EN Official Journal of the European Union C 301/18

Summary of Commission Decision

of 22 July 2009

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

(Case COMP/39.396 – Calcium Carbide and magnesium based reagents for the steel and gas industries)

(notified under document C(2009) 5791)

(Only the English, German, Slovak and Slovenian language texts are authentic)

(Text with EEA relevance)

2009/C 301/14

On 22 July 2009, the Commission adopted a decision relating to a proceeding under Article 81 of the EC Treaty. 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 decision is available on the Competition Directorate General website at the following address:

http://ec.europa.eu/competition/antitrust/cases/

1. INTRODUCTION

(1) The Decision is addressed to fifteen legal entities for infringing Article 81 of the Treaty and Article 53 of the EEA Agreement. The infringement was committed by the major suppliers of calcium carbide and magnesium to the steel and gas industries. They engaged in market sharing, price fixing, customer allocations and exchange of sensitive information relating to customers in the EEA except Spain, Portugal, UK and Ireland. For the purpose of the Decision the infringement lasted from 7 April 2004 until 16 January 2007.

2. CASE DESCRIPTION

2.1. Procedure

(2) The case was opened on the basis of an immunity application of Akzo Nobel NV. The Commission obtained further evidence from inspections that took place in January 2007. Additionally, the Commission received four applications under the Leniency Notice (Donau Chemie, Almamet, Degussa and NCHZ) and sent out several requests for information.

(3) On 25 June 2008 a Statement of Objections was issued and all undertakings were given the possibility to have access to the file and defend themselves against the preliminary view of the Commission in writing and, on 10 and 11 November 2008, during an Oral Hearing. The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 19 June 2009 and 17 July 2009 and the Commission adopted the Decision on 22 July 2009.

2.2. Summary of the infringement

(4) The Decision concerns a single and continuous infringement of Article 81 EC Treaty and Article 53 of the EEA Agreement regarding calcium carbide powder, calcium carbide granulate and magnesium granulate. Calcium carbide in granular form is used in the gas industry for the production of acetylene (a gas used for welding and cutting purposes). In powder form, calcium carbide is used for desoxidation and desulphurisation in the steel industry. Magnesium granulate is also used for desulphurisation in the steel industry.

(5) The purpose of the cartel was to freeze the market by stabilising the suppliers’ market shares in order to facilitate price increases and stimulate profitability. At the start of the cartel, the participants faced increased costs (cokes and energy), overcapacity (due to technical innovation), increased market power of the customers (due to consolidation in the European steel and gas industry) and direct imports from China (for magnesium granulate).

(6) The members of the cartel agreed on a table fixing each others’ market share and regularly updated this market sharing table in meetings. They also agreed upon price increases and/or individual customer allocations. The members of the cartel coordinated their supplies by means of exchange of information to facilitate and/or monitor the implementation of the agreements on sales volumes and price.

(7) Each addressee is held liable according to its own involvement in the cartel arrangements, that is either as a direct participant, or, in the case of a parent company, because the behaviour of the subsidiary is imputed to the parent given that the parent exercised decisive influence over the conduct of subsidiaries during the period of the infringement.

2.3. Addressees and duration in the infringement

(8) 1.garantovaná a.s. (07.04.2004 – 16.1.2007); Akzo Nobel NV (03.11.2004 – 20.11.2006); Almamet GmbH (22.04.2004 – 16.01.2007); AlzChem Hart GmbH (22.04.2004 – 30.8.2004); ARQUES Industries AG (30.8.2004 – 16.01.2007); Carbide Sweden AB (03.11.2004 – 20.11.2006); Donau Chemie AG (07.04.2004 – 16.01.2007); ECKA Granulate GmbH & Co KG (14.07.2005 – 16.01.2007); Evonik Degussa GmbH (22.04.2004 – 30.8.2004); Holding Slovenske elektrarne d.o.o. (07.04.2004 – 20.12.2006); non ferrum Metallpulver GmbH & Co KG (14.07.2005 – 16.01.2007); Novácke chemické závody, a.s. (07.04.2004 – 16.01.2007); SKW Stahl-Metallurgie GmbH (22.04.2004 – 16.01.2007); SKW Stahl-Metallurgie Holding AG (30.8.2004 – 16.1.2007); TDR Metalurgija d.d. (07.04.2004 – 16.01.2007).

2.4. Remedies

(9) The Decision applies the 2006 Guidelines on Fines. The Decision imposes the fine on Holding Slovenske elektrarne d.o.o., the former parent company of the company TDR Metalurgija d.d. The subsidiary itself had gone into liquidation well before the adoption of the Decision, and does not receive a fine.

2.4.1. Basic amount of the fine

(10) The basic amount is set at 17 % of the undertakings’ sales of goods to which the infringement directly or indirectly related in the relevant geographic area, during the last full business year of its participation in the infringement. Account was taken of the multi-faceted nature of the cartel and of the combined market share.

(11) The basic amount is multiplied by the number of years of participation in the infringement taking fully into account the duration of the participation for each undertaking in the infringement individually.

2.4.2. Adjustments to the basic amount

2.4.2.1. Aggravating circumstances

(12) Recidivism is an aggravating circumstance for Evonik Degussa (one previous cartel decision taken into account) and Akzo Nobel NV (four previous cartel decisions taken in to account), leading to an increase in the fine by 50 % and 100 % respectively.

2.4.2.2. Specific increase for deterrence

(13) 17 % are added due to the nature and the geographic scope of the infringement in order to deter undertakings from even entering into horizontal price-fixing and market-sharing agreements.

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

(14) As regards the application of the 2002 Leniency Notice, Akzo Nobel is granted a reduction of 100 %, Donau Chemie is granted a reduction of 35 % and Evonik Degussa a reduction of 20 %. The applications by Almamet and NCHZ were rejected for not having provided significant added value compared to the information already in the Commission's possession.

2.4.4. Ability to pay according to point 35 of the Guidelines on Fines

(15) Various companies claim their inability to pay the fine. The claims were analysed based on point 35 of the 2006 Guidelines on Fines and were rejected. Outside of the application of point 35 of the 2006 Guidelines on Fines, the company Almamet received a reduction of its fine by 20 % based on an evaluation of its special circumstances, its financial position and the required deterrent effect of the fine.

3. FINES IMPOSED BY THE DECISION

(a) Almamet GmbH: EUR 3 040 000 (b) Carbide Sweden AB and Akzo Nobel NV jointly and severally: EUR 0 (c) Donau Chemie AG: EUR 5 000 000 (d) non ferrum Metallpulver GmbH & Co KG and ECKA Granulate GmbH & Co KG jointly and severally: EUR 6 400 000 (e) Novácke chemické závody and 1.garantovaná a.s. jointly and severally: EUR 19 600 000 (f) SKW Stahl-Metallurgie Holding AG, ARQUES Industries AG and SKW Stahl-Metallurgie GmbH jointly and severally: EUR 13 300 000 (g) Evonik Degussa GmbH, AlzChem Hart GmbH and SKW Stahl-Metallurgie GmbH jointly and severally: EUR 1 040 000 (h) Evonik Degussa GmbH and AlzChem Hart GmbH jointly and severally: EUR 3 640 000 (i) Holding Slovenske elektrarne d.o.o.: EUR 9 100 000

(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).