SUMMARY OF COMMISSION DECISION

of 20 April 2021

relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union

(Case AT.40330 – Rail cargo)

(notified under document number C(2021)2521 final)

(Only the English text is authentic)

(2021/C 398/09)

On 20 April 2021, the Commission adopted a decision relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union. 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) freight sharing model This Decision relates to a single and continuous infringement of Article 101 of the Treaty on the Functioning of the European Union (‘the Treaty’). The infringement concerned cross-border rail cargo transport services in the European Union ( 2 ) provided under the so-calledmodel ( 3 ) and carried out in blocktrains ( 4 ) by the three railway undertakings Österreichische Bundesbahnen (ÖBB), Deutsche Bahn (DB) and Société Nationale des Chemins de fer belges/Nationale Maatschappij der Belgische Spoorwegen (SNCB). The conduct amounted to anti-competitive customer allocation and lasted from December 2008 to April 2014.

2. CASE DESCRIPTION

2.1. Procedure

(2) Following an application for immunity from fines under the Leniency Notice from ÖBB in April 2015 the Commission carried out unannounced inspections at the premises of DB in Germany in September 2015.

(3) In October 2015, DB applied for a reduction of fines under the Leniency Notice.

(4) The Commission sent several requests for information to various railway undertakings and in September 2016, SNCB applied for a reduction of fines under the Leniency Notice.

(5) On 4 April 2019, the Commission initiated proceedings pursuant to Article 2(1) of Regulation (EC) No 773/2004 against the addressees of this Decision with a view to engaging in settlement discussions with them. Settlement meetings between each party and the Commission took place between May 2019 and August 2020. Subsequently, all parties submitted their formal request to settle pursuant to Article 10(2) of Regulation (EC) No 773/2004. ( 5 )

(6) On 4 December 2020, the Commission adopted a Statement of Objections. All parties replied to the Statement of Objections confirming that it reflected the contents of their settlement submissions and that they remained committed to following the settlement procedure.

(7) The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 15 April 2021.

(8) On 16 April 2021, the Hearing Officer issued a final report in this case.

2.2. Summary of the infringement

(9) This case concerns customer allocation relating to cross-border rail cargo transport services by DB, ÖBB and SNCB. The anticompetitive conduct took place between December 2008 and April 2014. It concerned conventional transports of goods in blocktrains, except in the automotive sector, carried out under the so-called freight sharing model. Under the freight sharing model, railway undertakings cooperating on a given cross-border rail cargo transport service provide the customer with a single overall price for the entire service required under a single multilateral contract.

(10) freight sharing model, is outside the scope of Article 101(1) of the Treaty by virtue of Council Regulation (EC) No 169/2009 freight sharing model, DB, ÖBB and SNCB held occasional meetings and had other contacts in which conduct took place which went beyond what was required to carry out joint cross border rail cargo transport services which do not fall under the exceptions foreseen by Council Regulation (EC) No 169/2009. Cooperation by railway undertakings on the joint provision of cross-border rail cargo services as such, including joint pricing in the framework of themodel, is outside the scope of Article 101(1) of the Treaty by virtue of Council Regulation (EC) No 169/2009 ( 6 ) and is not put in question by the proceedings in this case. ( 7 ) However, apart from legitimate contacts in the context of cooperation in the framework of themodel, DB, ÖBB and SNCB held occasional meetings and had other contacts in which conduct took place which went beyond what was required to carry out joint cross border rail cargo transport services which do not fall under the exceptions foreseen by Council Regulation (EC) No 169/2009.

(11) DB, ÖBB and SNCB protected each other’s position as lead carrier for existing business. Under the freight sharing model, the lead carrier is the railway undertaking which acts as main interlocutor with the customer, although all railway undertakings involved become parties to the transport contract (unlike in a sub-contracting relationship).

(12) The role of lead carrier can have important advantages, notably in building and maintaining customer relationships, which potentially provide further and/or future business opportunities. ( 8 ) Mutual recognition of the role of lead carrier in ’existing business’ was therefore at the core of the collusive scheme operated by DB, ÖBB and SNCB. The conduct was implemented by contacts between DB, ÖBB, and later SNCB, at all levels of business operations in the undertakings. DB, ÖBB and SNCB were at the time all vertically integrated railway undertakings, providing both railway services (traction) and logistics / shipping agent services within their groups. ( 9 )

(13) The mutual understanding between the parties was that the lead carrier position for ‘existing business’ should be protected for the rail undertaking which held that position for a given existing business, and that any switching of the lead carrier position by that customer should be avoided. To protect the role of lead carrier, DB, ÖBB and SNCB abstained from making offers to potential other customers, or made cover quotes to potential other customers who asked for quotes for an ‘existing business’.

(14) The collusive scheme was implemented through competitor contacts concerning the protection of the role of lead carrier for one of the parties or to agree amongst themselves which carrier would be the lead carrier for a given ‘existing business’ where it was occasionally in dispute.

(15) The collusive scheme served to ensure that discussions during ongoing customer contracts or on the occasion of renewal/prolongation of customer contracts would not result in a change of the lead carrier.

(16) The collusive scheme applied to cross-border rail cargo transport services on routes starting in, ending in or passing through Germany or Austria and carried out by DB and ÖBB.

(17) Cross-border rail cargo transports carried out by DB and ÖBB in this way extended also to Hungary (where ÖBB had taken over the incumbent railway undertaking) and to the Netherlands (where DB had taken over the incumbent railway undertaking).

(18) The same applied to transports starting or ending in Belgium carried out together with SNCB. SNCB participated in the infringement only to the extent that such trilateral transports were concerned.

(19) There is a consistent pattern of collusive contacts between DB and ÖBB relating to the lead carrier role in rail cargo transport services on blocktrains carried out under the freight sharing model since 8 December 2008. Collusive trilateral contacts between DB, ÖBB and SNCB started on 15 November 2011. The last collusive contact between DB, ÖBB and SNCB took place on 30 April 2014. On this basis, the overall infringement is considered to have lasted from 8 December 2008 to 30 April 2014. The starting date for SNCB however, was 15 November 2011. The duration of the infringement has been determined on the basis of the documentary evidence in the Commission file proving the first and last collusive contacts between the parties.

(20) SNCB did not participate in the scheme as concerns bilateral cross-border rail cargo transport services, which only DB and ÖBB carried out together.

2.3. Addressees

(21) This Decision is addressed to the following entities: ÖBB: — Österreichische Bundesbahnen-Holding Aktiengesellschaft; — Rail Cargo Austria Aktiengesellschaft; DB: — Deutsche Bahn AG; — DB Cargo AG; — DB Cargo BTT GmbH; SNCB: — Société Nationale des Chemins de fer belges/Nationale Maatschappij der Belgische Spoorwegen (SNCB/NMBS) SA de droit public/NV van publiek recht ; — LINEAS Group NV (formerly SNCB Logistics NV/SA); — LINEAS NV (formerly Xpedys NV/SA).

2.4. Remedies

(22) This Decision applies the 2006 Guidelines on Fines. ( 10 )

2.4.1. Basic amount of the fine

(23) The relevant value of sales is each undertaking’s sales of conventional cross-border rail cargo transport services (except in the automotive sector) in 2013, provided on blocktrains under the freight sharing model and carried out in cooperation a) by the three railway undertakings DB, ÖBB and SNCB and starting or ending in or passing through Austria or Hungary, Germany or the Netherlands and Belgium and b) by DB and ÖBB and starting or ending in or passing through Austria or Hungary and Germany or the Netherlands.

(24) Considering the nature of the infringement and the geographic scope the percentage of the variable amount of the fines as well as the additional amount (the ‘entry fee’) is set at 15% of the value of sales.

2.4.2. Adjustments to the basic amount

Aggravating circumstances: recidivism

(25) According to point 28 of the Guidelines on fines, where an undertaking continues or repeats the same or a similar infringement after the Commission or a national competition authority has made a finding that the undertaking infringed Article 101 or 102 of the Treaty, the basic amount will be increased by up to 100 % for each such infringement established.

(26) Deutsche Bahn AG, the ultimate parent company of the group, was an addressee of a previous Commission cartel prohibition decision in case AT.39462 - Freight Forwarding in March 2012.

(27) The basic amount of the fine for Deutsche Bahn AG is therefore increased by 50 %.

Mitigating circumstances

(28) There are no mitigating circumstances.

Specific increase for deterrence

(29) A deterrence multiplier of 1.1 is applied to DB due to its large worldwide turnover.

Application of the 10 % turnover limit

(30) None of the fines calculated for any of the parties exceeds 10 % of the undertaking’s total turnover in 2019.

Application of the 2006 Leniency Notice

(31) ÖBB was the first to submit information and evidence meeting the conditions of point 8(a) of the 2006 Leniency Notice in the infringement. ÖBB is therefore granted immunity from fines.

(32) DB was the first undertaking to meet the requirements of points 24 and 25 of the 2006 Leniency Notice. DB applied for leniency at a relatively early stage of the investigation. It submitted evidence of the infringement, which represented significant added value with respect to the evidence already in the Commission’s possession. DB is therefore granted a reduction of 45 % of the fine.

(33) SNCB was the second undertaking to meet the requirements of points 24 and 25 of the 2006 Leniency Notice. SNCB’s leniency application also represented added value and considerably facilitated the establishment of the infringement, notably with regard to DB. SNCB is therefore granted a reduction of 30 % of the fine.

Application of the Settlement Notice

(34) According to point 32, the amount of the fine to be imposed on each party is further reduced by 10 %.

3. CONCLUSION

(35) The following fines were imposed pursuant to Article 23(2) of Regulation (EC) No 1/2003: Undertaking Fines (EUR) ÖBB 0 DB 48 324 000 SNCB 270 000

(1) OJ L 1, 4.1.2003, p. 1. Regulation as amended by Regulation (EC) No 411/2004 (OJ L 68, 6.3.2004, p. 1).

(2) The United Kingdom withdrew from the European Union as of 1 February 2020. Accordingly, any reference made to the EU in this Decision does not include the United Kingdom.

(3) See below paragraphs 9ss.

(4) Blocktrains are cargo trains shipped from one site (e.g. the production site of the vendor of the transported goods) to another site (e.g. a warehouse of the purchaser of the goods) without being split up or stored on the way. Such blocktrains serve high-volume customers, often carry a single commodity and run on the same unchanged destination for long periods. Rail cargo transport services covered by Commission Decision of 15 June 2015 in case AT.40098 - Blocktrains are excluded from the scope of this case.

(5) OJ l 123, 27.4.2004, p.18.

(6) Council Regulation (EC) No 169/2009 of 26 February 2009 applying rules of competition to transport by rail, road and inland waterway (OJ L 61, 5.3.2009, p. 1).

(7) Joint price formation processes are provided for in Art. 2 (1) of Council Regulation (EC) No 169/2009.

(8) Ancillary services offered may consist, for example, in transport to/from loading/unloading train stations and storage services for transported goods.

(9) DB, ÖBB and SNCB are the incumbents in Germany, Austria and Belgium. DB took over cargo operations in the Netherlands from the former incumbent in 2003, ÖBB in Hungary in late 2007.

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