EN Official Journal of the European Union C 396/5

Final Report of the Hearing Officer (1)

(Case AT.40018 — Car battery recycling)

(2017/C 396/05)

INTRODUCTION

1. This case concerns a single and continuous infringement of Article 101(1) of the TFEU consisting in the coordination of pricing behaviour between undertakings relating to the purchase of scrap lead-acid automotive batteries in Germany, Belgium, France and the Netherlands from 23 September 2009 until 26 September 2012. The undertakings that are found in the draft decision to have participated in the cartel are: Campine (2), Eco-Bat (3), JCI (4) and Recylex (5) (together the ‘addressees of the draft decision’).

PROCEDURE

2. The case stems from an application for immunity from fines submitted by JCI on 22 June 2012. Following unannounced inspections carried out in September 2012, the Commission received leniency applications from Eco-Bat, Recylex and Campine.

3. In the course of the investigation, the Commission sent several requests for information to the addressees of the draft decision and to other undertakings.

4. On 24 June 2015, the Commission initiated proceedings under Article 2 of Commission Regulation (EC) No 773/2004 (6), and adopted a statement of objections (‘SO’) against the addressees of the draft decision. The Commission also informed Eco-Bat and Recylex of its intention to grant a reduction of a fine within a specified band, and informed Campine of its intention not to grant a reduction of a fine within a specified band. The SO was also adopted against a fifth undertaking which is not an addressee of the draft decision.

5. The Directorate-General for Competition (‘DG Competition’) initially granted a deadline of eight weeks to respond to the SO which was subsequently extended finally expiring on 4 September 2015 for JCI and Recylex, on 7 September 2015 for Eco-Bat, and on 14 September 2015 for Campine.

6. All the addressees of the SO received a DVD containing the accessible documents in the Commission's file, and they had also access to the parts of the Commission's file that were accessible only at the Commission's premises.

7. In its reply to the SO Campine requested access to the responses of the other addressees of the SO which DG Competition denied on 19 November 2015 based, in particular, on the general rule under point 27 of the Commission Notice on the rules for access to the Commission file (7). On 26 October 2015 Eco-Bat submitted a similar request which DG Competition denied on the same grounds.

8. All the addressees of the SO participated and presented their observations at an oral hearing on 17 and 18 November 2015. During the hearing the Commission asked certain questions to the parties which, at their request, I have allowed time to submit written answers after the oral hearing. The parties replied to those questions, and some addressees of the SO also submitted additional comments on specific issues. These replies and comments were circulated among all the addressees of the SO.

9. During the oral hearing, Eco-Bat approached me reiterating its request to have access to the responses of the other addressees of the SO in light of the presentations made during the oral hearing. Considering that the replies of the other addressees of the SO did not reveal any new evidence, exculpatory or incriminating, which had not already been disclosed to the addressees of the SO, I have rejected such request by a decision pursuant to Article 7 of Decision 2011/695/EU.

10. On 18 October 2016, the Commission sent a letter of facts to Eco-Bat regarding the figures to be used for the calculation of a possible fine to which Eco-Bat replied on 2 November 2016.

11. On 13 December 2016, the Commission sent a letter to the addressees of the draft decision informing them that, when determining the amount of the fine imposed in this case, the Commission intends to apply a specific increase under point 37 of the 2006 Guidelines on fines (8), and invited these addressees to provide comments on this letter.

12. In their comments to the Commission's letter of 13 December 2016, some addressees of the draft decision raised due process issues. In particular, one addressee noted that the SO did not mention the possibility of the application of point 37 of the Guidelines, and that such application would amount to a change of the fining methodology for which a new SO and a new oral hearing would be necessary. The same addressee further argued that the adoption of a new fining methodology 18 months following the adoption of the SO amounts to a breach of the principle of good administration. Other addressees also argued that the planned application of point 37 is not sufficiently motivated, and that it would therefore infringe the principle of legal certainty and violate due process.

13. It is settled case-law that, provided the Commission indicates expressly in the SO the principal elements of fact and law that may give rise to a fine (9), the Commission fulfils its obligation to respect the undertakings' right to be heard (10). Further matters relevant to any subsequent calculation of fines can always be communicated to the undertakings concerned at a later date (11), which the Commission did in the present case with respect to its intention to apply a specific increase of the fine under point 37 of the Guidelines. Therefore, in my view, the exercise of the rights of defence of the addressees of the draft decision was duly respected, and the delay observed in the communication of the specific fine increase has not unduly impacted the principle of good administration.

14. Apart from the above procedural issues, I have not received any other request or complaint.

DRAFT DECISION

15. After hearing the addressees of the SO, the Commission dropped its objections against one undertaking. It also reduced the scope of the suspected infringement in comparison with the preliminary assessment contained in the SO limiting it exclusively to automotive batteries. With respect to Eco-Bat, the preliminary finding of recidivism in the SO is dropped. In relation to Campine, a reduction of the amount of the fine is applied for mitigating circumstances whereas no reduction is granted under the Leniency Notice.

16. I have reviewed the draft decision pursuant to Article 16(1) of Decision 2011/695/EU, and I conclude that it deals only with objections in respect of which the addressees of this decision have been afforded the opportunity of making known their views.

17. Overall, I conclude that all parties have been able to effectively exercise their procedural rights in this case.

Brussels, 6 February 2017. Joos STRAGIER

(1) Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29) (‘Decision 2011/695/EU’).

(2) Campine NV and Campine Recycling NV (together ‘Campine’).

(3) Eco-Bat Technologies Ltd, Berzelius Metall GmbH and Société de traitement chimique des métaux SAS (together ‘Eco-Bat’).

(4) Johnson Controls, Inc., Johnson Controls Tolling GmbH & Co.KG and Johnson Controls Recycling GmbH (together ‘JCI’).

(5) Recylex SA, Fonderie et manufacture de métaux SA and Harz-Metall GmbH (together ‘Recylex’).

(6) 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) (‘Regulation (EC) No 773/2004’).

(7) OJ C 325, 22.12.2005, p. 7.

(8) Point 37 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2) of Regulation No 1/2003 (OJ C 210, 1.9.2006, p. 2) (the ‘Guidelines’).

(9) Elements such as gravity and duration of the alleged infringement and the fact that it has been committed intentionally or negligently.

(10) See e.g. Toshiba v Commission (T-404/12, ECLI:EU:T:2016:18, paragraph 40).

(11) Even if the Commission is under no legal obligation to do so (The Antitrust Best Practices Notice (OJ C 308, 20.10.2011, p. 6), point 85).