EN Official Journal of the European Union C 143/4

Summary of Commission Decision

of 21 February 2018

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.39920 – Braking Systems)

(notified under document C(2018) 925)

(Only the English text is authentic)

(2018/C 143/04)

On 21 February 2018, 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 21 February 2018, the Commission adopted a Decision relating to two single and continuous infringements of Article 101 of the Treaty and Article 53 of the EEA Agreement. The infringements concerned the exchange of sensitive business information for the purpose of reducing competitive uncertainty in the area of sales of hydraulic braking system components and electronic braking systems for passenger cars to a number of car manufacturers in the EEA.

(2) Braking systems are an essential input for car manufacturers. Hydraulic braking systems consist of an actuation system (brake booster/main brake cylinder) and a foundation system (disc brake with saddle or drum brake and wheel brake cylinder). Electronic braking systems prevent cars from skidding by providing electronic stability controls when braking (ABS) or under all driving conditions (ESC).

(3) This Decision is addressed to TRW (2), Bosch (3) and Continental (4) (the ‘Parties’).

2. CASE DESCRIPTION

2.1. Procedure

(4) In July 2011, TRW applied for immunity under the 2006 Leniency Notice in respect of bilateral contacts with Bosch concerning sales of braking systems for passenger cars to customer Daimler. In November 2011, the Commission carried out inspections at the premises of Bosch. Also in November 2011, Bosch submitted a leniency application in respect of sales of hydraulic braking systems for passenger cars to customer Daimler and reported its bilateral contacts with TRW and Continental in that regard. In September 2014, the Commission carried out inspections at the premises of Continental. In December 2014, Continental submitted a leniency application in respect of sales of hydraulic braking systems for passenger cars to customer Daimler and BMW and reported its bilateral contacts with both TRW and Bosch in that regard. Continental also reported its bilateral contacts with Bosch in respect of sales of electronic braking systems for passenger cars to customer VW.

(5) On 22 September 2016, the Commission initiated proceedings with a view to engaging in settlement discussions with the parties. During those discussions, which took place between October 2016 and September 2017, all parties reacted to the envisaged objections and evidence disclosed to them. Subsequently, the Parties submitted their formal requests to settle to the Commission pursuant to Article 10a(2) of Regulation (EC) No 773/2004 (5).

(6) On 4 December 2017, the Commission adopted the Statement of Objections. All parties unequivocally confirmed that the Statement of Objections corresponded to the contents of their settlement submissions and that they therefore remained committed to follow the settlement procedure.

(7) On 19 February 2018, the Advisory Committee on Restrictive Practices and Dominant Positions was consulted. On 20 February 2018, the Hearing Officer issued his final report.

2.2. Summary of the Infringements

(8) The two separate infringements concern the supply of braking system components or braking systems for passenger cars in the EEA. The scope of the infringements is as follows: Infringement I : Coordination between TRW, Bosch and Continental concerning supplies of hydraulic braking system components to customers Daimler (Mercedes brand) and BMW (BMW brand). Infringement II : Coordination between Continental and Bosch concerning supplies of electronic braking systems to customer VW for the MLB evo-platform.

2.2.1. Infringement I

(9) Infringement I consisted of contacts between the three automotive suppliers TRW, Bosch and Continental concerning sales in the EEA of hydraulic braking system components (brake booster/main brake cylinder, disc brake with saddle or drum brake and wheel brake cylinder) excluding brake discs (‘HBS’) for passenger cars to customers Daimler (Mercedes-Benz brand) and BMW (BMW brand).

(10) The collusive conduct consisted of bilateral exchanges of competitively sensitive business information between the three suppliers. With the aim of coordinating their market conduct relating to Daimler and BMW, the participants exchanged information regarding their willingness to accept Daimler's 3-year-policy and BMW's 4-year-policy clause (6), respectively, and discussed the purchasing terms and conditions of Daimler and BMW. The exchanges concerning Daimler also related to raw material cost compensation, cost transparency and volume reductions.

2.2.2. Infringement II

(11) Infringement II consisted of bilateral collusive exchanges between Continental and Bosch concerning sales in the EEA of electronic braking systems (EBS) for passenger cars for the MLB evo-platform (7) of customer VW.

(12) Following RFQs for the MLB evo-platform, the parties discussed their interest in the contract, disclosed their intentions to each other and exchanged information on their respective offers.

2.3. Duration

(13) The duration of the participation of each party in the infringements was as follows: Table 1 Infringement Undertaking Scope: Sales of Start End I TRW, Bosch HBS (to Daimler to BMW) 13.2.2007 29.6.2010 18.3.2011 18.3.2011 Continental HBS (to Daimler to BMW) 13.2.2007 29.6.2010 19.3.2010 18.3.2011 II Continental, Bosch EBS (to VW for MLB evo-platform) 29.9.2010 7.7.2011

3. ADDRESSEES

3.1.1. TRW

(14) Liability for the infringement is imputed to TRW as follows: — for Infringement I, jointly and severally to ZF TRW Automotive Holdings Corp., TRW KFZ Ausrüstung GmbH and Lucas Automotive GmbH for the period from 13 February 2007 until 18 March 2011

3.1.2. Bosch

(15) Liability for the infringements is imputed to Bosch as follows: — for Infringement I, to Robert Bosch GmbH for the period from 13 February 2007 until 18 March 2011; — for Infringement II, to Robert Bosch GmbH for the period from 29 September 2010 until 7 July 2011.

3.1.3. Continental

(16) Liability for the infringements is imputed to Continental as follows: — for Infringement I, jointly and severally to Continental AG, Continental Teves AG & Co. oHG and Continental Automotive GmbH for the period from 13 February 2007 until 18 March 2011; — for Infringement II, jointly and severally to Continental AG and Continental Teves AG & Co. oHG for the period from 29 September 2010 until 7 July 2011.

4. REMEDIES

(17) The Decision applies the 2006 Guidelines on fines (8).

4.1. Basic amount of the fine

(18) In Infringement I, the value of sales was calculated on the basis of averages of sales of HBS in the EEA to Daimler and BMW in the (full) years of participation in the infringement.

(19) In Infringement II, the value of sales was calculated on the basis of averages of sales of EBS in the EEA to VW in the years of participation in the infringement. As Continental had no actual relevant sales in this period, a fictional value of sales was calculated for it, as a proxy of its relative size and responsibility in the infringement, on the basis of the ratio of worldwide turnovers of the participants applied to the relevant sales of Bosch.

(20) Considering the nature of the infringements and their geographic scope, the percentage for the variable amount of the fines, as well as the additional amount (‘entry fee’), was set at 16 % of the value of sales for the infringements.

(21) The variable amount was multiplied by the number of years or by fractions of the year respectively of the Parties' individual participation in the infringement(s). The increase for duration was calculated on the basis of days.

4.1.1. Adjustments to the basic amount.

(22) There were no aggravating or mitigating circumstances in this case, other than an aggravating factor of 50 % for Continental due to recidivism (previously addressee of Commission decision of 28 January 2009 in case AT.39406 Marine Hoses).

(23) A deterrence multiplier of 1,2 is applied to Bosch and of 1,1 to Continental to take account of the comparatively large size of these undertakings.

4.2. Application of the 10 % of turnover limit

(24) None of the fines calculated exceed 10 % of the respective undertaking's total turnover in 2017.

4.3. Application of the Leniency Notice

4.3.1. Immunity from fines

(25) TRW was the first to submit information and evidence meeting the conditions of point 8(a) of the 2006 Leniency Notice in Infringement I. TRW was thus granted immunity from fines for Infringement I.

(26) Continental was the first to submit information and evidence meeting the conditions of point 8(b) of the 2006 Leniency Notice in Infringement II. Continental was therefore granted immunity from fines for Infringement II. Continental was also first to submit compelling evidence in the sense of point 25 of the 2006 Leniency Notice that enabled the Commission to include sales to a customer in Infringement I. In accordance with point 26 of the 2006 Leniency Notice, the value of sales to this customer was not taken into account when setting the fine for Continental for Infringement I.

(27) Continental was the second undertaking to meet the requirements of points 24 and 25 of the Leniency Notice as regards Infringement I and was granted a reduction of 20 % of the fine.

(28) Bosch was the first undertaking to meet the requirements of points 24 and 25 of the 2006 Leniency Notice as regards Infringements I and II and was granted a reduction of the fine of 35 % for Infringement I and 30 % for Infringement II.

4.4. Application of the Settlement Notice

(29) As a result of the application of the Settlement Notice, the amount of the fines to be imposed on each Party was reduced by 10 %. The reduction was added to their leniency reward.

5. FINES IMPOSED BY THE DECISION

(30) The following fines were imposed pursuant to Article 23(2) of Regulation (EC) No 1/2003: for the single and continuous infringement I lasting from 13 February 2007 until 18 March 2011, (a) on ZF TRW Automotive Holdings Corp., TRW KFZ Ausrüstung GmbH and Lucas Automotive GmbH jointly and severally: EUR 0; (b) on Robert Bosch GmbH: EUR 12 072 000; (c) on Continental AG, Continental Teves AG & Co. oHG and Continental Automotive GmbH jointly and severally: EUR 44 006 000. for the single and continuous infringement II lasting from 29 September 2010 until 7 July 2011: (a) on Continental AG and Continental Teves AG & Co. oHG jointly and severally: EUR 0; (b) on Robert Bosch GmbH: EUR 19 348 000.

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

(2) The relevant legal entities for TRW are: ZF TRW Automotive Holdings Corp., TRW KFZ Ausrüstung GmbH and Lucas Automotive GmbH.

(3) The relevant legal entity for Bosch is: Robert Bosch GmbH.

(4) The relevant legal entities for Continental are: Continental AG, Continental Teves AG & Co. oHG and Continental Automotive GmbH.

(5) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18).

(6) In 2008, Daimler asked for price commitments for after-series components. Suppliers were asked to supply components for 3 years after the end of production at the same price as during the active series production phase of a given vehicle, hence ‘3 year policy’ or ‘3YP’. BMW's ‘4YP’ led to a similar customer request.

(7) This platform is used to produce certain Audi models and the Porsche Macan.

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