EN Official Journal of the European Union C 67/5

Summary of Commission Decision

of 6 April 2016

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.39965 — Mushrooms)

(notified under document C(2016) 1933)

(Only the English text is authentic)

(2017/C 67/07)

On 6 April 2016, 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) This Decision concerns a single and continuous infringement of Article 101 of the Treaty on the Functioning of the European Union (the Treaty) and Article 53 of the Agreement on the European Economic Area (the EEA Agreement). The infringement, in which the addressees Grupo Riberebro Integral S.L. and Riberebro Integral S.A.U. (hereinafter together referred to as ‘Riberebro’) participated together with other undertakings, consisted of price coordination and customer allocation for mushrooms sold in cans and jars (hereinafter referred to as ‘canned mushrooms’) and lasted at least from 1 September 2010 to 28 February 2012.

(2) The anticompetitive conduct concerned by the present proceedings relates to canned mushrooms in tins and jars. The cartel identified in these proceedings covered the private label sales via tender procedures to retailers and the food service channel.

(3) This Decision follows a Decision adopted under the settlement procedure against the other undertakings in the cartel.

2. CASE DESCRIPTION

2.1. Procedure

(4) The Case started end 2011 on the basis of an immunity application under the Commission notice on immunity from fines and reduction of fines in cartel cases (2). The Commission carried out inspections under Article 20(4) of Regulation (EC) No 1/2003 at the premises of various mushroom producers in France, the Netherlands and Spain, and sent them thereafter several requests for information under Article 18 of Regulation (EC) No 1/2003.

(5) On 21 May 2012 Riberebro submitted a leniency application.

(6) On 9 April 2013, the Commission initiated proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003 against Bonduelle, Lutèce, Prochamp and Riberebro, with a view to engaging in settlement discussions (3). The Commission also announced its intention to grant Riberebro a reduction of the fine for its leniency cooperation within the range of 30-50 % foreseen in the Leniency Notice.

(7) Subsequently, all parties, except Riberebro, submitted to the Commission their formal request to settle pursuant to Article 10a(2) of Regulation (EC) No 773/2004 (4).

(8) On 25 June 2014, the Commission adopted a Settlement Decision addressed to the settling parties holding them liable for their respective conduct in this case (5).

(9) On 27 May 2015, the Commission adopted a Statement of Objections under the normal procedural rules addressed to Riberebro. Subsequently, the Commission gave Riberebro access to the accessible parts of the Commission’s investigation file. On 17 July 2015, Riberebro replied to the Statement of Objections stating that it does not contest the description of the facts and the legal assessment set out therein and provided comments with regard to its cooperation under the Leniency Notice. Riberebro did not request an Oral Hearing.

(10) On 4 April 2016 the Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion and the Commission adopted the Decision against Riberebro on 6 April 2016.

2.2. Summary of the infringement

(11) The overall aim of this cartel was to stabilise the market shares for canned mushrooms and stop the decline of prices in the EEA with focus on Western European countries. The cartel was a non-aggression pact with a compensation scheme in case of customer transfer and application of minimum prices which had been agreed beforehand.

(12) To achieve this aim, Riberebro participated in numerous regular multilateral meetings with its competitors and occasionally had additional contacts on a bilateral basis. In these contacts, Riberebro exchanged confidential information with its competitors on tenders, participated in the setting of minimum prices, and agreed on volume targets and customer allocations.

(13) The Commission considers that Riberebro participated in a single and continuous infringement of Article 101 of the Treaty and Article 53 of the EEA Agreement from at least 1 September 2010 to 28 February 2012.

(14) The evidence shows that Riberebro pursued with the contacts the same anti-competitive objective and economic aim as the other parties in the cartel, namely that of stabilising market shares for canned mushrooms and stopping the decline of prices.

(15) The geographic scope of the conduct was EEA-wide – with focus on Western European countries.

2.3. Addressees

(16) Grupo Riberebro Integral S.L. and Riberebro Integral S.A.U. are held jointly and severally liable for the undertaking’s involvement in the infringement. Riberebro Integral S.A.U was the main entity for the sales of canned mushrooms within the undertaking and it was a wholly owned subsidiary of Grupo Riberebro Integral S.L., the top legal entity of the undertaking.

2.4. Remedies

(17) The Commission applies the 2006 Guidelines on Fines (6).

2.4.1. Basic amount of the fine

(18) In setting the fines, the Commission took into account the value of Riberebro’s sales of canned mushrooms in the last full business year of its participation in the infringement, namely 2011.

(19) The basic amount of the fine is set at 17 % of the value of sales, as defined above, to reflect the nature, the geographic scope and the fact that the infringement has been thoroughly implemented. This basic amount is multiplied by the duration of participation in the infringement (1 September 2010 to 28 February 2012). An additional amount of 17 % of the value of sales is added to deter the undertaking from entering a cartel.

2.4.2. Application of the 10 % turnover limit

(20) The fine does not exceed 10 % of Riberebro’s total turnover in 2015.

2.4.3. Application of the 2006 Leniency Notice: reduction of fines

(21) The Commission grants Riberebro a 50 % reduction of the fine as it was the first undertaking to meet the requirements of points 24 and 25 of Leniency Notice and its cooperation substantially strengthened the Commission’s ability to prove the case.

2.4.4. Ability to pay (ITP) the fine

(22) Based on point 35 of the Guidelines on fines, the Commission analysed and rejected Riberebro’s claims for inability to pay.

3. CONCLUSION

(23) The fine pursuant to Article 23(2) of Regulation (EC) No 1/2003 imposed on Grupo Riberebro Integral S.L. and Riberebro Integral S.A.U. jointly and severally is EUR 5 194 000.

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

(2) Commission notice on immunity from fines and reduction of fines in cartel cases (OJ C 298, 8.12.2006, p. 17).

(3) Article 10a(2) of Regulation (EC) No 773/2004.

(4) OJ L 123, 27.4.2004, p. 18.

(5) Commission Decision C(2014) 4227 final of 25 June 2014 (OJ C 453, 17.12.2014, p. 21).

(6) 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).