SUMMARY OF COMMISSION DECISION

of 17 December 2020

replacing the fines set by Decision C(2015) 4336 final of 24 June 2015 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union to the extent that it concerns CCPL S.c., Coopbox Group S.p.A. and Coopbox Eastern s.r.o.

(Case AT.39563 – Retail Food Packaging)

(notified under document C(2020) 894)

(Only the English and Italian texts are authentic)

(2021/C 245/12)

On 17 December 2020, the Commission adopted a decision replacing the fines set by a previous 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) On 24 June 2015, the European Commission adopted a decision addressed to ten undertakings (eight manufacturers and two distributors) for infringing Article 101 of the Treaty on the Functioning of the European Union (TFEU) and, for some of the addressees, also of Article 53 of the EEA Agreement and imposed a total amount of fines of EUR 115 865 000 (the ‘2015 Decision’). The 2015 Decision concerns polystyrene plastic trays (‘foam trays’) used for retail packaging of fresh food such as meat, poultry, fruits and fish. It finds five separate cartels each qualified as single and continuous and delineated by their geographic scope: Italy, South-West Europe (‘SWE’), North-West Europe (‘NWE’), France and Central-Eastern Europe (‘CEE’).

(2) The 2015 Decision imposed fines totalling EUR 33 694 000 on the five addressees of the CCPL Group ( 2 ) for their participation in the infringements relating to Italy, SWE and CEE.

2. CASE DESCRIPTION

2.1. Procedure

(3) On 11 July 2019, the General Court annulled the fines imposed on the addressed legal entities of the CCPL Group in their entirety (case T-522/15, ‘the 2019 Judgment’). It upheld the plea of the applicants that the Commission had insufficiently motivated its inability to pay assessment and rejected all the other pleas.

(4) On 18 September 2019, the Commission informed CCPL that it intended to adopt a new decision imposing fines on the relevant entities of the CCPL Group for the three infringements they participated in and invited these entities to submit their observations. On 4 October 2019, CCPL submitted its observations and informed the Commission that Coopbox Hispania S.l.u. entered into liquidation in 2018 and Poliemme Srl was incorporated into Coopbox Group S.p.A. in 2017.

(5) On 15 December 2020, the Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on the decision.

2.2. Addressees and duration

(6) The present decision is addressed to three legal entities of CCPL Group: CCPL S.c., Coopbox Group S.p.A. and Coopbox Eastern s.r.o..

(7) As found in the 2015 Decision, these entities participated in three separate infringements of Article 101 TFEU covering the following geographic areas and periods: a) Italy: Coopbox Group S.p.A. and CCPL S.c. for the period from 18 June 2002 to 17 December 2007; b) SWE: CCPL S.c. for the period from 26 June 2002 to 13 February 2008 and; c) CEE: Coopbox Eastern s.r.o. for the period from 5 November 2004 to 24 September 2007, and CCPL S.c. for the period from 8 December 2004 to 24 September 2007.

2.3. Summary of the infringements

(8) The infringements are described in the 2015 Decision. The three separate cartels consisted of price increases (CEE, Italy, and SWE), market sharing (CEE and SWE), customer allocation (CEE, Italy and SWE) and bid-rigging (CEE and Italy) concerning foam trays.

2.4. Remedies

(9) The Decision applies the 2006 Guidelines on Fines ( 3 ) and imposes fines on the three relevant entities of CCPL Group as listed under point 2.2 above.

2.4.1. Basic amount of the fine

(10) In setting the fines, the Commission took into account the undertaking’s sales of foam trays (including standard, absorbent and barrier trays) for retail food packaging in the last full business year of its participation in each of the three cartels, the fact that horizontal price-fixing, market-sharing and bid-rigging are by their very nature among the most harmful restrictions of competition, the duration of the cartels and an additional amount to deter undertakings from entering into cartel arrangements.

2.4.2. Adjustments to the basic amount

(11) The Commission did not apply any aggravating or mitigating circumstances.

2.4.3. Application of the 10 % turnover limit

(12) The fines exceed the legal maximum of 10 % of the CCPL Group’s total turnover of 2019 in respect to the infringements in Italy and SWE. Therefore, the fines for these two infringements have been reduced to that percentage.

2.4.4. Application of the 2006 Leniency Notice

(13) The Commission granted reductions of 20 %, 30 % and 30 % of the fines respectively in respect to the infringements in Italy, SWE and CEE.

2.4.5. Reduction of fines due to lapse of time

(14) The Commission granted an exceptional 5 % reduction of the fine in each cartel to reflect the considerable duration of the proceeding and the special circumstances of this case. The reduction was applied after the application of the 10% turnover limit in order to ensure that it had an impact on the fines imposed on all addressees.

2.4.6. Ability to Pay

(15) CCPL requested a reduction of the fine based on point 35 of the Guidelines on Fines (‘Inability to Pay’). The decision concludes that the conditions for ‘Inability to Pay’ are not met and therefore does not reduce the fine on this basis.

3. CONCLUSION

(16) The following fines were imposed pursuant to Article 23(2) of Regulation (EC) No 1/2003: For the infringement related to Italy: a) Coopbox Group S.p.A. and CCPL S.c., jointly and severally: EUR 4 627 000. For the infringement related to SWE: a) CCPL S.c.: EUR 4 010 000. For the infringement related to CEE: a) Coopbox Eastern s.r.o. and CCPL S.c., jointly and severally: EUR 789 000; b) Coopbox Eastern s.r.o.: EUR 15 000.

(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) These entities are CCPL S.c., Coopbox Group S.p.A., Poliemme S.r.l., Coopbox Hispania S.l.u. and Coopbox Eastern s.r.o..

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