2003/5/EC: Commission Decision of 13 December 2000 relating to a proceeding under Article 81 of the EC Treaty (COMP/33.133-B: Soda-ash — Solvay, CFK) (notified under document number C(2000) 3794) (Text with EEA relevance)
Date: 2000-12-13
Institutions: European Commission
Subjects: Belgium, Germany, chemical industry, chemical salt, inter-company agreement, market-sharing agreement, restriction on competition

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(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 13 December 2000

relating to a proceeding under Article 81 of the EC Treaty

(COMP/33.133-B: Soda-ash (cid:151) Solvay, CFK)

(notified under document number C(2000) 3794)

(Only the French text is authentic)

(Text with EEA relevance)

(2003/5/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

PART I

THE FACTS

Having regard to Council Regulation No 17 of 6 February
1962, First Regulation implementing Articles 85 and 86 of the
Treaty (1),
(EC) No
1216/1999 (2), and in particular Articles 3 and 15 thereof,

by Regulation

amended

last

as

Having regard to the Commission’s Decision of 19 February
1990 to open a proceeding on its own initiative pursuant to
Article 3 of Regulation No 17,

(1)

Having given the undertaking concerned the opportunity to
make known its views on the objections
raised by the
Commission,
in accordance with Article 19(1) of Regulation
No 17 and Commission Regulation No 99/63/EEC of 25 July
1963 on the hearings provided for in Article 19 (1) and (2) of
Regulation No 17 (3),

consulting the Advisory Committee on Restrictive

After
Practices and Dominant Positions,

Whereas:

(1) OJ 13, 21.2.1962, p. 204/62.
(2) OJ L 148, 15.6.1999, p. 5.
(3) OJ 127, 20.8.1963, p. 2268/63.

A. Summary of the infringement

1. Investigations

The present Decision arises out of investigations carried
out by the Commission in March 1989 pursuant to
Article 14(3) of Regulation No 17 at the premises of
Community producers of soda ash. By means of the said
investigations and subsequent enquiries under Article 11
of Regulation No 17 the Commission discovered
an
documentary evidence
infringement of Article 85 of
the EEC Treaty (now
Article 81 of the EC Treaty) had been committed by the
following undertakings:

inter alia

showing,

that

(cid:151) Solvay et Cie SA (now Solvay SA), Brussels (Solvay),

(cid:151) Chemische Fabrik Kalk, Cologne (CFK).

2. The infringement of Article 81 by Solvay and CFK

(2)

From a date unknown in about 1987 to at least 1989
Solvay and CFK participated in an agreement and/or
concerted practice contrary to Article 81 of the Treaty
by which, for each of the years 1987, 1988 and 1989,
Solvay guaranteed CFK a minimum sales
tonnage
calculated by reference to a formula based on CFK’s

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achieved sales in Germany during 1986 of 179 000
tonnes and compensated CFK for any shortfall by
purchasing from it the tonnages required to bring its
sales to the guaranteed minimum.

(cid:151) Akzo,

(cid:151) Matthes & Weber (M & W),

B. The soda ash market

1. The product

(3)

(4)

(5)

(6)

The present procedure concerns
soda ash (sodium
carbonate), an alkaline chemical commodity which is
mainly used as a raw material
in the manufacture of
glass. Soda ash is the primary source of sodium oxide,
which acts as a flux in the glass-melting process. Soda
ash is also used in the chemical
industry for making
detergents and in metallurgy.

In Europe, soda ash is manufactured from common salt
and limestone by the (cid:145)ammonia-soda(cid:146) process invented
by Solvay in 1865. The Solvay process initially produces
light ash which requires a further stage of densification
the dense form. The two forms are
to produce
chemically identical but dense ash is the preferred form
for glass manufacture.

In the United States, so-called (cid:145)natural(cid:146) soda ash is mined
from trona ore deposits found mainly in Wyoming.
After mining, the trona ore is purified and roasted in
refineries. Natural soda ash is produced only in dense
form. Natural ash is also found in Africa and Australia.

All soda ash produced in the United States is now
obtained naturally (the last synthetic production plant
was closed by 1986) while in Europe the entire
production is of synthetic material. By reason of
its
lower salt content, natural soda ash from the United
States is particularly suitable for the manufacture of
glass, and some glass producers who purchase mainly
synthetic ash may seek to mix it with American natural
ash in order to achieve the required concentration.

2. The producers

(7)

During the period under consideration there were six
producers of synthetic soda ash in the Community:

(cid:151) Solvay,

(cid:151) Imperial Chemical Industries (ICI),

(cid:151) Rh(cid:244)ne-Poulenc,

(cid:151) Chemische Fabrik Kalk, Cologne (CFK).

(8)

(9)

(10)

(11)

Solvay was the largest single producer of synthetic soda
ash both worldwide and in the Community: it operated
plants in Austria, Belgium, France, Germany, Italy, Spain
and Portugal, and with some 60 % of the west European
market was the undisputed market leader.

Solvay had an established (cid:145)Direction nationale(cid:146) ((cid:145)DN(cid:146)) for
each of Austria, Belgium and Luxembourg, France,
Germany,
the Netherlands, Portugal, Spain and
Switzerland to handle its commercial activities, with the
headquarters in Brussels exercising a supervisory and
coordinating role.

Italy,

ICI Soda Ash Products had since 1987 been operated as
a separate business within ICI’s Chemicals and Polymers
Division. Formerly it was part of ICI’s Mond Division.

ICI was the second largest Community producer of soda
ash, with two manufacturing sites
in Northwich,
Cheshire, but it confined its sales in the Community
almost exclusively to the United Kingdom and Ireland
and held over 90 % of the United Kingdom market.

3. The market worldwide

annum,

around 1 % per

(12) Worldwide demand for soda ash during the 1980s grew
although there were
at
In the developed
substantial
countries demand was static from 1980 until 1987,
after which there was a considerable upturn in the
market. Over half the soda ash produced worldwide was
consumed by the glass industry.

regional divergences.

(13) World soda ash capacity (natural and synthetic) in 1989
was around 36 million tonnes (nominal) per annum, of
which the Community accounted for some 7,2 million
tonnes, with Solvay having capacity of some 4,3 million
tonnes and ICI 1 million tonnes. (Practical or effective
capacity was some 85(cid:151)90 % of (cid:145)nameplate(cid:146) capacity.)
Soda ash consumption in the Community in 1989 was
around 5,5 million tonnes annually, worth some ECU
900 million.

(14)

The six United States natural ash producers had total
nominal capacity of 9,5 million tonnes per year and a
domestic market demand in 1989 of some 6,5 million.
Natural ash production in the United States in 1989
was
almost 9 million tonnes. The United States
producers supplied the whole of their home market and
exported the balance of production. Costs of production

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(15)

(16)

of natural ash are very much lower
the
synthetic product, but the mines are located far from
their principal markets
are
correspondingly high.

and distribution costs

than for

the

European manufacturers

The United States producers of dense ash were viewed
the major
by
competitive threat
the
exchange rates prevailing in the late 1980s it was
possible for those producers to sell in Europe at prices
substantially below the local market price without
dumping.

in their home markets. At

as

The east European producers accounted for some 30 %
of world soda ash capacity, producing around 9 million
tonnes annually. The Soviet Union consumed over half
the production and was a net importer. Almost all of
the excess production exported by the east European
light ash. Despite the
countries was in the form of
existence of
still
there were
substantial
imports into the Community of light soda
ash from Comecon countries.

anti-dumping duties,

(17) During the 1980s there was a marked increase in
demand and soda ash was fully sold worldwide. Plants
were running at maximum output
in 1990. Chinese
manufacture was to increase by some 500 000 tonnes
per annum and production in Botswana (for South
Africa) was
another 300 000 tonnes,
developments which were to result in the displacement
of imports from other production areas.

to produce

(18)

(19)

4. The Community

Solvay was the market leader with almost 60 % of the
total Community market and sales in all Member States
except for the United Kingdom and Ireland. After three
years of stagnant demand in the mid-1980s, sales of
ash in western Europe began to increase
soda
substantially in 1987.
In 1988 and 1989 producers
worked at full capacity.

still

for soda ash in the late
The west European market
1980s was
characterised by separation along
national lines. The producers tended to concentrate their
sales on those Member States where they possessed
production facilities, although from 1981 or 1982
onwards the smaller producers (cid:151) CFK, M & W and
Akzo (cid:151) increased their
(cid:145)home(cid:146)
markets.

sales outside their

(20)

There was no competition between Solvay and ICI, each
limiting its Community sales to its traditional (cid:145)spheres of
influence(cid:146) in continental western Europe and the British
Isles respectively. Both ICI and Solvay had substantial

export business
to non-European overseas markets
which were supplied from the Community. A large part
of ICI’s exports in fact consisted of material supplied by
Solvay on ICI’s behalf.

(21)

In the Member States where Solvay was the sole locally
established producer (Italy, Portugal and Spain) it had a
virtually complete monopoly.

(22)

Solvay’s market share was in excess of 80 % in Belgium,
ICI had over
55 % in France and 52 % in Germany.
90 % of the UK market, the only alternative sources of
supply being the United States and Poland.

(23) On the demand side,

the main customers

in the
Community were the glass manufacturers. Some 65 to
70 % of the output of the west European manufacturers
flat and hollow
was used in the manufacture of
(container) glass. Soda ash was one of the major cost
components in glass production, accounting for some
60 % of raw material batch costs. Most glass producers
operate continuous process plants and require an
they had a
assured supply of ash.
relatively long-term contract with one major supplier
for the larger part of their requirements, with another
supplier as a secondary source. During the 1980s the
a Europe-wide
glass
consolidation with large manufacturers operating on a
pan-European basis
and manufacturing in several
Member States. The chemical industry took some 20 %
of soda ash consumption and metallurgical applications
around 5 %.

In most cases

industry was

subject of

the

5. United States natural ash

(24)

Since the development of natural ash mining in the
1960s the United States market had shown a substantial
excess of capacity over domestic demand, and in the
late 1980s a surplus of some 2,5 million tonnes was
available annually for export.

(25) Given the over-supply and the presence of a number of
producers with similar costs, the United States’ domestic
market was marked by strong price competition. The
product was sold in the United States at a substantial
discount off (cid:145)list(cid:146) price (USD 93/short ton fob Wyoming)
the net ex-works price at the end of 1989 being around
USD 73/short ton, to which must be added transport
costs to the East Coast industrial centres. List prices
were raised by most producers to USD 98/short ton
with effect from 1 July 1990 and the effective price
went up to around USD 85.

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(26)

In 1982 United States

The pressure to export
led to the United States’
producers attempting to penetrate the European and
other markets. Natural soda ash began to appear in the
Community in the late 1970s, principally in the United
Kingdom.
into the
Community amounted to some 100 000 tonnes, almost
80 000 tonnes of
this in the United Kingdom. The
European industry successfully applied for anti-dumping
protection against United States dense soda ash imports
in 1982.
(Anti-dumping measures had also been in
force against east European imports of light, but not
dense, ash since October 1982.)

imports

(27)

The measures
in force in the late 1980s granting
anti-dumping protection against United States dense ash
involved:

(a)

for the two producers then in the market, Allied
(now General Chemical) and Texas Gulf, minimum
price undertakings of GBP 112,26/tonne ex-store
(Commission Regulation (EEC) No 2253/84) (4);

(b) for those producers not

in the market, Tenneco,
KMG, FMC and Stauffer, a definitive anti-dumping
duty of ECU 67,49/tonne (Council Regulation (EEC)
No 3337/84) (5).

The price undertakings as negotiated provided for
conversion into other currencies at the exchange rates
then prevailing, and with the changes in parities since
1984 the undertaking price for Germany, France and
other markets was substantially above the market price
so no sales were commercially feasible under
the
undertaking outside the United Kingdom.

Texas Gulf suffered a loss in volume following the
introduction of anti-dumping measures and withdrew
from the United Kingdom market in 1985 so that in
1990, of
the United States producers, only General
Chemical was still supplying in the United Kingdom,
although at a rate of only around 30 000 tonnes per
year.

thereby

affecting mainly

From 1987 onwards General Chemical also targeted
France,
and
Rhone-Poulenc, which shared that market. Texas Gulf
also sold some tonnage in Belgium. In both cases the
imports were made free of anti-dumping duties under
special rules relating to inward processing.

Solvay

(28)

(29)

(30)

(31) A number of large Community customers in the glass
sector had indicated their intention to take a substantial
part of
their business away from the Community
producers and to buy from the United States. Until
1990 however a total of only about 40 000 tonnes was
supplied in continental western Europe (as opposed to
the United Kingdom and Ireland) by the United States
producers, almost all of it under the inward processing
rules.

(32)

(33)

(34)

The anti-dumping measures provided for by Council
Regulation (EEC) No 3337/84 expired in November
1989. A review of the measures had been requested by
certain United States producers and by representatives
of the Community glassmaking industry in 1988. On 7
September 1990 the review was terminated without
protective measures
(Commission
being
Decision 90/507/EEC) (6)).

imposed

In 1982, some of the United States producers formed
an Export Association under the Webb-Pommerene Act
the United States
of 1918 with the approval of
Department of Commerce:
initially its activities were
restricted to Japan and only three producers took part.
In December 1983 all six natural ash producers joined
to form the American Natural Soda Ash Corporation
(Ansac).

The function of Ansac was to act as a joint sales agency
for the marketing and distribution of United States soda
ash exports outside America. Its sales were around USD
250 million annually. With the objective of extending
its activities to the west European market (to replace
sales by individual producers), Ansac notified its
arrangements to the Commission with a request
for
negative clearance or exemption under Article 81(3).

(35) Ansac’s application was

the subject of Commission
Decision 91/301/EEC (7) under which an exemption
was refused.

C. The infringement of Article 81 by Solvay and CFK

1. Introduction

(36)

CFK was a subsidiary of Kali & Salz AG (BASF Group)
and one of three producers of synthetic soda ash located
in Germany.
It had a production capacity of around
260 000 tonnes and its market share in Germany was
around 15 %.

(4) OJ L 206, 2.8.1984, p. 15.
(5) OJ L 311, 29.11.1984, p. 26.

(6) OJ L 283, 16.10.1990, p. 38.
(7) OJ L 152, 15.6.1991, p. 54.

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Solvay was by far the largest producer supplying the
German market and had a market share of over 50 %.
Throughout the period under consideration it conducted
its soda ash business in Germany through its subsidiary
Deutsche Solvay Werke (DSW). Until 1985 another
Solvay subsidiary, Kali Chemie (KC), was also active in
the soda ash sector but its operations were then fully
integrated in those of DSW.

(43) Originally, CFK’s guarantee was set at 179 000 tonnes, a
figure apparently based on CFK’s achieved sales in
Germany during 1986. At the time, the parties did not
foresee that
there would be any real growth in the
German soda ash market, which in 1986 and 1987 was
about 1 080 000 tonnes in total.

announced plans

In November 1989 Solvay
to
reorganise its activities in Germany by setting up a new
wholly-owned holding company Solvay Deutschland
GmbH controlling KC and holding 59,7 % of the shares
in Deutsche Solvay Werke. The arrangements do not
affect the responsibility of Solvay for the infringement.

(44)

tonnes

(183 000

For both 1987 and 1988, CFK’Ys achieved sales were
somewhat over its guaranteed minimum of 179 000
tonnes
tonnes
respectively). Indeed demand in Germany had started to
increase beyond earlier expectations and by the end of
1988 it had become apparent that the total sales for
that year would come to some 1 170 000 tonnes, an
increase of some 8,3 % over the previous year.

180 000

and

(37)

(38)

(39)

In 1985 DSW attempted to weaken the position of CFK
in the German market by taking the business of some of
producer
its major
but
compensated for
taking
customers from Matthes & Weber, the other German
producer.

the
the lost business by itself

customers,

smaller

share.

(40) During 1986 Solvay realised that CFK was applying a
policy of price cutting in order to retain or regain
In a telephone conversation between
market
DSW and Solva’Ys headquarters
in Brussels on 24
October 1986, the possibility of an (cid:145)armistice(cid:146) between
Solvay and CFK was discussed. According to DSW, an
(cid:145)armistice(cid:146) with CFK was impossible unless there was
talk of a price increase in 1987. The position of Solvay
Brussels was that CFK should be told that after a trial
period of the (cid:145)armistice(cid:146), perhaps in the second quarter
of 1987,
there might be discussions about a price
increase.

(41)

Both Solvay and CFK insisted that no (cid:145)armistice(cid:146) was
ever agreed (replies pursuant to Article 11). This denial
has however
the
documentary evidence referred to in the following
paragraphs.

judged in the

light of

to be

2. The (cid:145)guarantee(cid:146) agreement

(42) An assessment of

the soda ash market prepared by
DSW in March 1988 shows that the problems with CFK
had by that
time (cid:145)calmed down(cid:146). The documentary
evidence discovered by the Commission shows that an
agreement or arrangement had been made between
Solvay and CFK by which Solvay (cid:145)guaranteed(cid:146) CFK an
annual minimum sales tonnage on the German market.
If CFK’s sales in Germany fell below the guaranteed
minimum, Solvay would buy the shortfall from CFK.

of

claiming

CFK was
for

(45) As a result of the growth in demand, CFK demanded a
minimum guarantee for 1988 and 1989 of 194 000
thus
retrospective
tonnes.
(cid:145)compensation(cid:146)
tonnes
1988
(194 000(cid:151)180 000 tonnes), which after taking account
of the credit for 1987 left 11 000 tonnes. CFK’s internal
forecasts for 1989, as revised in January 1990, confirm
that it had altered its original planning so as to provide
for (cid:145)coproducer(cid:146) sales in 1989 of 11 000 tonnes. Solvay
had in fact purchased 2 500 tonnes at
the end of
December 1988,
leaving a balance of 8 500 tonnes
which CFK wanted it to buy during 1989.

14 000

(46)

In response to CFK’s claim, Solvay offered maximum
compensation for 1988 of 4 000 tonnes instead of the
8 500 tonnes. For 1989, it proposed that the guarantee
be increased by only 5,3 % instead of 8,3 % by taking
account of a (cid:145)neutral zone(cid:146) of 3 %. The guarantee for
1989 would thus be 190 000 tonnes instead of
the
194 000 tonnes which CFK had originally demanded.

that

the object was

(47) A meeting was held on 14 March 1989, attended by
senior representatives of CFK and its parent company
Kali & Salz on the one side and DSW on the other. It is
highly significant that no official record or minute was
made of this meeting and indeed no trace of it whatever
exists at either CFK or Kali & Salz. However a brief
handwritten note of this meeting was found at DSW. It
to resolve the one
is clear
outstanding point, namely whether the compensation
was to be made retrospective. There was no dispute
the Solvay note reads
about
(cid:145)Verstaendnis System:
system: OK(cid:146)).
Solvay, while proposing some changes, was satisfied
with the way the scheme was working ((cid:145)Schiff laufen
lassen und nach vorn orientieren.(cid:146)). It appears from the
note that both sides had agreed that for the next eight
months Solvay would purchase from CFK at the rate of
1 000 tonnes per month.

the basic machinery:

((cid:145)Agreement

i.o.(cid:146)

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The compensatory mechanism was put
into practice,
with Solvay buying in from CFK during the first half of
1989 the additional 8 500 tonnes which had been
claimed by CFK.

3. Arguments in defence

Both Solvay and CFK denied that
any collusive
agreement or arrangement was made between them.
The incriminating documentary evidence found at DSW
is explained by Solvay as referable to a scheme which
was conceived on a wholly unilateral basis when it was
considering acquiring CFK’s business in about 1988. In
order to maintain CFK as a going concern pending the
it calculated (again without
negotiations (says Solvay),
any
tonnage which that
the
contact with CFK)
undertaking would need to sell on the German market
in order to load its plant at a level that would guarantee
its survival. (It is not however explained by Solvay why
it should follow a policy that would lead it to pay a
higher price for CFK’s business than would otherwise be
the case, nor, if it were only a matter of ensuring an
optimal plant utilisation rate for CFK, why it should
need to refer specifically to its sales on the German
market.) This (cid:145)survival tonnage(cid:146) was assessed by Solvay
at 179 000 tonnes for 1986. The frequent references in
the documents to a (cid:145)claim(cid:146) or (cid:145)demand(cid:146) by CFK, and the
very detailed calculations on this question do not,
Solvay asserts, imply any contact with that undertaking
any more than do the references to an (cid:145)offer(cid:146) by Solvay
or to a (cid:145)compromise(cid:146). As for the meeting between DSW
and CFK and Kali & Salz on 14 March 1989 its purpose
was simply to discuss the possible acquisition by Solvay
of an interest in CFK’s soda activities: only during this
meeting did Solvay for the first time give an indication
to CFK that it was considering helping that company to
survive, but nothing concrete was agreed and nothing
ever resulted from the meeting.

it

for

documents concerned were transmitted by fax from
DSW to Solvay headquarters in Brussels, but no trace
exists of
the
their having been received. As
arguments of CFK,
is well settled that documents
found at one undertaking which incriminate another
may constitute evidence against it as well as against the
maker (judgment of the Court of Justice in Joined Cases
40 to 48, 50, 54 to 56, 111, 113 and 114/73 Suiker
Unie and others v Commission) (8). In any case, there
are several examples of detailed references in CFK’s own
documents that are echoed in the documents found at
Solvay, which information could not have been known
to Solvay unless it had been communicated to it. CFK
was unable
the
coincidence of references in its documents and those of
another producer.

explanation for

to provide

any

PART II

LEGAL ASSESSMENT

A. Article 81 of the Treaty

1. Article 81(1)

(53) Article 81(1) of the Treaty prohibits as incompatible
with the common market all agreements between
undertakings or concerted practices which may affect
trade between Member States and which have as their
object or effect the prevention, restriction or distortion
of competition within the common market.

(50)

Solvay did not consider it necessary to propose that the
persons involved be found in order to corroborate its
factual arguments, nor did it request a hearing.

(54) Article 81(1)

specifically includes

examples of
prohibited agreements those which directly or indirectly
fix selling prices,
limit or control markets, or share
markets between producers.

as

(51)

(52)

CFK for its part denied any involvement in collusion: it
could give no explanation for the documents discovered
at DSW, arguing that they were a matter for Solvay and
not itself: there was nothing in its own documentation
which could connect it with any collusive scheme.

The Commission rejects as entirely unbelievable the
explanations advanced by Solvay, which are in any case
in complete contradiction with the terms of its own
the
documents.

is also significant

some of

that

It

2. Agreements/concerted practices

(55) Article 81(1) prohibits both agreements and concerted
practices. In the present case, although nothing turns on
the distinction between the two forms of prohibited
collusion,
the
arrangement between Solvay and CFK indisputably
constitutes an (cid:145)agreement(cid:146) within the meaning of Article
81(1).

Commission

considers

that

the

(8) [1975] ECR 1663, paragraph 164.

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(56) An (cid:145)agreement(cid:146) may exist when the parties have reached
consensus on a plan which limits or is likely to limit
their commercial freedom by determining the lines of
their mutual action or abstention from action in the
market.
the parties should
consider it legally binding, and indeed where they are
well aware of the illegality of their arrangement they
clearly cannot intend it to have contractual force. No
enforcement procedures are required; nor is it necessary
for such an agreement to be made in writing.

is not necessary that

It

3. Restriction of competition

B. Article 15(2) of Regulation No 17

(61) Under Article 15(2) of Regulation No 17,

the
Commission may by decision impose on undertakings
fines of from EUR 1 000 to EUR 1 million, or a sum in
excess thereof but not exceeding 10 % of the turnover
in the preceding business
the
undertakings participating in the infringement where,
either intentionally or negligently, they infringe Article
81(1) or Article 82. In fixing the amount of the fine,
regard shall be had both to the gravity and to the
duration of the infringement.

each of

year of

(57)

In the present case it is self-evident that the agreement
had the object and effect of restricting competition.

1. Gravity

(58)

(59)

The purpose was clearly to achieve conditions of
artificial market stability. In exchange for returning to
pricing behaviour which was not considered by Solvay
as disruptive, CFK was guaranteed a minimum share of
the German market. By removing from the market the
tonnage which CFK could not sell, Solvay ensured that
price levels were not brought down by competition. It is
the
from the
clear
arrangements were put
into practice and had the
intended effect. Such classic cartel-type arrangements by
their very nature
competition within the
meaning of Article 81(1).

documentary

evidence

restrict

that

4. Effect on trade between Member States

It

is clear

The fact that the minimum guaranteed tonnage related
only to sales on the German market in no way excludes
from the
the application of Article 81.
involvement of Solvay in Brussels that the arrangement
was part of its overall policy for controlling the soda
Solvay/CFK
in the Community. The
ash market
reduce
to
only
arrangement was
competition in a major part of the Community but also
to maintain the rigidity of the existing market structure
and its separation along national
lines. It is also quite
possible that the tonnage taken by Solvay under the
guarantee would otherwise have been placed by CFK in
other Community markets.

intended

not

5. Conclusion

(60)

The Commission therefore considers that Solvay and
CFK infringed Article 81 of the Treaty by participating
from about 1986 until
the end of 1990 in an
agreement by which Solvay guaranteed to CFK a certain
minimum annual tonnage in Germany and purchased
from it the quantities required to reach that minimum.

(62)

(63)

(64)

a

In the present case the Commission considers that the
one. Market-sharing
serious
infringement was
agreements
considerable
are by their very nature
restrictions on competition.
In the present case the
parties restricted competition between them by means
of a device intended to create artificial conditions of
ambitions were
market
accommodated without the tonnage in question having
to be placed on the consumer market at competitive
prices. The arrangements were also conducted in
conditions of strict secrecy.

stability. CFK’s

volume

2. Duration

It is not possible, given the refusal of the undertakings
to provide any information, to determine exactly when
the guarantee agreement was made. The arrangements
were first applied to CFK’s sales for the year 1987. It is
therefore appropriate to assess fines on the basis that
the agreement was concluded at some time during that
year.

In determining the amount of the fine to be imposed on
the Commission has borne in mind
each producer,
Solvay’s dominant market position as
leading
producer in Germany and in the Community. Solvay
considered that as such it had a particular responsibility
for ensuring the (cid:145)stability(cid:146) of the market. CFK was a
relatively small producer of soda ash but it was a willing
partner in the collusive venture.

the

(65)

The infringement was deliberate and both parties must
have been well aware of the obvious incompatibility of
their arrangements with Community law.

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EN

Official Journal of the European Communities

15.1.2003

of

by

fines

substantial

Solvay has been the
subject on several previous
the
occasions
imposed
Commission for collusion in the chemicals industry:
Decision 85/74/EEC Peroxides (9), Decision 86/398/EEC
Polypropylene (10), Decision 89/190/EEC PVC (11).
Its
activities in soda ash were the subject of scrutiny by the
Commission between 1980 and 1982. Although at that
time the Commission was more particularly concerned
with Solvay’s
arrangements with
customers, those responsible for the soda ash activities
could not have been ignorant of the need to comply
with Community law.

exclusive

supply

contested Decision had not been authenticated before it
the
was notified, annulled it on the grounds
Commission had infringed an essential procedural
requirement within the meaning of Article 173 of the
EEC Treaty (now Article 230 of the EC Treaty).

that

(69)

that
against
The Commission brought
Justice. The Court
judgment before the Court of
dismissed the appeal in its judgment of 6 April 2000 in
Joined Cases C-287/95 P and C-288/95 P (15).

an appeal

C. Proceedings before the Court of First Instance and the
Court of Justice

(70)

(67) On 19 December 1990 the Commission,

to Article 85 of

acting
pursuant
the EEC Treaty, adopted
Decision 91/298/EEC finding that Solvay and CFK had
committed an infringement and imposing fines of ECU
3 million on Solvay and ECU 1 million on CFK. The
Decision was notified to the undertakings by registered
letter on 1 March 1991. Solvay brought an action for
annulment of the Decision before the Court of First
Instance on 2 May 1991. CFK did not bring any action
against the Decision (which remains valid in so far as it
relates to that undertaking) and paid the fine of ECU 1
million. On 10 April 1992 Solvay submitted a
(cid:145)supplementary application(cid:146), in which it put forward a
new plea to the effect
the contested Decision
that
should be declared non-existent following the judgment
delivered by the Court of First Instance on 27 February
1992 in Joined Cases T-79/89, 84/89, 85/89, 86/89,
89/89, 91/89, 92/89, 94/89, 96/89, 98/89, 102/89 and
104/89 BASF and others v Commission (12). The Court
of
appeal brought by the
Commission against that judgment in Case C-137/92 P
Commission v BASF and others (13) and annulled the
Decision at
(Decision
89/190/EEC) on the grounds that the Commission had
failed to comply with Article 12 of
its Rules of
in the version in force at the time, which
Procedure,
required decisions to be authenticated in the language
or
in which they are binding by the
signatures of the President and the Secretary-General.

in those proceedings

ruled on the

languages

Justice

issue

(71)

(72)

The Court of First
Instance took the view in its
judgment of 20 April 1999 in Joined Cases T-305/94,
T-306/94, T-307/94, T-313/94 to T-316/94, T-318/94,
T-325/94, T-328/94, T-329/94 and T-335/94 LVM and
others v Commission (16) (PVC II) that the Commission
is entitled to adopt again a decision that has been
annulled on account of purely procedural defects; a new
decision may in such cases be adopted without initiating
fresh administrative proceedings; the Commission is not
required to organise a further hearing if the text of the
new decision does not contain objections other than
those set out in the first decision; and the rights of the
defence of the undertakings concerned are not infringed
if the new decision is taken within a reasonable time.

of

also

First

Instance

the
The Court
Commission’s interpretation of Council Regulation (EEC)
No 2988/74 of 26 November 1974 concerning
limitation periods in proceedings and the enforcement
of sanctions under the rules of the European Economic
Community relating to transport and competition (17).

upheld

In accordance with Regulation (EEC) No 2988/74, the
Commission’s power to impose fines or penalties for
infringement of the competition rules is subject to a
limitation period of five years. In the case of continuing
or repeated infringements, time begins to run on the
day on which the infringement ceases (i.e. the end of
1990 in the present case).

(68)

In its judgment of 29 June 1995 in Case T-31/91
Solvay v Commission (14) (Solvay I) concerning Decision
91/298/EEC, adopted by the Commission in the present
proceedings on 19 December 1990, the Court of First
Instance ruled that the new plea submitted by Solvay
the
was admissible and,

finding that

the text of

(9) OJ L 35, 7.2.1985, p. 1.
(10) OJ L 230, 18.8.1986, p. 1.
(11) OJ L 74, 17.3.1989, p. 1.
(12) [1992] ECR II-315.
(13) [1994] ECR I-2555.
(14) [1995] ECR II-1821.

(73) Under Article 2 of Regulation (EEC) No 2988/74, any
action taken by the Commission to investigate or
initiate proceedings against an infringement interrupts
time
the limitation period. Each interruption starts
running afresh, but the limitation period expires at the
latest on the day on which a period equal to twice the
limitation period has elapsed without the Commission
having imposed a fine or a penalty, in other words 10
years from the date on which the infringement ceases.

(15) [2000] ECR I-2391.
(16) [1999] ECR II-931.
(17) OJ L 319, 29.11.1974, p. 1.

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Official Journal of the European Communities

L 10/9

the limitation period,

(74) Article 2(1) of Regulation (EEC) No 2988/74 lists
certain Commission actions which interrupt the running
of
including the statement of
objections. The list is not exhaustive. The Court of First
Instance left open the question whether adoption of the
annulled Decision itself constituted an action that
interrupted the running of the limitation period. Even
supposing that
the infringement ceased on 19
December 1990 and (ii) adoption (and notification) of
the annulled Decision did not interrupt the running of
the limitation period, the Commission would have had
at least until the end of 1995 in order to adopt its
decision.

(i)

HAS ADOPTED THIS DECISION:

Article 1

the EEC Treaty (now Article 81 of

Solvay et Cie SA, now Solvay SA (Solvay), infringed Article 85
the EC Treaty) by
of
participating from about 1987 until at least the end of 1990
in a market-sharing agreement by which Solvay guaranteed to
CFK a minimum annual sales tonnage of soda ash in Germany
calculated by reference to CFK’s achieved sales in 1986, and
compensated CFK for any shortfall by purchasing from it the
tonnages
to the guaranteed
minimum.

required to bring its

sales

(75)

The limitation period must be extended by the time
during which the action for annulment of the Decision
was pending before the Court of First Instance. Under
Article 3 of Regulation (EEC) No 2988/74,
the
limitation period in proceedings is to be suspended for
as long as the Commission decision is the subject of
proceedings pending before the Court of Justice (which,
in this context,
is to be understood as including the
Court of First Instance).

(76) As the Court of First Instance stated in paragraph 1098
of its judgment in PVC II, the specific purpose of Article
3 is to enable the limitation period to be suspended
where a decision finding an infringement and imposing
a fine is annulled. The limitation period was therefore
suspended for as long as Decision 91/298/EEC was the
subject of proceedings pending before the Court of First
Instance and the Court of Justice.

(77)

In the case in point, Solvay’s action for annulment was
brought before the Court of First Instance on 2 May
1991 and the latter delivered its judgment on 29 June
1995. The Commission’s appeal to the Court of Justice
was brought by an application introduced on 30 August
1995 and the judgment
in those proceedings was
handed down on 6 April 2000. Even disregarding the
time that elapsed between delivery of the judgment of
the Court of First
the
appeal to the Court of Justice, the limitation period was
suspended for at least eight years, nine months and four
days.

Instance and introduction of

(78)

If
that suspension is added to the limitation period
expiring on 19 December 1995, the Commission has
until September 2004 in order to adopt again the
annulled Decision,

Article 2

A fine of EUR 3 million is imposed on Solvay in respect of the
infringement specified in Article 1.

The fine shall be paid within three months of the date of
notification of this Decision to the following account:

Account No 642(cid:150)0029000(cid:150)95
European Commission
Banco Bilbao Vizcaya Argentaria (BBVA)
SWIFT code: BBVABEBB (cid:151)
IBAN code: BE76 6420 0290 0095
Avenue des Arts/Kunstlaan, 43
B-1040 Brussels.

After expiry of that period, interest shall become automatically
payable at the rate applied by the European Central Bank to its
main refinancing operations on the first working day of the
month in which this Decision was adopted plus 3,5 percentage
points, namely 8,32 %.

Article 3

This Decision is addressed to Solvay SA, rue du Prince Albert
33, B-1050 Brussels.

This Decision is enforceable pursuant to Article 256 of the
Treaty.

Done at Brussels, 13 December 2000.

For the Commission

Mario MONTI

Member of the Commission