight Shanghai Limited, EGL, Inc. from 27 July 2005 until 13 March 2006; (e) DHL Global Forwarding (China) Co. Ltd from 27 July 2005 until 13 March 2006; (f) DHL Logistics (China) Co., Ltd from 27 July 2005 until 13 March 2006; (g) Kuehne + Nagel Ltd (entity based in Shanghai), Kuehne + Nagel International AG from 27 July 2005 until 13 March 2006; (h) Nippon Express (China) Co., Ltd from 27 July 2005 until 31 October 2005; (i) Panalpina China Ltd, Panalpina World Transport (Holding) Ltd from 27 July 2005 until 9 December 2005; (j) UPS SCS (China) Ltd, United Parcel Service, Inc. from 27 July 2005 until 13 March 2006; (k) Yusen Shenda Air & Sea Service (Shanghai) Ltd from 27 July 2005 until 31 October 2005.

(13) In case of the PSS infringement, covering the whole European Economic Area: (a) Agility Logistics Limited (Hong Kong) from 9 August 2005 until 21 May 2007; (b) DHL Global Forwarding (Hong Kong) Limited, Deutsche Post AG from 9 August 2005 until 21 May 2007; (c) DHL Supply Chain (Hong Kong) Limited, Exel Limited from 9 August 2005 until 13 January 2006; (d) Expeditors Hong Kong Ltd, Expeditors International of Washington, Inc. from 21 September 2005 until 23 June 2006; (e) Hellmann Worldwide Logistics Ltd Hong Kong, Hellmann Worldwide Logistics GmbH & Co. KG from 6 December 2005 until 21 May 2007; (f) Kuehne + Nagel Ltd (entity based in Hong Kong), Kuehne + Nagel International AG from 9 August 2005 until 21 May 2007; (g) Panalpina China Ltd, Panalpina World Transport (Holding) Ltd from 9 August 2005 until 21 May 2007; (h) Schenker International (HK) Ltd, Deutsche Bahn AG from 3 September 2005 until 23 June 2006; (i) Toll Global Forwarding (Hong Kong) Limited, Toll Global Forwarding Limited from 9 August 2005 until 21 May 2007.

2.4. Remedies

(14) The Decision applies the 2006 Guidelines on fines (2).

2.4.1. Basic amount of the fine

(15) In view of the short duration of the NES, AMS and CAF infringements, the Commission calculated a proxy for annual value of sales (based on the actual value of freight forwarding sales in the EEA made by the undertakings in the relevant period of their participation in the infringements) to be used as the basis for the calculation of the basic amount of the fines to be imposed for each of the infringements.

(16) In view of the seasonal characteristics of the PSS infringement, the Commission calculated a proxy for annual value of sales (based on the actual value of freight forwarding sales in the EEA made by the undertakings in the relevant peak season periods within their participation in the PSS infringement) to be used as the basis for the calculation of the basic amount of the fines to be imposed.

(17) Considering the nature of the infringements and their geographic scope, the percentage for the variable amount of the fine and the additional amount (‘entry fee’) is set at 16 % of the value of sales for the AMS, CAF and PSS infringements and at 15 % of the value of sales for the NES infringement.

(18) The variable amount is multiplied by the number of years or by fractions of the year respectively of the company's participation in the infringement in order to take fully into account the duration of the participation for each undertaking in the infringement individually.

(19) The NES cartel lasted for five months in the case of all companies. The variable amount was multiplied by 0,41.

(20) The AMS cartel lasted for one year and five months in the case of all companies (the variable amount is multiplied by 1,41) except for Exel Limited group, Kuehne + Nagel International AG group and Deutsche Bahn AG group, for which the duration was one year and four months (the variable amount is multiplied by 1,33), and United Parcel Service, Inc. group, for which the duration was seven months (the variable amount is multiplied by 0,58).

(21) The CAF cartel lasted for seven months in the case of all companies (the variable amount is multiplied by 0,58) except for Panalpina World Transport (Holding) Ltd, for which the duration was four months (the variable amount is multiplied by 0,33) and Nippon Express (China) Co., Ltd and Yusen Shenda Air & Sea Service (Shanghai) Ltd, for which the duration was three months (the variable amount is multiplied by 0,25).

(22) The PSS cartel lasted for one year and nine months in the case of all companies (the variable amount is multiplied by 1,75) except for Hellmann Worldwide Logistics GmbH & Co. KG group, for which the duration was one year and five months (the variable amount is multiplied by 1,41), Expeditors International of Washington, Inc. group and Deutsche Bahn AG group, for which the duration was nine months (the variable amount is multiplied by 0,75) and Exel Limited group, for which the duration was five months (the variable amount is multiplied by 0,41).

2.4.2. Adjustments to the basic amount

(23) There are no aggravating or attenuating factors taken into account by the Commission in this case.

2.4.3. Specific increase for deterrence

(24) In this case, a deterrence multiplier of 1,2 is applied in to Deutsche Post AG group (in relation to the NES, AMS and PSS infringements) and of 1,1 to Deutsche Bahn AG group (in relation to the AMS and PSS infringements) and United Parcel Service, Inc. group (in relation to the AMS and CAF infringements).

2.4.4. Application of the 10 % turnover limit

(25) The final individual amounts of the fines are below 10 % of the worldwide turnovers of the addressed undertakings.

2.4.5. Application of the 2006 Leniency Notice

(26) Deutsche Post AG group was the first undertaking to submit information and evidence meeting the conditions of point 8(a) of the 2006 Leniency Notice. The fine to be imposed is reduced by 100 % for all four infringements.

(27) Deutsche Bahn AG group is granted a 25 % reduction for the AMS infringement, 20 % reduction for the CAF infringement and 50 % reduction for the PSS infringement, which also includes an additional reduction in application of the last paragraph of point 26 of the Leniency Notice to the extent that the information provided by Deutsche Bahn AG group enabled the Commission to establish facts extending the duration of the PSS infringement.

(28) Public Warehousing Company, KSC group is granted a 30 % reduction for the AMS infringement and 25 % reduction for the PSS infringement

(29) CEVA Group Plc. group is granted a 35 % reduction for the NES infringement and 50 % reduction for the CAF infringement, which also includes an additional reduction in application of the last paragraph of point 26 of the Leniency Notice to the extent that the information provided by CEVA enabled the Commission to establish facts extending the duration of the CAF infringement.

(30) Yusen group was granted a 5 % reduction for the CAF infringement.

3. FINES IMPOSED BY THE DECISION

(31) For the single and continuous infringement in relation to the NES, the following fines are imposed: (a) Schenker Limited (as an economic successor of BAX Global Ltd (UK)): EUR 3 673 000; (b) CEVA Freight (UK) Limited and EGL, Inc., jointly and severally liable: EUR 2 094 000; (c) DHL Global Forwarding (UK) Limited and Deutsche Post AG: EUR 0; (d) Exel Freight Management (UK) Limited and Exel Limited: EUR 0; (e) Kuehne + Nagel Ltd (entity based in the United Kingdom) and Kuehne + Nagel International AG, jointly and severally liable: EUR 5 320 000; (f) UPS Supply Chain Solutions, Inc. (as an economic successor of Menlo Worldwide Forwarding, Inc.): EUR 2 264 000.

(32) For the single and continuous infringement in relation to the AMS, the following fines are imposed: (a) DSV Air & Sea SAS: EUR 379 000; (b) Agility Logistics Limited: EUR 2 296 000; (c) DHL Management (Schweiz) AG and Deutsche Post AG: EUR 0; (d) Exel Freight Management (UK) Limited, Exel Group Holdings (Nederland) BV and Exel Limited: EUR 0; (e) Kuehne + Nagel Management AG and Kuehne + Nagel International AG, jointly and severally liable: EUR 36 686 000; (f) Panalpina Management AG and Panalpina World Transport (Holding) Ltd, jointly and severally liable: EUR 23 649 000; (g) Schenker AG, and Deutsche Bahn AG, jointly and severally liable: EUR 23 091 000; (h) UPS Supply Chain Solutions, Inc. and United Parcel Service, Inc., jointly and severally liable: EUR 3 582 000; (i) UTi Worldwide, Inc., UTi Worldwide (UK) Ltd and UTi Nederland BV, jointly and severally liable: EUR 1 273 000; (j) UTi Worldwide, Inc.: EUR 1 795 000 of which jointly and severally liable with UTi Worldwide (UK) Ltd: EUR 738 000 and UTi Nederland BV: EUR 954 000.

(33) For the single and continuous infringement in relation to the CAF, the following fines are imposed: (a) Schenker China Ltd (as an economic successor of BAX Global (China) Co. Ltd): EUR 2 444 000; (b) Schenker China Ltd and Deutsche Bahn AG, jointly and severally liable: EUR 3 071 000; (c) Beijing Kintetsu World Express Co., Ltd: EUR 623 000; (d) CEVA Freight Shanghai Limited and EGL, Inc., jointly and severally liable: EUR 935 000; (e) DHL Global Forwarding (China) Co. Ltd: EUR 0; (f) DHL Logistics (China) Co., Ltd: EUR 0; (g) Kuehne + Nagel Ltd (entity based in Shanghai) and Kuehne + Nagel International AG, jointly and severally liable: EUR 451 000; (h) Nippon Express (China) Co., Ltd: EUR 812 000; (i) Panalpina China Ltd and Panalpina World Transport (Holding) Ltd, jointly and severally liable: EUR 3 251 000; (j) UPS SCS (China) Ltd, and United Parcel Service, Inc., jointly and severally liable: EUR 3 916 000; (k) Yusen Shenda Air & Sea Service (Shanghai) Ltd: EUR 319 000.

(34) For the PSS infringement, the following fines are imposed: (a) Agility Logistics Limited (Hong Kong): EUR 2 662 000; (b) DHL Global Forwarding (Hong Kong) Limited and Deutsche Post AG: EUR 0; (c) DHL Supply Chain (Hong Kong) Limited and Exel Limited: EUR 0; (d) Expeditors Hong Kong Ltd and Expeditors International of Washington, Inc., jointly and severally liable: EUR 4 140 000; (e) Hellmann Worldwide Logistics Ltd Hong Kong and Hellmann Worldwide Logistics GmbH & Co. KG, jointly and severally liable: EUR 4 281 000; (f) Kuehne + Nagel Ltd (entity based in Hong Kong) and Kuehne + Nagel International AG, jointly and severally liable: EUR 11 217 000; (g) Panalpina China Ltd and Panalpina World Transport (Holding) Ltd, jointly and severally liable: EUR 19 584 000; (h) Schenker International (HK) Ltd and Deutsche Bahn AG, jointly and severally liable: EUR 2 656 000; (i) Toll Global Forwarding (Hong Kong) Limited and Toll Global Forwarding Limited, jointly and severally liable: EUR 2 918 000.

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

(2) OJ C 210, 1.9.2006, p. 2.