EN Official Journal of the European Union C 57/10

Summary of Commission Decision

of 20 November 2007

relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement

(Case COMP/38.432 — Professional videotapes)

(notified under document number C(2007) 5469 final)

(Only the English text is authentic)

(Text with EEA relevance)

(2008/C 57/08)

I. INTRODUCTION

(1) On 20 November 2007, the Commission adopted a decision relating to a proceeding under Article 81 of the EC Treaty 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. A non-confidential version of the full text of the decision can be found in the authentic language of the case at the Directorate General for Competition's web-site: http://ec.europa.eu/comm/competition/index_en.html

II. CASE DESCRIPTION

1. Procedure

(2) This case started as an ex officio investigation with dawn raids on 28 and 29 May 2002 at a total of eleven premises belonging to members of the Sony, Fuji and Maxell groups in five Member States. Two incidents occurred at Sony's premises, one involving the destruction of documents, the other a refusal to reply to questions.

(3) On 5 December 2006, Fuji formally applied for a reduction of fines under the 2002 Leniency Notice (2). Its application made reference to information previously submitted to the Commission since June 2002. By letter of 23 February 2007, the Commission informed Fuji of its intention to grant Fuji a reduction of 30 to 50 % of the fine under the 2002 Leniency Notice.

(4) The Statement of Objections was adopted on 8 March 2007 and notified to all the parties by 16 March 2007.

(5) On 10 April 2007 Maxell formally applied for a reduction of fines under the 2002 Leniency Notice. Its application made reference to information previously submitted to the Commission since October 2004.

(6) An oral hearing was held on 12 June 2007.

2. Summary of the infringement

(7) TV-stations and independent producers of TV-content and advertising films are the main customers of professional videotape. The decision concerns only the two most popular professional videotape formats at the time of the infringement: Betacam SP and Digital Betacam, which together represented 77 % of all professional videotape sales in the EEA in 2001. The estimated EEA market value for these two formats was approximately EUR 118 million in 2001. For that year, the three undertakings involved in the infringement held an estimated market share of 89 %.

(8) The decision concludes that Sony, Fuji and Maxell operated between 23 August 1999 and 16 May 2002 a cartel with a view to increasing and maintaining or stabilising prices for Betacam SP and Digital Betacam videotape in the EEA market, and also exchanged information to facilitate and/or monitor their implementation.

(9) The companies organised three (successful) rounds of price increases and otherwise endeavoured to stabilise the prices. They also regularly discussed past and forthcoming tenders, typically from public and private TV-stations.

(10) There were 11 meetings between representatives of the three undertakings during the period of the infringement, in all of which they discussed and agreed prices and/or exchanged sensitive commercial information, as well as continuous contacts between meetings to discuss prices and specific clients and to follow-up the implementation of the cartel agreements.

(11) The decision further concludes that it has been established that the agreements on prices were generally implemented.

3. Addressees

(12) The decision is addressed to the following legal entities, which belong to the three participating undertakings (Sony, Fuji and Maxell): (a) Sony Corporation; (b) Sony Europe Holding BV; (c) Sony France SA; (d) FUJIFILM Holdings Corporation; (e) FUJFILM Corporation; (f) FUJIFILM Recording Media GmbH; (g) Hitachi Maxell, Ltd; and (h) Maxell Europe Limited.

(13) Liability of the ultimate parent companies is established both because of their direct participation in one of the cartel meetings, which was held in Japan, and on the basis of the presumption of the exercise of decisive influence over their wholly-owned subsidiaries, which is reinforced by several additional indicia.

4. Remedies

(14) This is the first cartel case in which the 2006 Guidelines on Fines (3) have been applied.

4.1. Basic amount of the fine

(15) The basic amount of the fine is determined as a proportion of the value of the sales of the relevant product made by each undertaking in the relevant geographic area during the last full business year of the infringement (‘variable amount’), multiplied by the number of years of infringement, plus an additional amount (‘entry fee’), also calculated as a proportion of the value of sales, which is meant to enhance deterrence in respect of horizontal price fixing agreements.

(16) Having considered different factors, in particular the nature, the combined market share and the geographic scope of the infringement, the decision applies in this case a variable amount of 18 % and an entry fee of 17 %.

(17) Taking into account that the infringement lasted for at least 2 years and 8 months, the variable amount is multiplied by 3.

4.2. Adjustments to the basic amount

4.2.1. Aggravating circumstances: refusal to cooperate or obstruction

(18) As mentioned in paragraph 2, two separate incidents occurred at Sony's premises during the inspection. The decision concludes that both incidents constituted obstruction and justify an increase of 30 % in the basic amount imposed on Sony.

4.2.2. Mitigating circumstances

(19) The parties argued for the application of a series of mitigating circumstances such as early termination of the infringement, limited involvement in the infringement, effective co-operation outside the Leniency Notice, isolated and unauthorized conduct without senior management's knowledge and introduction of a compliance program after the infringement. These claims are all rejected.

4.2.3. Specific increase for deterrence

(20) Taking into account the need to ensure that fines have a sufficiently deterrent effect, and in consideration of the large size of Sony's turnover beyond the sales of goods or services to which the infringement relates, the decision increases the fine to be imposed to this undertaking by 10 %.

4.3. Application of the 10 % turnover limit

(21) The 10 % worldwide turnover limit provided for in Article 23(2) of Regulation (EC) No 1/2003 is not attained in respect of the fine to be imposed on any of the undertakings.

4.4. Application of the 2002 Leniency Notice: reduction of fines

(22) As mentioned under paragraphs 5 and 6 above, both Fuji and Maxell filed applications for a reduction of fines under the 2002 Leniency Notice.

(23) The decision grants a reduction of the fine of 40 % for Fuji and 20 % for Maxell. These percentages of reduction take into account the extent to which the evidence submitted by each company represented added value, as well as the time at which this evidence was submitted.

(24) Sony's contribution to this case was limited to not contesting most of the facts after having received the Statement of Objections. The decision concludes that this does not constitute significant added value under the Leniency Notice.

III. DECISION

(25) The following undertakings infringed Article 81 of the Treaty and Article 53 of the EEA Agreement by participating, from 23 August 1999 until 16 May 2002, in a complex of agreements and concerted practices with a view to increasing and to maintaining or stabilising prices for Betacam SP and Digital Betacam videotape in the EEA market: (a) Sony Corporation; (b) Sony Europe Holding BV; (c) Sony France SA; (d) FUJIFILM Holdings Corporation; (e) FUJFILM Corporation; (f) FUJIFILM Recording Media GmbH; (g) Hitachi Maxell, Ltd; and (h) Maxell Europe Limited.

(26) For the infringement referred to in the previous paragraph, the following fines are imposed: (a) Sony Corporation, Sony Europe Holding BV and Sony France SA, jointly and severally: EUR 47 190 000; (b) FUJIFILM Holdings Corporation, FUJFILM Corporation and FUJIFILM Recording Media GmbH, jointly and severally: EUR 13 200 000; (c) Hitachi Maxell, Ltd and Maxell Europe Limited, jointly and severally: EUR 14 400 000.

(27) The undertakings listed above are ordered to immediately bring to an end the infringement insofar as they have not already done so and to refrain from repeating any act or conduct described in paragraph 25 and from any act or conduct having the same or similar object or effect.

(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 45, 19.2.2002, p. 3).

(3) 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).