2003/2/EC: Commission Decision of 21 November 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/37.512 — Vitamins) (notified under document number C(2001) 3695) (Text with EEA relevance)
Date: 2001-11-21
Institutions: European Commission
Subjects: cartel, competition law, fine, inter-company agreement, offence, pharmaceutical industry, vitamin

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(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 21 November 2001

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

(Case COMP/E-1/37.512 (cid:151) Vitamins)

(notified under document number C(2001) 3695)

(Only the English, French, German and Dutch texts are authentic)

(Text with EEA relevance)

(2003/2/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

1. FACTS

Having regard to the Treaty establishing the European
Community,

1.1. SUMMARY OF THE INFRINGEMENT

Having regard to the Agreement on the European Economic
Area,

(1)

This Decision imposing fines
infringements of
Article 81(1) of the Treaty and Article 53 of the EEA
Agreement is addressed to the following undertakings:

for

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 Article 3 and Article 15(2)
thereof,

by Regulation

amended

last

as

Having regard to the Commission decision of 6 July 2000 to
initiate a proceeding in this case,

Having given the undertakings concerned the opportunity to
make known their views on the objections raised by the
Commission pursuant to Article 19(1) of Regulation No 17
and Commission Regulation (EC) No 2842/98 of 22 December
1998 on the hearing of parties in certain proceedings under
Articles 85 and 86 of the EC Treaty (3),

(cid:151) F. Hoffmann-La Roche AG (hereafter (cid:145)Roche(cid:146)),

(cid:151) BASF AG (hereafter (cid:145)BASF(cid:146)),

(cid:151) Aventis SA (formerly Rh(cid:244)ne-Poulenc)

(hereafter

(cid:145)Aventis(cid:146)),

(cid:151) Lonza AG (hereafter (cid:145)Lonza(cid:146)),

(cid:151) Solvay Pharmaceuticals BV (hereafter (cid:145)Solvay(cid:146)),

(cid:151) Merck KgaA (hereafter (cid:145)Merck(cid:146)),

(cid:151) Daiichi Pharmaceutical Co. Ltd (hereafter (cid:145)Daiichi(cid:146)),

Having regard to the final report of the Hearing Officer in this
case,

(cid:151) Eisai Co. Ltd (hereafter (cid:145)Eisai(cid:146)),

Having consulted the Advisory Committee on Restrictive
Practices and Dominant Positions,

(cid:151) Kongo Chemical Co. Ltd (hereafter (cid:145)Kongo(cid:146)),

(cid:151) Sumitomo Chemical Co. Ltd (hereafter (cid:145)Sumitomo(cid:146)),

Whereas:

(cid:151) Sumika Fine Chemicals Ltd (hereafter (cid:145)Sumika(cid:146)),

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(cid:151) Takeda Chemical Industries Ltd (hereafter (cid:145)Takeda(cid:146)),

(cid:151) Tanabe Seiyaku Co. Ltd (hereafter (cid:145)Tanabe(cid:146)).

(2)

For the periods and for the different vitamin products
specified in this decision, the manufacturers of vitamins
A, E, B1, B2, B5, B6, C, D3, H, folic acid, beta-carotene
and carotinoids supplying the Community and the EEA
entered into and participated in a series of continuing

(a) Participants, product, duration

Vitamin

Participants

agreements contrary to Articles 81(1) of the Treaty and
Article 53 EEA by which they fixed prices for the
different products, allocated sales quotas, agreed on and
implemented
price
announcements in accordance with their agreements,
set up a
sold the products at
machinery to monitor and enforce adherence to their
agreements, and participated in a structure of regular
meetings to implement their plans.

the agreed prices,

increases,

issued

price

Duration (a)

from

to

Vitamin A

Vitamin E

Vitamin B1
(thiamine)

Vitamin B2
(riboflavin)

Roche, BASF, Rh(cid:244)ne-Poulenc (Aventis)

September 1989

February 1999

Roche, BASF, Rh(cid:244)ne-Poulenc (Aventis), Eisai

September 1989

February 1999

Roche, Takeda, BASF

January 1991

June 1994

Roche, BASF, Takeda

January 1991

September 1995

Vitamin B5 (calpan)

Roche, BASF, Daiichi

January 1991

February 1999

Vitamin B6

Roche, Takeda, Daiichi

January 1991

June 1994

Folic acid (B)

Roche, Takeda, Kongo, Sumika

January 1991

June 1994

Vitamin C

Roche, BASF, Takeda, Merck

January 1991

August 1995

Vitamin D3

Roche, BASF, Solvay Pharm, Rh(cid:244)ne-Poulenc
(Aventis)

January 1994

June 1998

Vitamin H (biotin)

Roche, Merck, Lonza, Sumitomo, Tanabe, BASF

October 1991

April 1994

Beta-carotene

Roche, BASF

September 1992

December 1998

Carotinoids

Roche, BASF

May 1993

December 1998

(a) The duration is not necessarily the same for all participants.

(b) Participants by product

Vitamin
A

Vitamin
E

Vitamin
B1

Vitamin
B2

Vitamin
B5

Vitamin
B6

Folic
acid

Vitamin
C

Vitamin
D3

Vitamin
H

Beta-
caro-
tene

Caroti-
noids

(1)

(2)

(3)

(4)

(5)

Roche

BASF

Rh(cid:244)ne-Poulenc
(Aventis)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(6)

(cid:149)

(7)

(cid:149)

Lonza

Solvay

Merck

(8)

(9)

(10)

(11)

(12)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

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Vitamin
A

Vitamin
E

Vitamin
B1

Vitamin
B2

Vitamin
B5

Vitamin
B6

Folic
acid

Vitamin
C

Vitamin
D3

Vitamin
H

Beta-
caro-
tene

Caroti-
noids

(1)

(2)

(3)

(4)

(5)

(cid:149)

(6)

(cid:149)

(cid:149)

(7)

(8)

(9)

(10)

(11)

(12)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

(cid:149)

Daiichi

Eisai

Kongo

Sumika

Sumitomo

Takeda

Tanabe

1.2. THE INDUSTRY

1.2.1. VITAMINS

(3)

Vitamins are a group of micronutrients of various types
of organic compounds required in small amounts in
human and animal diet for normal growth, development
and maintenance of life. Their physiological function in
the organism and mode of action are diverse. Some
vitamins are essential sources of certain coenzymes
necessary for metabolism; others are involved in the
metabolism of other vitamins. All known vitamins can
be synthesised chemically.

(4) With very few exceptions, the living organism cannot
itself synthesise vitamins. They have to be supplied in
the diet or in dietary supplements. There are some
15 major vitamins.

(5)

(6)

Vitamins are often grouped according to their solubility
properties: of the products relevant for this case vitamin
C and the B complex vitamins are water
soluble;
vitamins A, E and D are fat soluble.

Compound animal feeds contain the vitamins required
for the health and growth of particular species. Vitamins
are added to human food products to replace losses in
processing, to fortify the product, and also to act as
antioxidants or colourants. Vitamins for pharmaceutical
purposes are marketed to the public as diet supplements
in tablet or capsule form.
In the cosmetics industry,
vitamins are added to skin and healthcare products.

(8)

(9)

The products with which this decision is concerned are
those bulk synthetic substances which belong to the
following groups of vitamins
and closely related
products: A, E, B1, B2, B5, B6, C, D3, biotin (H), folic
acid (M), beta-carotene and carotinoids.

includes

Each group of vitamins
those interrelated
substances which have the same properties in their own
field. Each has specific metabolic functions
biological
and is therefore not
interchangeable with the other
groups. In addition, the various group of vitamins when
combined have a complementary synergistic effect.

1.2.2. THE VITAMIN MARKETS AND PRODUCTS (cid:151)
OVERVIEW

(10)

The three largest producers of vitamins in the world are
Roche, BASF and Aventis, formerly Rh(cid:244)ne-Poulenc (4)
with overall market shares of approximately [40 to
50] %, [20 to 30] % and [5 to 15] % respectively.

(11)

Roche and BASF each produce a wide range of vitamins
for both animal nutrition and for human usage,
pharmaceutical and food.

(12)

The vitamin activity of Aventis is confined to the animal
feed sector for which it produces vitamins A and E and
buys in for resale certain other vitamins from other
producers.

(13)

total world bulk vitamins market

The
estimated at some EUR 3,25 billion.

(1999)

is

(7)

Bulk vitamins are sold in different forms according to
the product and the application: crystalline, in oil, with
a protective coating or in a powder matrix.

(14)

In volume terms, worldwide production of vitamins for
animal feed, excluding choline chloride (cid:151) vitamin B4,

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the subject of

not
is around
60 000 tonnes per year; pharmaceutical/food tonnage
totals around 65 000 tonnes.

the present procedure,

(15)

The EEA market for the products which are the subject
of the present Decision was worth around ECU 800
million, at ex-producer prices, in 1998.

(16)

(17)

(18)

Vitamins A and E together comprise half
the total
market for vitamins. In 1998, the last full year of the
cartel for these products, the vitamin E market in the
Community was worth ECU 250 million; vitamin A
sales aggregated some ECU 150 million.

Sales of bulk vitamin C, which in 1995 had accounted
for ECU 250 million in the Community, came to ECU
120 million, the price having more than halved since
the ending of cartel arrangements at the end of 1995.

value

The
Community/EEA from 1994 to 1998 was as follows:

vitamins market (5)

the

of

in

the

(20)

Besides selling individual feed grade vitamins in bulk,
much of this to (cid:145)pre-mixers(cid:146) which combine vitamins
with other nutrients to form a package in powder or
liquid form for use in the production of animal feed, the
and BASF are both
two major producers Roche
their own operations
forward-integrated and have
does Rh(cid:244)ne-Poulenc. A
producing pre-mixes,
as
(cid:145)feed grade(cid:146) vitamin
substantial proportion of
their
production is not sold on the (cid:145)free(cid:146) market but
is
employed internally
their
(cid:145)pre-mixes(cid:146). These are blends containing other nutrients
and medication besides vitamin concentrates which are
added in small amounts to the main feed mixture. The
remainder is sold to wholesalers, pre-mixers or directly
to animal feed compounders.

in the manufacture of

(21)

sell
in (cid:145)straight(cid:146)

the food/pharmaceutical
The vitamin producers
form to intermediate
grade product
customers, such as other vitamin producers, vitamin
formulators who buy in concentrated form and to
distributors and resellers. Vitamin producers which do
not themselves produce particular vitamins may buy in
their requirements from other vitamin producers.

Product

1994

1995

1996

1997

1998

(in ECU million)

1.2.2.1. The individual vitamin product markets

Vitamin A

Vitamin E

Vitamin B1

Vitamin B2

Vitamin B5

Vitamin B6

Folic acid

135

190

18

41

31

15

10

Vitamin C

225

Vitamin D3

Vitamin H

Beta-carotene

Canthaxan-
thin

16

35

55

49

140

210

15

44

32

11

N/A

250

19

36

60

52

145

220

12

38

32

10

N/A

165

20

31

66

50

145

230

14

33

32

10

N/A

115

17

25

70

52

150

250

15

34

35

11

N/A

120

20

23

76

50

Total

820

869

789

743

784

Source: Roche market share statistics.

(22)

(23)

Vitamins A and E

Vitamin A is a fat-soluble chemical substance with a
variety of applications primarily in the feed industry.
Smaller quantities of vitamin A are also sold to the food
and pharmaceutical
industries. Sales to the cosmetics
industry are minimal. Vitamin A is necessary to ensure
normal growth as well as healthy skin, eyes, teeth, gums
and hair.

is necessary

Vitamin E is also a fat-soluble chemical substance with a
variety of applications in animal and human nutrition as
well as in the pharmaceutical and cosmetics industry.
Vitamin E
formation and
functioning of red blood corpuscles, muscles and other
tissue. Vitamin E can either be derived from natural
sources or be generated as a synthetic product. There is
only a very limited competitive overlap between
synthetic and natural vitamin E which only occurs in
human applications.

the

for

Table I
in the Annex gives the breakdown for each
vitamin product by Member State over the same period.

(19)

Some 70 % of production of vitamins A and E is animal
feed grade and 30 % for food pharmaceutical grade; in
vitamin C, 80 % is intended for human consumption.

(24)

synthetic vitamin E supplies

is
The majority of
purchased by the feed industry,
the remainder being
consumed by the pharmaceutical and food industry as
well as the cosmetics industry which has, however, only
emerged as a sizeable purchaser of the product since
1996.

(25)

(26)

(27)

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Vitamins A and E together account for some 60 % of
the worldwide demand for animal feed vitamins. Both
vitamins are largely bought by the same customers,
feed industry. The world
especially in the animal
demand for vitamin E is
around 22 000 tonnes
annually, for vitamin A, around 15 000 tonnes.

(31)

Vitamin B1 prices (feed grade) in Europe were in the
rising by 1993 to ECU
region of ECU 32,50/kg,
38,00/kg before falling sharply in 1994 and reaching a
low in 1996 of ECU 16/kg (see Table IV). The European
market in vitamin B1 in 1994 was worth some ECU 18
million (1998: ECU 15 million).

Roche was the first producer to synthesise vitamins A
and E, holding a monopoly on both vitamins until the
late 1960s,
at which time Rh(cid:244)ne-Poulenc began
marketing vitamin A for animal feed. BASF entered the
and shortly
market
to
afterwards Rh(cid:244)ne-Poulenc extended its activities
vitamin E, for animal feed only. The Japanese producer
Eisai also began marketing vitamin E in Europe for
human and animal usage in 1967; it does not produce
vitamin A.

for both products

in 1970,

Roche and BASF thus supply vitamin A and E for use in
animal feed and human food, Rh(cid:244)ne-Poulenc supplies
both vitamins, for animal feed only and Eisai supplies
vitamin E for both animal and human use. The only
significant other producer of vitamin A is the Russian
company Bel Vitamini with about 7 to 9 % of the total
small Chinese
market volume. As
producers have slowly increased their aggregate share
from less than 1 % in 1989 to 7 % by the end of the
1990s.

for vitamin E,

(28)

The bulk vitamin A market in the EEA in 1998 was
worth around ECU 150 million; the vitamin E market,
ECU 250 million. The average price of vitamin A in the
EEA rose from around ECU 38,80/kg in 1990 to ECU
54,50 in 1998 (see Table II in the Annex). Vitamin E
prices in the EEA increased from ECU 18,60/kg in 1990
to ECU 31,10 by 1998 (see Table III).

Vitamin B1

(29)

through

Vitamin B1 (thiamin) is essential for the metabolism of
carbohydrates
functions.
its
Deficiency causes reduction of growth and nervous
disorders. It is a water-soluble vitamin used for animal
and human nutrition and in the pharmaceutical
industry. Chemical
is a complex process
involving some 15 to 17 different steps.

coenzyme

synthesis

(30)

The main producers are Roche, Takeda and several
Chinese manufacturers. BASF ceased its own production
of vitamin B1 in 1989 and concluded a five-year supply
agreement to obtain its requirements from Roche.

(32)

(33)

(34)

(35)

(36)

(37)

Vitamin B2

reactions

Vitamin B2 is found in all living cells and is involved in
in cellular
operating
numerous
metabolism. Riboflavin coenzymes are essential for the
conversion of vitamins B6 and folic acid into valid
active form.

energy

Vitamin B2 is mainly used in the animal feed industry.
Only 30 % of production is
employed in food
manufacturing and pharmaceuticals.

The principal manufacturers of vitamin B2 are Roche
and BASF, with world market shares of 55 % and 30 %
is
respectively in 1990. The third largest
Takeda with 11 % in 1990. There are other producers
in Russia, China and the United States of America. So
far, only Roche and Takeda produce synthetic vitamin
B2; the others employ a fermentation process.

supplier

The European price of riboflavin in 1991 was about
ECU 43/kg, rising to about ECU 56 in 1994, after
which it fell to the present level of EUR 40 (see Table V
in the Annex). The European market for vitamin B2 in
1995 was worth some ECU 44 million (1998: ECU 34
million).

Vitamin B5

Vitamin B5 (pantothenic acid, also referred to as calpan)
plays a key role in the metabolism of carbohydrates,
proteins and fats, and is therefore important for the
maintenance and repair of all cells and tissues. Dietary
deficiency of calpan in human beings results in a wide
variety of clinical symptoms. In animals, a deficiency of
vitamin B5 is manifested in retarded growth, impaired
fertility, neuromuscular and dermatological disorders
and sudden death.

Calpan is produced in two main forms: a pure form
known as d-calpan, used both for human consumption
and as an ingredient in animal feed and a mixed form,
dl-calpan, consisting as to 45 % of d-calpan and as to
55 % of an inert filler, which is used for animal feed
only. Reflecting its chemical composition, the price of
d-calpan is double that of dl-calpan.

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among

Vitamin B5 is another vitamin for which Roche and
leading producers
BASF were
worldwide; the other main manufacturer of this product
is Daiichi of Japan. There are also minor producers in
Japan, China, Poland and Romania.

three

the

(47)

The price for vitamin B6 in Europe in 1990 was around
ECU 25/kg, rising by early 1993 to ECU 46,50/kg. It is
now in the region of EUR 20/kg (see Table VII in the
Annex). In 1994 the Community market for vitamin B6
was valued at some ECU 15 million.
is currently
worth about EUR 11 million.

It

(39)

Roche and BASF between them have about two thirds
of the market in Europe and worldwide.

Folic acid

(40)

(41)

Roche, BASF and Daiichi produce only d-calpan, the
majority of which is
feed
industry. Alps (Japan) and companies in Romania and
Poland produce dl-calpan.

supplied to the animal

(48)

In the animal-feed sector, which accounts for the vast
majority of production, d-calpan and dl-calpan are sold
to pre-mixers who mix calpan with other vitamins and
sell
the pre-mix package to manufacturers of animal
feed.

Folic acid forms part of the B complex of vitamins. The
name is applied to a whole group of compounds also
known as folates or folacin. It plays an important role
in the metabolism of DNA and RNA, the carriers of
living organisms. Folic acid
genetic information in all
reduces the risk of neural
tube birth deformities in
humans if consumed in adequate quantities by the
expectant mother during pregnancy.
In humans folic
acid deficiency can also result in anaemia. Folic acid
deficiency in animals causes anaemia and,
in poultry,
reduced laying performance and poor feathering.

are

however

(42) Daiichi does not produce pre-mixes. Both Roche and
BASF
downstream into
pre-mixes; each owns and operates some seven pre-mix
plants in Europe. They supply d-calpan both to their
own pre-mixing operations (captive use) and to other
pre-mixers.

integrated

(43)

The price of d-calpan in Europe in 1990 was around
ECU 12/kg. It currently sells at around EUR 20/kg (see
Table VI in the Annex). The European market for calpan
in 1998 was worth some ECU 35 million.

Vitamin B6

(49)

The producers of folic acid are Roche in Europe and
Takeda, Sumika, a subsidiary of Sumitomo, and Kongo
in Japan. Roche produces
for
incorporation in its pre-mixes. The Japanese folic acid
producers do not produce pre-mix, with the exception
of a Takeda subsidiary which supplies the product
locally in Japan.

acid mainly

folic

the world supply of

(50) Until 1989, the three Japanese producers manufactured
then
nearly all
Roche did not produce folic acid, but obtained its
requirements
1988/89 Roche
terminated the supply agreement and started its own
production.

folic acid. Until

from Takeda.

In

(44)

(45)

(46)

Vitamin B6 (pyridoxine) serves as a coenzyme for many
enzymes involved in the metabolism of amino acids. It
plays a significant role in the metabolism of proteins,
carbohydrates and fats. Adult ruminants are usually
self-sufficient in vitamin B6, but young animals require
supplements while growing. Vitamin B6 has a variety of
uses
in animal and human nutrition and in the
pharmaceuticals industry.

(51)

In 1991 folic acid demand worldwide was around 300
tonnes, worth some USD 30 million (ECU 25 million).
The European market was worth around ECU 9 million
to ECU 10 million. The price of folic acid (per kg) in
Europe in 1991 was DEM 160 (approximately ECU 80).
It is now about DEM 100 (approximately EUR 51,13).

The main producers of vitamin B6 are Roche, Takeda,
Daiichi and several Chinese producers. BASF and Merck
ceased production in 1991/92 and now obtain their
requirements from Roche.

Vitamin C

(52)

In 1989, Roche had a world market share in Vitamin
B6 of about 40 %; Daiichi had 12 % and Takeda 11 %.
The Chinese producers had only 3 % of
the world
market in 1989, rising to 16 % in 1997 with, according
to Roche, an exceptional interim (cid:145)high(cid:146) of about 48 % in
1993.

industries.

Vitamin C (ascorbic acid)
is a water-soluble vitamin
which is used mainly in the human nutrition and
the
for
pharmaceutical
production in the living organism of collagen,
the
intercellular substance which gives structure to muscles,
bone, vascular tissue and cartilage. Deficiency causes
scurvy weakening of
the tissues and intercapillary
bleeding.

required

is

It

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(53)

(54)

(55)

(56)

(57)

Vitamin C, together with vitamin E and beta-carotene, is
believed to act as an antioxidant with a preventive effect
on degenerative cardiovascular diseases and cancer,
it
prevents the conversion of nitrates into carcinogenic
substances. Humans are dependent upon vitamin C
supply in the diet. Most food producing animals but not
fish can synthesise vitamin C themselves, but may
require a supplement to natural production. Vitamin C
is also used as an antioxidant to protect the colour or
aroma of foodstuffs.

Roche had a monopoly in the production of vitamin C
until the 1970s, when Takeda (Japan), Merck (Germany)
and BASF entered the market. In 1990 Roche had 40 %
of the world market, Takeda 23 % and Merck and BASF
some 14 % between them. In Europe, the shares were
Roche 36 %, Takeda 11,5 % and BASF/Merck 24 %.

The price of vitamin C in Europe in 1990 was ECU
11,50/kg. After reaching an interim high in 1993/94 of
around ECU 15/kg, prices currently stand at EUR
7,50/kg (see Table VIII). The value of the vitamin C
market worldwide in 1990 was ECU 650 million, the
European market was around ECU 210 million. In the
last year of the cartel (1995) the European market was
worth some ECU 250 million (current annual value:
EUR 120 million).

Vitamin D3

Vitamin D3, a fat-soluble vitamin like vitamins A and E,
is sold either in straight form or more often in a blend
with vitamin A known as (cid:145)AD3(cid:146). Only about 10 % of
the vitamin D3 market (by value) is accounted for by
human food applications: the vast bulk of production is
used in animal feed.

their

intestine,

Vitamin D3 is required for healthy bone growth: it is
necessary for the absorption of calcium and phosphorus
from the small
reabsorption in the
kidneys and the mineralisation of bones. It also plays a
role in the proper functioning of muscles, nerves, blood
clotting and cell growth. Deficiency leads to rickets in
children and osteomalacia in adults; in animals, it leads
in poultry,
to reduced growth and leg disorders and,
thin egg shells.

(59)

(60)

(61)

(62)

(63)

production of vitamin D3 was supplied in concentrated
in an
form to Rh(cid:244)ne-Poulenc which incorporated it
AD3 combination product or blend marketed under its
own name.

all

are

and Rh(cid:244)ne-Poulenc

Roche, BASF
forward
integrated in the market and have their own vitamin
pre-mix operations which consume vitamin D3. Solvay
it supplies the
does not produce blends or pre-mixes:
straight product
like
Rh(cid:244)ne-Poulenc, vitamin formulators which buy in
concentrated form, distributors and resellers and to
pre-mixers and feed producers.

to other vitamin producers

Vitamin D3 is marketed at different prices in several
different product forms. The producers use the D3 500
(feed grade) form as the market grade. The price for
feed grade vitamin D3 in Europe in 1993 was subject to
considerable variations between the different countries.
The European market
for vitamin D3 in 1998 was
worth some ECU 20 million.

Vitamin H

Vitamin H (biotin), a water-soluble vitamin, assists in
the utilisation of protein, folic acid and vitamin B12
(the latter is not the subject of the present procedure).
Biotin is produced through chemical synthesis involving
some 20 different processes Tanabe is developing a
fermentation process but it is not yet in commercial
use. It is sold in pure and diluted form.

The animal
feed sector accounts for some 90 % of
Vitamin H production, the remainder being employed in
the pharmaceutical industry. Feed grade biotin is sold in
a 1 % diluted form in the United States of America; in
Europe and elsewhere a 2 % solution is used for feed
grade. Pharmaceutical grade is marketed in pure form.

The main producers of Vitamin H are Roche,
Sumitomo, Tanabe, Lonza and Merck. Lonza ceased
production in 1996. The largest producer of biotin is
Roche which currently has some [45 to 55] % of the
world market, followed by Sumitomo and Tanabe, each
with [15 to 25] %. Merck has some [5 to 15] % of the
world market. Merck supplies the vast majority of its
production (90 %) of biotin to BASF in the form of
animal feed grade 1 % and 2 % concentrations.

(58)

The first company to produce vitamin D3 in industrial
quantities was Duphar, formerly part of Philips and now
owned by Solvay. Solvay Pharmaceuticals produced
about half the world requirement of vitamin D3 in the
early 1990s but its share of the (cid:145)third party(cid:146) market was
much smaller. This was because some 40 % of Solvay’s

(64)

In Europe the biotin market is now worth some EUR 25
million (in 1995, ECU 36 million). Food/pharmaceutical
grade (100 % pure) biotin is priced per gram. In 1990
the European price was around ECU 6,8/gm (DEM
14/gm), remaining stable until about 1995 since when
it has declined steadily. The current price is around EUR

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3,0/gm. The feed grade biotin price in 1990 was ECU
3,5/gm for the active ingredient. It begun to decline in
1995 and biotin feed grade currently sells at about EUR
1,0/gm.

Beta-carotene and carotinoids

Strictly speaking these products are not vitamins.
Beta-carotene is a pro-vitamin of vitamin A found
naturally in plants; when ingested it is converted by the
living organism into vitamin A. The vast majority of
beta-carotene supplies are purchased by the food and
also by the pharmaceutical industry.

and to impart

Carotinoids are mostly used as pigments for foods and
cosmetics
flesh.
Carotinoids are generally classified by the colour they
produce when ingested by animals. Canthaxanthin and
citranaxanthin are used to produce a red or golden
colour and are referred to as the red carotinoids.

to animal

colour

shares in the EEA and worldwide of over 50 % for any
of the relevant vitamin products.

(71)

Transportation costs and tariff barriers could lead to
somewhat higher costs, but they did not prevent the
producers of any of the relevant vitamin products from
trading on a worldwide basis. This is demonstrated by
the fact that a number of companies based in Japan
traded in Europe. In addition, all the main companies
sold the various products in the main regional markets
America, Asia, Europe.

(72)

the worldwide character of

Finally,
the markets for
vitamins A, E, B1, B2, B5, B6, C, D3, H, folic acid,
beta-carotene and carotinoids is also confirmed by the
structure, organisation and operation of each of
the
cartels.

(73)

The Commission therefore concludes that the markets
for vitamins A, E, B1, B2, B5, B6, C, D3, H, folic acid,
beta-carotene and carotinoids are worldwide.

1.2.4. INTER STATE TRADE

The only producers of these products worldwide are
Roche and BASF. Until the early 1990s Roche was the
dominant producer with a 90 % market share. In 1991
BASF expanded its production facilities for beta-carotene
and by late 1992 had doubled its share of the market in
this product to 21 %.

(74)

the

consumption of beta-carotene

The European market for beta-carotene in 1993 was
worth some ECU 45 million,
increasing by 1998 to
some ECU 76 million. Germany accounts for more than
half of
in the
Community/EEA. The beta-carotene price in 1993 was
is now around EUR 748/kg. The
ECU 677/kg;
Community market
the principal
carotinoid product, is in the region of EUR 50 million
annually. The price for canthaxanthin is currently
around EUR 1 250/kg.

for canthaxanthin,

it

European bulk vitamin production is concentrated at a
small number of sites. Roche manufactures vitamins A
and E at Sisseln, Switzerland, while BASF’s facility is in
Ludwigshafen (Germany) and Rh(cid:244)ne-Poulenc’s plant in
Commentry (France). Vitamin C is now produced by
in
Roche at Dalry, Scotland (the Grenzach plant
Germany for vitamin C closed in 1994) and by BASF in
Grenaa, Denmark. The third European producer
is
Merck in Germany. Roche’s B-complex production is at
in
in Germany.
Grenzach
Ludwigshafen and Grenaa.

factories

BASF

has

(75) Most Community/EEA Member

the
the vast
their bulk vitamin requirements,
totality of
majority of this from production originating in another
Member State (Denmark, France, Germany, the United
Kingdom).

import

States

(65)

(66)

(67)

(68)

1.2.3. THE RELEVANT GEOGRAPHIC MARKET FOR

VITAMINS A, E, B1, B2, B5, B6, C, D3, H, FOLIC ACID,
BETA-CAROTENE AND CAROTINOIDS

(69)

The Commission considers that the markets for vitamins
A, E, B1, B2, B5, B6, C, D3, H, folic acid, beta-carotene
and carotinoids are at least EEA-wide. However, there
are several indications that point to worldwide markets
for each of the vitamin products.

1.2.5. THE PRODUCERS

1.2.5.1. Roche

(76) Hoffmann-La Roche AG is one of the world’s largest
research-based pharmaceutical and healthcare groups.
The company’s headquarters are in Basel, Switzerland. It
has manufacturing facilities in a number of Member
States.

(70) During the relevant period, the vitamin markets for all
the products mentioned were essentially dominated by a
global leader, Roche, and a very significant presence of
two other producers, BASF and Takeda, the latter for
vitamins B1, B6 and C. The combination of Roche with
the other two producers resulted in market
one of

(77)

Total group sales worldwide in 1998 were CHF 24,66
billion (ECU 15,3 billion) producing a net income of
CHF 4,4 billion equivalent
sales. The
vitamins and fine chemicals division accounted for 15 %
of group turnover (CHF 3,63 billion). Vitamin sales

to 18 % of

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worldwide totalled CHF 1,96 billion and carotinoids also
this procedure, although not strictly
the subject of
speaking vitamins CHF 650 million. The Division’s
earnings before interest, tax and depreciation in 1998
were CHF 869 million (24 % of sales) or ECU 539
million. Operating profits were CHF 673 million (ECU
417 million). Roche is the largest manufacturer of
vitamins both worldwide and in Europe. The company
started producing vitamin C by chemical synthesis in
1935 and expanded its activities to produce the whole
range of vitamins. In the vitamins industry as a whole,
Roche has a market share of around 50 % worldwide.
Its range of production is the widest of all the vitamin
producers. Roche also supplies other vitamin products
bought in from other manufacturers so that it markets
the full range of vitamins for all possible uses: animal
feed, food, pharmaceutical and cosmetics (6).

(78)

The Vitamins and Fine Chemicals Division of Roche is
now located at Kaiseraugst, near Basel. Vitamins and
carotinoids account for 72 % of the Division’s turnover.
Other products of the Division include feed enzymes,
emulsifiers, citric acid and fatty acids.

(79)

the division is

The head office of
responsible for
(cid:145)strategic issues(cid:146), while operational matters fall under five
area centres which cover respectively Europe, North
America, Latin America, Asia-Pacific and China.

(80)

SA,

Europe

Roche Vitamins
and
distribution organisation for Europe, the Middle East,
Africa
[(cid:133)] (*).
Distribution centres for Europe are located in Venlo (the
Netherlands) and Village-Neuf (France).

located in M(cid:252)ttenz.

the marketing

and India

is

turnover of
the BASF group including subsidiary
a 50 %
companies
shareholding in 1997 was some DEM 54 billion (ECU
27,45 billion).

in which BASF has

least

at

(83)

(84)

BASF’s core business is divided into five segments:
chemicals; plastics and fibres; colourants and finishing
products; health and nutrition; oil and gas. The health
and nutrition segment of BASF includes
the fine
chemicals division which in turn includes vitamins for
human and animal nutrition. BASF produces vitamins as
bulk chemicals and in pre-mixes in Europe, North and
South America and in China.

In Europe it has vitamin manufacturing facilities at its
Ludwigshafen headquarters in Germany as well as at
three sites in Denmark: Grenaa, Ballerup and Dianalund.
The vitamin products common to the production
programme of Roche and BASF are vitamins A, E, B2,
B5, C, D3, beta-carotene and carotinoids. In two other
vitamins (B1 and H) BASF is a major bulk supplier
itself manufacture the product.
although it does not
BASF ceased its own production of vitamin B1 in 1989
but continued to act as a major supplier selling product
bought in from other producers. It also purchases for
resale the major part of the biotin (vitamin H) output of
another German producer, Merck.

executives
(85) During the
responsible
the
president of the fine chemicals division and the head of
marketing for vitamins.

relevant period,
for BASF’s vitamin business were

senior

the

(86)

senior

The president of the fine chemicals division was the
most
operational
responsibility for vitamins and reported directly to a
designated member of BASF’s board of
executive
directors (Vorstand).

officer with

corporate

(81) During the relevant period, the most senior corporate
officers responsible for the vitamins business were the
head of the vitamins and fine chemicals division, who is
also ex officio a member of the executive committee of
Hoffmann-La Roche AG and the head of vitamins
marketing.

(87)

The head of vitamins marketing reported to the head of
the fine chemicals division and was the most senior
executive with sole responsibility for vitamins.

1.2.5.3. Rh(cid:244)ne-Poulenc (now Aventis)

1.2.5.2. BASF

(88)

Rh(cid:244)ne-Poulenc SA, whose corporate headquarters were
in Courbevoie, France, was an international company
involved in the research, development, production and
intermediate
and
marketing of organic
chemicals,
plastics,
chemicals,
pharmaceuticals and agricultural chemicals.

inorganic

speciality

fibres,

(82)

chemical

a multinational

company
BASF AG is
organised under
the laws of Germany and has its
principal place of business in Ludwigshafen, Germany.
Its operations cover oil and gas, bulk chemicals, plastics,
high performance chemical products, plant-protection
consolidated
products

pharmaceuticals.

The

and

(89)

Its three core businesses were pharmaceuticals, plant
and animal health and speciality chemicals. Total group
sales in 1998 were FRF 86 800 million (ECU 13,15
billion).

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(90) On 1 December 1998 Rh(cid:244)ne-Poulenc and Hoechst AG,
announced their
the German chemical producer,
agreement on a plan to merge their
life sciences
activities in a new entity (cid:145)Aventis(cid:146) to be owned 50:50 by
the two parent companies and to divest their chemical
operations over a three-year period. The next step was
to be
two parent
the
companies.

complete merger of

the

(91) An accelerated programme for the merger project was
announced in May 1999, subject
to regulatory and
other approvals. On 9 August 1999 the Commission
decided under Article 6(1)(b) of Council Regulation EEC
No 4064/89 of 21 December 1989 on the control of
last
concentrations
amended by Regulation (EC) No 1310/97 (8) not
to
oppose the concentration and to declare it compatible
with the common market (9).

undertakings (7),

between

as

is

led by

four members

announced. Aventis

(92) On 15 December 1999 the completion of the merger
a board of
was
and an executive
management of
committee which consists of the four board members
and five other senior executives. The new group is
divided into two business areas, Aventis Pharma and
Aventis Agriculture. Aventis Agriculture comprises the
crop science, plant biotechnology, animal nutrition and
animal health businesses. The chief executive officer of
Aventis Agriculture, who was formerly the president of
Rh(cid:244)ne-Poulenc’s plant and animal health division, is also
a member of the executive committee of Aventis. The
new company is headquartered in Strasbourg.

(93)

(94)

Rh(cid:244)ne-Poulenc Animal Nutrition (RPAN) was a wholly
owned subsidiary of Rh(cid:244)ne-Poulenc which produced
and marketed nutritional additives including vitamins
and amino acids for use in animal foodstuffs (poultry,
Its name has been changed to
pigs and ruminants).
(cid:145)Aventis Animal Nutrition(cid:146). RPAN was directly attached
to
of
animal
Rh(cid:244)ne-Poulenc SA and reported to it accordingly.

division

health

plant

and

the

RPAN’s worldwide corporate headquarters is in Antony,
near Paris.
It also has regional sales headquarters for
Europe, the Middle East and Africa (based in France);
North America; South America and Asia-Pacific. RPAN’s
main feed additive products are vitamins A and E used
in poultry and pig feed and methionine, an essential
amino-acid used mainly for poultry feed and not the
subject of the present procedure. Vitamins A and E are
produced in Commentry,
France. Some 90 % of
Rh(cid:244)ne-Poulenc’s vitamin production is sold in (cid:145)straight(cid:146)
form, the rest in pre-mixes.

(95)

(96)

(97)

(98)

(99)

RPAN produced vitamins only for
market,
human vitamins’ market in or about 1988.

feed
its predecessor company AEC having left the

the animal

The most senior corporate officer in Rh(cid:244)ne-Poulenc
with operational responsibility for the vitamins business
was
executive officer of
and chief
Rh(cid:244)ne-Poulenc Animal Nutrition.

the president

Prior to the merger with Hoechst, RPAN was subject to
the direct supervision of the president of the AGRO
division of Rh(cid:244)ne-Poulenc, renamed plant and animal
health division in 1997. Following the merger with
Hoechst, the equivalent post is currently CEO of Aventis
Agriculture.

1.2.5.4. Lonza

Lonza AG is a Swiss chemical producer founded in
1897.
In 1994 it was acquired by what was then
Alusuisse AG, as an independently managed subsidiary
and became part of
the Alusuisse Lonza Group
(Algroup).

largest

industrial
The group, one of Switzerland’s
companies, was active for 25 years
in aluminium,
packaging for pharmaceuticals and cosmetics, chemicals
and energy. In 1998 Algroup demerged its chemicals
the group in
and energy activities from the rest of
anticipation of the proposed merger of its aluminium
and specialty packaging activities with those of Pechiney
and Alcan (10).

(100) The demerged entity is responsible for fine chemicals,
food additives and biotechnology products worldwide
and energy generation in Switzerland and is named
Lonza Group AG.

(101) Despite the multiple restructuring of Lonza AG’s parent
the company has never been merged into
separately

groups,
another operation and has
managed undertaking.

remained a

(102) Net sales for 1998 of the entity now constituted as
Lonza Group AG were CHF 2 153 million (ECU 1 340
million) and operating profit CHF 292 million (ECU
182 million).The group headquarters of Lonza Group
AG are in Zurich. The fine chemicals and specialties
division of Lonza Group is incorporated as Lonza AG (a
100 % subsidiary) and is located in Basel. Net sales of
Lonza AG in 1998 were CHF 1 012 million (ECU 627
million).

1.2.5.5. Solvay

(103) Solvay Pharmaceuticals NV whose headquarters are in
Weesp, the Netherlands, is part of the pharmaceuticals

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group of Solvay SA, the Belgian chemical producer. Up
to 1980 it was part of the Philips industrial group. It
produces pharmaceutical drugs for human use. The only
vitamin it produces and sells is vitamin D3. Its total
turnover in 1998 was NLG 788 million (ECU 355
million).

(112)

Its total sales in 1998 were JPY 4 097 million (ECU 28
million). The only relevant product for present purposes
is folic acid.

1.2.5.10. Sumitomo

1.2.5.6. Merck

(104) Merck KgaA of Darmstadt, Germany is a pharmaceutical
and health product manufacturer. It is established as the
operating subsidiary of E. Merck oHG, a general
partnership dating from 1827, which owns 75 % of the
capital.

(105) Up to mid-1995 the business was owned by E. Merck
oHG. In July of that year, Merck KgaA was set up and
the commercial operations were transferred to it; E.
Merck oHG now acts purely as a holding company.

(106) Total sales (all products) in 1998 were DEM 8,1 billion
(ECU 4,12 billion). Merck’s relevant products for the
purposes of
this procedure are vitamins C and H
(biotin). The vast majority of Merck’s output of biotin is
supplied to BASF which resells in bulk.

1.2.5.7. Daiichi

(107) Daiichi Pharmaceutical Co. Ltd of Tokyo,

Japan, was
founded in 1915 and produces a wide range of ethical
pharmaceuticals, over-the-counter health products and
veterinary products.

(108) Sales in 1998 came to JPY 280 805 million (ECU 1,92
in

relevant vitamin production is

billion). Daiichi’s
vitamins B5 (calpan) and B6.

1.2.5.8. Eisai

(109) Eisai Co.

Ltd of Tokyo is

Japanese
pharmaceutical and drug manufacturer specializing in
ethical drugs.

leading

a

(113) Sumitomo Chemical Company Ltd of Osaka and Tokyo
is one of Japan’s largest chemical manufacturers, with a
product range including basic chemicals, petrochemicals,
fine
and
agricultural
pharmaceuticals.

chemicals,

chemicals

(114) Total group sales in the financial year ending 31 March
1999 were JPY 927 700 million (ECU 6,3 billion).
biotin (vitamin H) and folic acid are the relevant
products for present purposes.

1.2.5.11. Sumika

(115) Sumika Fine Chemicals Company of Osaka, Japan, is a
Sumitomo Chemical

wholly owned subsidiary of
company.

(116)

It was formed in April 1992 from the merger of
Yodogawa
Chemical
Pharmaceutical with Daiei
Industries and Okayama Chemicals on which occasion
the new name was adopted.

(117) Total sales in the financial year 1998 were JPY 19 345
million (ECU 132,5 million). The relevant product for
present purposes is folic acid.

1.2.5.12. Takeda

engaged

in 1925,

Industries Ltd, also of Osaka, and
(118) Takeda Chemical
incorporated
in industrial
is
chemicals, drugs, cosmetics and healthcare products and
is a leading manufacturer of pharmaceuticals operating
on a global basis; it is the principal vitamin producer in
Japan and also one of
the main producers of bulk
vitamins worldwide. The Takeda products relevant for
the present case are vitamins B1, B2, B6, C and folic
acid.

(110) Total sales in 1998 (year ending 31 March 1999) were
JPY 284 860 million (ECU 1,95 billion), of which 3 %
was in Europe. Eisai’s only vitamin product is vitamin E,
which accounts for some [5 to 15 ] % of total sales.

(119) Takeda’s total sales in 1998 amounted to JPY 841 816
million (ECU 5,7 billion). Overseas sales accounted for
16,1 % of
total revenue. Food and vitamin products
constituted 10 % of sales.

1.2.5.9. Kongo

1.2.5.13. Tanabe

(111) Kongo Chemical Company Ltd of Toyama, Japan, is a
pharmaceutical

producer

owned

of

privately
preparations.

(120) Tanabe Seiyaku Co. Ltd of Osaka is one of the leading
pharmaceutical producers
in Japan. Pharmaceutical
products accounted for 81 % of revenue in 1998, the
remainder of its business including food additives and

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cosmetics. In 1998 total sales were JPY 216 billion (ECU
1,6 billion). Overseas sales comprised 13,8 % of 1998
revenues.

Vitamin A

Turnover (1998, ECU million) and market share
(1990 to 1998)

(121) The relevant product of Tanabe for present purposes is
biotin. Tanabe buys in other bulk vitamins from other
producers,
including Roche (vitamins B1 and C) and
either uses them in its downstream production or resells
them as a trader.

(122) Tanabe’s main customer for biotin in Europe is [(cid:133)] (*).

1.2.6. TURNOVER AND MARKET SIZE

(123) The following tables give an overview of the relative
importance of each undertaking on the worldwide and
EEA market and of their respective size (11):

Company

F. Hoffmann-La Roche AG

BASF AG

(EUR million) (13)

Total worldwide
turnover (12)
(2000)

17 678

35 946

Aventis SA (formerly Rh(cid:244)ne-Poulenc)

22 304 (**)

Lonza AG

Solvay Pharmaceuticals BV

Merck KgaA

Daiichi Pharmaceutical Co. Ltd

Eisai Co. Ltd

Kongo Chemical Co. Ltd

Sumitomo Chemical Co. Ltd

Sumika Fine Chemicals Ltd

Takeda Chemical Industries Ltd

Tanabe Seiyaku Co. Ltd

700

370

6 740

3 187

3 635

39

10 462

203

9 277

1 950

(**) [Rh(cid:244)ne-Poulenc in 1999: EUR 12 598 million.]

tables,

the first column
For the following series of
shows the name of the company concerned. The second
column shows data for the worldwide turnover in the
vitamin product concerned in the last complete calendar
year of the infringement and, in brackets, the range of
the company’s market share in the worldwide market
concerned during the time period of the infringement.
The third column shows the same information as that
of column two but in relation to the EEA-wide vitamin
product market instead of the worldwide market. All of
these figures are necessarily approximate.

Company

Worldwide

EEA-wide

Roche

BASF

[(cid:133)] ([40 to 50] %)

[(cid:133)] ([35 to 45] %)

[(cid:133)] ([30 to 40] %)

[(cid:133)] ([25 to 35] %)

Rh(cid:244)ne-Poulenc

[(cid:133)] ([20 to 30] %)

[(cid:133)] ([20 to 30] %)

Others

34 (4 %)

28 (9 %)

Vitamin E

Turnover (1998, ECU million) and market share
(1990 to 1998)

Company

Worldwide

EEA-wide

Roche

BASF

[(cid:133)] ([35 to 45] %)

[(cid:133)] ([30 to 40] %)

[(cid:133)] ([20 to 30] %)

[(cid:133)] ([20 to 30] %)

Rh(cid:244)ne-Poulenc

[(cid:133)] ([10 to 20] %)

[(cid:133)] ([15 to 25] %)

Eisai

Others

[(cid:133)] ([5 to 15] %)

[(cid:133)] ([10 to 20] %)

117 (4 %)

72 (8 %)

Vitamin B1

Turnover (1993, ECU million) and market share
(1991 to 1993)

Company

Worldwide

EEA-wide

Roche

Takeda

BASF

Others

58 (53 %)

26 (24 %)

12 (11 %)

13 (12 %)

23 (52 %)

16 (28 %)

3 (9 %)

4 (11 %)

Vitamin B2

Turnover (1994, ECU million) and market share
(1991 to 1994)

Company

Worldwide

EEA-wide

Roche

BASF

Takeda

Others

65 (47 %)

44 (29 %)

24 (12 %)

18 (12 %)

20 (46 %)

14 (29 %)

6 (13 %)

5 (12 %)

Vitamin B5

Turnover (1998, ECU million) and market share
(1991 to 1998)

Company

Worldwide

EEA-wide

Roche

Daiichi

BASF

Others

[(cid:133)] ([30 to 40] %)

[(cid:133)] ([40 to 50] %)

[(cid:133)] ([25 to 35] %)

[(cid:133)] ([25 to 35] %)

[(cid:133)] ([20 to 30] %)

[(cid:133)] ([15 to 25] %)

32 (14 %)

3 (7 %)

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Vitamin B6

Folic acid

Turnover (1993, ECU million) and market share
(1991 to 1993)

Company

Worldwide

EEA-wide

Roche

Takeda

Daiichi

Others

40 (45 %)

11 (10 %)

10 (9 %)

41 (35 %)

15 (51 %)

3 (11 %)

2 (8 %)

11 (30 %)

Vitamin C

Turnover (1994, ECU million) and market share
(1991 to 1994)

Company

Worldwide

EEA-wide

Roche

Takeda

BASF

Merck

Others

266 (40 %)

79 (51 %)

169 (24 %)

13 (8 %)

48 (6 %)

57 (8 %)

18 (11 %)

13 (8 %)

266 (21 %)

43 (22 %)

Vitamin D3

Turnover (1997, ECU million) and market share
(1994 to 1997)

Turnover (1993, ECU million) and market share
(1991 to 1993)

Company

Worldwide

EEA-wide

Roche

Takeda

Sumika

Kongo

9,8 (65 %)

4 (27 %)

0,6 (4 %)

0,8 (5 %)

2,3 (55 %)

1,8 (43 %)

0,03 (> 1 %)

0,12 (2 %)

Beta-carotene

Turnover (1998, ECU million) and market share
(1992 to 1998)

Company

Worldwide

EEA-wide

Roche

BASF

[(cid:133)] ([70 to 80] %)

[(cid:133)] ([80 to 90] %)

[(cid:133)] ([20 to 30] %)

[(cid:133)] ([10 to 20] %)

Carotinoids

Turnover (1998, ECU million) and market share
(1993 to 1998)

Company

Worldwide

EEA-wide

Roche

BASF

[(cid:133)] ([70 to 80] %)

[(cid:133)] ([60 to 70] %)

[(cid:133)] ([20 to 30] %)

[(cid:133)] ([10 to 20] %)

Company

Worldwide

EEA-wide

1.3. PROCEDURE

Roche

Solvay

BASF

Rh(cid:244)ne-Poulenc

Others

26 (40 %)

21 (32 %)

11 (15 %)

6 (9 %)

3 (4 %)

6 (28 %)

9 (38 %)

4 (20 %)

2 (10 %)

1 (4 %)

Vitamin H

Turnover (1993, ECU million) and market share
(1991 to 1993)

Company

Worldwide

EEA-wide

Roche

Sumitomo

Tanabe

Merck

Lonza

BASF

44 (45 %)

22 (23 %)

13,6 (37 %)

4,4 (12 %)

15,7 (16 %)

9,6 (26 %)

6,3 (7 %)

4,7 (5 %)

3,7 (4 %)

4 (11 %)

2,8 (8 %)

2 (6 %)

(124) On 12 May 1999 Rh(cid:244)ne-Poulenc announced to the
Commission that, pursuant to the Commission notice
on the non-imposition or reduction of fines in cartel
cases ((cid:145)the Leniency Notice(cid:146)) (14), it wished to inform the
Commission of
involvement and that of other
producers in the European aspect of a [(cid:133)] (*) vitamins
cartel, and intended to cooperate with its investigations.

its

(125) On 19 May 1999 Rh(cid:244)ne-Poulenc provided a written
summary to the Commission of activities in the market
for vitamins A and E which on its own admission
constituted a violation of Article 81 of the Treaty.

(126) Rh(cid:244)ne-Poulenc provided a supplementary submission to
the Commission on 25 May 1999 containing further
particulars of the cartel.

(127) Roche and BASF wrote to the Commission on 4 and 6
May 1999 respectively followed by a joint approach on
17 May 1999. They informed the Commission of their
intention to cooperate with any investigations, but
without
time providing any statement or
at
documentary evidence.

the

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(128) On 26 May 1999 the Commission addressed to Roche
and BASF requests for information under Article 11 of
Regulation No 17 concerning their
in
suspected collusive arrangements in vitamins A, B2, B5,
C, E, beta-carotene
the products
identified in the United States of America’s proceedings,
(see recitals 149 to 154).

and pre-mixes,

involvement

(129) Each company provided the Commission with a
memorandum admitting infringements of Article 81:
Roche on 4 June 1999, BASF on 15 June 1999. These
statements only covered the vitamin products which
were the subject of the prosecutions in the United States
of America. As
the producers
claimed that while there had been sporadic discussions
on pre-mix in Europe,
there had never been any
effective agreements for this format, since most sales
were made as (cid:145)straights(cid:146) (15).

regards pre-mixes,

(130) By letter of 23 June 1999, BASF provided the
Commission with an extensive bundle of documentation
relating
and
the
monitoring systems operated under the cartel for the
above vitamin products from 1989 onward.

principally

volume

control

to

and 20 October 1999 concerning vitamins B1 and B6.
It also provided further documents on folic acid, and on
10 January 2000 provided a response to a request for
information
on
15 November 1999.

relation

acid,

folic

sent

to

in

(136) Daiichi had already supplied on 2 July 1999 a
substantial quantity of documents to the Commission
concerning vitamin B5 before it was sent the Article 11
request, which related to vitamin B6.

(137)

In relation to vitamin B6, Daiichi,
in reply to the
request for information of 19 August 1999, did not
least up to
deny its
mid-1994.

in collusion, at

involvement

(138) Tanabe, in its reply dated 11 October 1999, admitted its
participation in collusion with the other producers of
biotin from October 1991 up to 1994.

(139) On 12 October 1999 the Commission received from
and a memorandum

Eisai
concerning restrictive arrangements for vitamin E.

file of documents

a

(131) Roche also provided the Commission with extensive
documentation on the volume
system in
vitamins A, E, B5, beta-carotene and carotinoids by
letter of 22 June 1999.

control

(140)

reply dated 5 November 1999, Sumitomo
In its
admitted frequent contacts with other biotin producers,
but
any
that
anti-competitive behaviour on its part.

claimed

involve

these

not

did

(132) By letters dated 9 and 16 July 1999 in response to the
Commission’s request for information of 26 May 1999,
Roche provided detailed information and documentation
regarding the arrangements in vitamins A, E, B5, C and
beta-carotene; on 30 July 1999 it provided information
regarding the agreements in vitamins B1, B6, D3, H and
carotinoids. Also pursuant to the information request,
BASF provided information on the meetings
for
vitamins A, E, B5 and C on 16 July 1999.

(133) Solvay

supplied

Pharmaceuticals

a memorandum
concerning restrictive arrangements for vitamin D3 by
supplemented by further
letter of 29 June 1999,
information
on
and
14 September 1999.

documentary

evidence

(134) On 19 and 20 August 1999 the Commission addressed
requests for information to Takeda, Daiichi, Tanabe,
Sumitomo, Lonza and Merck concerning their suspected
involvement
in price fixing arrangements for certain
vitamins. The requests did not relate to all the products
in respect of which collusion on their part was
suspected (16).

(135) On 9 September 1999 the Commission received from
Takeda a file of documents relating to vitamins B1, B2,
B6, C and folic acid. Takeda claimed it had already
prepared the file before receipt of the Article 11 request.
It provided a reply to the request for information on 18

(141) Lonza, by letter of 24 September 1999 in response to
the request of the Commission, admitted participation
in a number of multilateral meetings with other
producers of biotin and the anti-competitive nature of
these.

(142) Merck admitted in its reply of 26 October 1999 that it
in discussions on pricing with
had participated
competitors regarding biotin. On 22 November 1999 it
provided certain relevant documents
regarding the
arrangements in that product.

1.3.1. THE ADMINISTRATIVE PROCEDURE

(143) On 6 July 2000 the Commission initiated proceedings
in the present case and adopted a statement of
objections against the addressees of the present decision.

(144) The

companies had access

to the Commission’s
investigation file by means of a CD-ROM which
contained all accessible material
file. This
CD-ROM was sent to them shortly after the statement
of objections had been issued.

in the

(145) Sumitomo and Sumika argue that they did not have
complete access to the file as the Commission did not

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provide non-confidential versions in all cases nor a
detailed description of the content of these documents
and therefore might have violated the rights of defence
of both companies.

(146) This argument must be rejected. The Commission
provided a full copy of all accessible and partially
including
accessible documents in its file of the case,
accessible
versions
non-confidential
documents, in the CD-ROM which was provided to all
addressees of the statement of objections. A descriptive
list of the content of the non-accessible documents was
established and provided to the same addressees.

partially

of

the addressees of

(147) Having replied in writing to the statement of objections,
all
this Decision except Solvay
Pharmaceuticals BV, Kongo Chemical Co. Ltd and
Sumika Fine Chemicals Ltd attended the Oral Hearing
on the case, which was held on 12 December 2000. At
the Oral Hearing the undertakings were also given the
opportunity to comment on the written replies of the
other parties which had been made available to them
earlier.

(148)

In their written replies to the statement of objections
none of the producers, except Sumitomo and Sumika,
substantially
the
the
Commission based its statement of objections.

on which

contested

facts

1.3.2. PROCEEDINGS IN OTHER JURISDICTIONS

(149) On 8 May 1998 the District Court of Northern Texas
issued a Grand Jury subpoena on Roche’s US subsidiary
company in connection with investigations by the
Justice Department into the vitamins market.

(150) By information filed in the District Court of Northern
Texas, on 20 May 1999, Roche and BASF were charged
with participation in a combination and conspiracy
contrary to Section 1 Sherman Act 1890 (15 USC § 1)
to suppress and eliminate competition by fixing the
price and allocating the sales volumes of certain
vitamins in the United States of America and elsewhere.
Certain individuals were also charged with criminal
violations of the Sherman Act. The vitamins and time
periods concerned were as follows:

(cid:151) vitamins A and E: from January 1990 to February

1999,

(cid:151) vitamin B2: from January 1991 to at least Fall 1995,

(cid:151) vitamin B5:

January 1991 to at

least December

1998,

(cid:151) vitamin C: from January 1991 to at least Fall 1995,

(cid:151) beta-carotene:

from January 1991 to at

least

December 1998, and

(cid:151) vitamin pre-mixes: from January 1991 to at least

December 1997.

(151) By virtue of a plea agreement with the United States of
America, BASF and Roche pleaded guilty to the charge
of conspiracy and were fined USD 225 million and USD
500 million respectively. Two of
senior
executives of Roche, Messrs[(cid:133)] (*) and [(cid:133)] (*), who
were both members of
its executive board, pleaded
guilty to criminal charges and were sentenced to agreed
terms in prison of four and five months respectively, as
well as paying personal fines.

the most

(152) On 9 September 1999 Takeda, Eisai and Daiichi agreed
to plead guilty and pay fines totalling USD 137 million
for their participation in the vitamins conspiracy.

(153) Rh(cid:244)ne-Poulenc was granted conditional immunity from
prosecution under the Department of Justice’s corporate
immunity programme after cooperating with the US
authorities.

(154) The main corporate fines imposed for the vitamins

conspiracy in the US are thus as follows:

(cid:151) Roche:

(cid:151) BASF:

USD 500 million,

USD 225 million,

(cid:151) Takeda:

USD 72 million,

(cid:151) Eisai:

USD 40 million,

(cid:151) Daiichi:

USD 25 million.

(155) The Canadian Commissioner for Competition has also
conducted extensive enquiries into the price-fixing cartel
as it affected competition in the sale and supply of bulk
vitamins in Canada.

(156) On 22 September 1999 Roche, BASF, Rh(cid:244)ne-Poulenc,
Daiichi and Eisai pleaded guilty in the Federal Court of
Canada
charging
conspiracy to prevent or unduly lesser competition in
violation of Section 45 of the Competition Act 1985.

(Trial Division)

indictments

to

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(157) The following criminal law fines were imposed:

(cid:151) Roche:

(cid:151) BASF:

CAD 48 million,

CAD 18 million,

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

CAD 14 million,

(cid:151) Daiichi:

CAD 2,5 million,

(cid:151) Eisai:

CAD 2 million.

1.3.3. THE DOCUMENTARY EVIDENCE

(cid:151) statement

of

BV of
14 September 1999 plus appendices ((cid:145)second Solvay
Statement(cid:146)),

Pharmaceuticals

Solvay

(cid:151) documentation supplied by Takeda on 7 September
1999 concerning arrangements in B1, B2, B6, C and
folic acid (bundle E),

(cid:151) documentation supplied by Takeda on 18 October
1999 concerning arrangements in folic acid (bundle
F),

(cid:151) reply of Takeda of 18 and 20 October 1999 to
request for information concerning vitamins B1 and
B6,

(158) The principal documentary evidence obtained by the

Commission consists of:

(cid:151) statement of Eisai of 12 October 1999 plus annexed

documents (Eisai statement),

(cid:151) statement of Rh(cid:244)ne-Poulenc of 19 May 1999 plus

annexes ((cid:145)Rh(cid:244)ne-Poulenc statement(cid:146)),

(cid:151) reply of Tanabe dated 11 October 1999 to request
for information concerning biotin plus appendices,

(cid:151) supplemental

statement

25 May 1999 plus
supplemental statement(cid:146)),

annexes

of Rh(cid:244)ne-Poulenc

of
((cid:145)Rh(cid:244)ne-Poulenc

(cid:151) reply of Merck dated 26 October 1999 to request

for information concerning biotin,

(cid:151) statement of Roche of 2 June 1999 ((cid:145)Hoffmann-La

Roche statement(cid:146)),

(cid:151) letter of Merck dated 22 November 1999 to request
for information concerning vitamins B1 and B6,

(cid:151) statement of BASF of 15 June 1999 ((cid:145)BASF

statement(cid:146)),

(cid:151) reply of Takeda dated 10 January 2000 to request

for information concerning folic acid.

(cid:151) statement of Solvay Pharmaceuticals BV (concerning
vitamin D3) of 29 June 1999 ((cid:145)first Solvay
statement(cid:146)),

(cid:151) documentation provided by Roche by letter of

22 June 1999 (bundle A),

(cid:151) documentation provided by BASF by letter of

23 June 1999 (bundle B),

1.4. THE CARTELS

(159) This section provides a description of

the facts in
relation to each of the cartels in the different vitamin
product markets concerned, namely the markets for
vitamins A, E, B1, B2, B5, B6, C, D3, H, folic acid,
beta-carotene and carotinoids.

(cid:151) reply of Roche concerning vitamin E under Article
11 dated 9 July 1999, plus annexes 1 to 14 (bundle
C),

1.4.1. VITAMINS A AND E

(cid:151) statement of Daiichi of 9 July 1999 (Daiichi
Statement) concerning vitamin B5 plus documentary
evidence (bundle D),

(cid:151) reply of Roche (vitamins A, E, B2, B5, C, etc) under

Article 11 of 16 July 1999, plus annexes,

(cid:151) reply of BASF (vitamins A, E, B5, C) under Article

11 of 16 July 1999 plus tables,

(cid:151) letter of Roche of 30 July 1999 concerning vitamins
B1, B6, D3, ciotin and carotinoids plus annexes,

1.4.1.1. The origin and basic scheme of the cartels

(160) The European producers

state that prices

for both
vitamin A and E actually fell significantly during the late
1980s as a result of competition. The (cid:145)dramatic(cid:146) fall in
price in vitamin E is attributed by Roche to the (cid:145)price
offensive(cid:146) of Eisai in 1989 (for vitamin A, Roche blames
the aggressive pricing policy of Rh(cid:244)ne-Poulenc). During
the summer of 1989 at least two top level meetings
were held, the first on 7 June between Roche and BASF
in Basel, and the second in Zurich attended by
Rh(cid:244)ne-Poulenc as well. Senior executives of Roche,

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BASF and Rh(cid:244)ne-Poulenc met again in Zurich in or
about September 1989. The meeting lasted two days.
Eisai did not attend; Roche says the idea was to bring
Eisai in at a second stage.

(167) For vitamin E, BASF also provided information on the
achieved sales for 1988 which were equivalent to the
following percentages:

(161) According to Rh(cid:244)ne-Poulenc, Roche was satisfied with
its 50 % market share, BASF wanted an increase from its
the market, and Rh(cid:244)ne-Poulenc would
then 30 % of
have liked more than the 15 % it had but realised that it
would not be possible.

(162) BASF has described in some detail the September 1989
meeting in Zurich which involved the setting up of the
cartel in vitamins A and E.

(163) On the first day senior executives

responsible for
together with
vitamin marketing in each company,
the
some product managers,
market
for vitamins A and E and then agreed the
allocation between the four producers of the world and
respective
regional markets on the basis of
achieved sales in 1988.

identified the size of

their

(164)

In summary, the underlying objective was to stabilise
the world market share of each producer. Market shares
were frozen at 1988 levels; as the market expanded,
each company
in
accordance with its agreed quota and in line with
market growth and not at the expense of a competitor.

could increase

sales only

its

(165) On the second day, the chairmen of the fine chemicals
division or the equivalent and the heads of vitamins
marketing of each company joined the meeting to
approve the agreed quotas and to establish (cid:145)confidence(cid:146)
between the participants that the arrangements would
be respected. The maxim (cid:145)price before volume(cid:146) was
accepted as
the cartel.
the underlying principle of
Specific pricing levels were also discussed.

(166) According to information provided by BASF, the market
shares of each of the vitamin A producers in 1988,
which served as the (cid:145)base year(cid:146) for fixing the quotas,
were:

Hoffmann-
La Roche

BASF

Rh(cid:244)ne-Poulenc

Eisai

46 %

31,1 %

14,9 %

8 %

Western
Europe

Worldwide

46,5 %

28,1 %

15,2 %

10,2 %

(168) These figures may have been slightly adjusted to give
the global
the Zurich meeting were as

the allocated quotas. According to BASF,
market share agreed at
follows:

Hoffmann-
La Roche

BASF

Rh(cid:244)ne-Poulenc

Eisai

Vitamin A

48 %

31 %

Vitamin E

45,5 %

28,5 %

21 %

16 %

(cid:151)

10 %

Roche confirms the vitamin A quotas as per the above.

the framework and procedures of

(169) During the autumn of 1989, the European producers
held a second meeting in Basel in order to develop in
greater detail
the
cartel. For each region,
including Europe, the market
share quotas were further broken down country by
country,
allocations
corresponded with the regional share assigned and the
regional shares added up to the world quotas.

total

that

the

the

so

of

(170) The market for 1990 was estimated and the forecast
agreed; the percentage quotas for each company were
then converted into sales allocations on a tonnage basis
for the world, the region and each national market.

(171) For the duration of the cartel, this exercise was repeated
in the late summer/autumn of each year, and came to
be known as (cid:145)the budget(cid:146).

Structure and participants

Structure of regular meetings

(172) As

the implementation of

the cartel developed, a
complex structure of regular meetings evolved. There
were four levels.

Hoffmann-
La Roche

BASF

Rh(cid:244)ne-Poulenc

46,5 %

29,8 %

23,7 %

Top level

Western
Europe

Worldwide

48,1 %

29,3 %

22,6 %

(173) This level was constituted by the most senior corporate
officers with responsibility for the vitamins business,
and included the divisional heads and sometimes the

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heads of vitamins marketing. Their role was to back the
to define overall
agreement with high-level support,
strategy and ensure each party continued to adhere to
the agreement.

(180) The heads of marketing identified by BASF referred to
the (cid:145)top vitamins operations
by Rh(cid:244)ne-Poulenc as
managers(cid:146) met, usually in August, to exchange global
sales figures and estimates of market size and growth
for the following year and to prepare the budget for the
next year.

Heads of marketing

(174) The heads of vitamins marketing, who might also attend
the top level meetings, took decisions on the practical
operation of the agreements and finalised the budgets.
Some of their meetings might also be attended by the
divisional chairmen. They met two or three times per
year.

(181) These meetings, referred to as (cid:145)budget meetings(cid:146), were
invariably organised by Roche and were held in hotels
in or around Basel. According to Rh(cid:244)ne-Poulenc, Roche
first made a presentation on the current state of the
market with tables prepared from the information
which the others had provided in advance by telephone.

Global product marketing level

(175) This level consisted of managers with product marketing
responsibility for vitamins A and E at global level. Their
meetings, held at quarterly intervals, were intended to
monitor the implementation of the quota systems.

(182)

It was in this forum that price increases would normally
be decided: usually the price was raised in steps of five
per cent. Final decisions on pricing were usually taken
in the second half of the year, a typical effective date for
an increase being 1 April of the following year.

Regional product marketing level

(183)

If a price increase was decided, Roche usually took the
it
lead and announced first. Apparently however,
occasionally asked BASF to lead the increase publicly.

(176) These meetings, which were organised by the regional
management and involved the heads of marketing for
each region,
including Europe, were held about four
times a year. Discussions included pricing to individual
customers. The group was also responsible for:

(cid:151) monitoring sales against budget on a regional level

and making adjustments if necessary;

(cid:151) identifying relevant market developments

inside

their region;

(cid:151) implementing the price increases agreed at the more

senior levels.

(177) Often the regional meetings for Europe were combined
with global operational meetings at a higher level.

(178) BASF named the usual participants in the meetings over

the relevant period.

The interaction between the different groups

(179) The cartel’s operations centred on the preparation and
(cid:145)budget(cid:146). Indeed in this
closely
financial management and

implementation of the annual
and other
modelled on the internal
controls of a single undertaking.

its mechanisms were

respects

(184) After the August budget meeting the three division
chairmen (in the case of Rh(cid:244)ne-Poulenc, the president
of RPAN), met so that the operations managers and
heads of marketing who had attended the budget
meetings could present the previous year’s results.

(185) The meetings were also held in hotels in or near Basel.
At
the meetings, which were organised and led by
Roche, Roche presented market developments and the
Division Chairmen would discuss the size of the market,
increases in market shares, price movements and resolve
potential problems.

(186) The most senior corporate executives from Roche, BASF
and Rh(cid:244)ne-Poulenc who supervised the
vitamins
business held further meetings once or twice a year in
Basel, Paris and Frankfurt, the meetings apparently being
organised in turn by each of the companies involved.
there was no specific
According to Rh(cid:244)ne-Poulenc,
agenda. These are however presumably the meetings
described by Roche. Their purpose was to demonstrate
top-level support for the cartel and to determine overall
strategy.

(187) The regional meetings for Europe were also usually
organised by Roche and held in Basel. These meetings

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were scheduled in the month following the end of each
quarter. The regional marketing managers reported on
market developments
level of
meetings which took the necessary decisions.

to the more senior

(188) The managers who attended the European regional
meetings had weekly telephone contact
in order to
monitor the agreements on pricing and sales volumes
and to discuss individual customers. Every month they
exchanged the volumes of vitamins A and E sold in
each national market. Roche provided the others with
the monthly sales of Eisai in the European market as a
whole rather than for each country.

Volume control mechanism: (cid:145)budgets(cid:146)

Vitamin A

(194) For

the whole (cid:145)region(cid:146) which also includes Eastern
Europe, Africa and the Middle East, the quotas proposed
are 45,3 % for Roche, 31,6 % for BASF and 23,3 % for
Rh(cid:244)ne-Poulenc.

(195) For West Europe as a whole, the quotas are given as
44,3 % for Roche, 32,1 % for BASF and 23,6 % for
Rh(cid:244)ne-Poulenc.

(196) The information for the whole year was maintained on
a cumulative monthly basis to ensure that each party
kept to its agreed market share; if one was seen to be
selling more than its allocated quota, it would have to
(cid:145)slow down(cid:146) sales to enable the others to catch up. If at
the end of the year a producer was substantially ahead
of its quota, it had to purchase vitamins from the others
in order to compensate them for the corresponding
shortfall in their allocation.

General

Vitamin E

(189) The fundamental

idea underlying the cartel was to
freeze market shares in both products at the 1988 level.

(190) All three major European producers have supplied to
the Commission tables and spreadsheets created and
used for the purposes of calculating, reviewing and
agreeing the sales quotas of vitamins A and E for each
regional and national market.

(191) Those provided by BASF are probably the most
complete set of documents relating to the (cid:145)budget(cid:146) and
the
may be used to demonstrate the operation of
volume control mechanism. For the most part, the BASF
support
documents
consist of
documents used to fix the annual
for each
producer on a country-by-country basis and (b) charts
comparing the actual sales of each producer with their
respective (cid:145)budgeted volumes(cid:146), i.e. their quota for each
regional and national market both on an annual basis
and for interim periods (sales figures in volumes were
exchanged on a monthly basis).

(a) worksheets or
(cid:145)budget(cid:146)

(192) The documentation provided by Roche consists of (a)
spreadsheet documents established from data supplied
by the other producers and reflecting the volume
allocation agreements and monthly and yearly results
exchanged by the participants;
(b) charts prepared by
Roche for budget discussions and meetings.

(197) A similar computerised database was kept for vitamin E,
charts
(cid:145)feed(cid:146),
are
for
the volumes are

although (1)
there
(cid:145)pharmaceutical(cid:146) and (cid:145)total(cid:146) and (2)
given in metric tonnes.

separate

(198) Documentation provided by BASF for the year 1998
may again be taken as illustrative of the functioning of
the system which operated along these lines also for the
years 1989 to 1997.

(199)

In the vitamin E spreadsheets the three main producers
are again designated as (cid:145)1(cid:146), (cid:145)2(cid:146) and (cid:145)3(cid:146); (cid:145)4(cid:146) refers to Eisai
and (cid:145)5(cid:146) to other producers.

Minimum and target prices

(200)

(cid:145)top-level(cid:146) meeting in Zurich in September
In their
1989,
the divisional chairmen of Roche, BASF and
Rh(cid:244)ne-Poulenc had agreed to a policy of (cid:145)price before
volume(cid:146).

(201) The decisions on whether, when and by how much to
increase prices were taken by the heads of vitamin
marketing in their periodic meetings. Final decisions
were generally taken in the second half of each year
with a typical effective date for the (cid:145)increase(cid:146) being the
following 1 April.

(193) The (cid:145)budget(cid:146) documentation for

the year 1998 is
representative of the whole and may be taken as an
example (17).

(202) At the beginning of the cartel the parties had agreed on
a price increase of about 10 % for both vitamins A and
E.

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(203) The parties normally agreed that one producer should
first (cid:145)announce(cid:146) the increase, either in a trade journal or
in direct communication with major customers. Once
the price
cartel
member, the others would generally follow suit.

announced by one

increase was

(204)

In this way the concerted price increases could be
passed off, if challenged, as the result of price leadership
in an oligopolistic market.

(205) The Commission has obtained internal pricing and
management documentation from both Roche and
BASF showing that both producers habitually worked
on the basis of (cid:145)list(cid:146) (or (cid:145)target/Ziel(cid:146) and (cid:145)lowest(cid:146) prices).

(206) An illustration of the utilisation of the price targets is
provided by Roche’s (cid:145)pricing sheet(cid:146) for vitamins A and E
issued to the business units in March 1991.

(207) The objective for vitamin A was to increase prices in
CHF by 5 % to 10 % for 1991 while balancing out the
USD/DEM price differential to discourage brokers. While
Managers are instructed to hold the worldwide market
at 48 %, they are ordered to put (cid:145)price target before
quantity/market share target: do not overshoot quantity
by not achieving price target(cid:146) c.f.
the (cid:145)price before
tonnage(cid:146) maxim. in recital 200 above.

(212) There were also separate meetings between Roche and
Eisai on vitamin E which are documented in a Roche
internal memorandum headed (cid:145)Eisai history(cid:146) beginning
with a top-level meeting in Japan in September 1990.

(213) A follow-up meeting took place in Basel on 25 October
1990 in which Eisai executives confirmed the readiness
of their company to enter the (cid:145)club(cid:146), on condition that
the members exchanged their sales data.

(214) The three European producers agreed in a trilateral
meeting held in Basel on 30 October 1990 to include
Eisai
in the scheme for an initial five years with an
allocation of 1 600 tonnes subject to increase in line
with market growth. For Eisai the advantage would be a
guaranteed volume of sales and higher prices.

(215) Since during most of 1990 Eisai was not definitively
inside the scheme for vitamin E and had supplied more
volume than anticipated, the arrangements apparently
had not resulted in any great increase in price during
that year.

(208) The pricing sheet shows the (cid:145)list(cid:146) and (cid:145)lowest(cid:146) prices to
be applied for each product form in DEM and USD for
the second and third quarters of 1991.

(216)

In December 1990 Rh(cid:244)ne-Poulenc’s vitamin E factory
was severely damaged by fire. The major producers
concluded that customers would be prepared to pay
higher prices in the face of a product shortage, they also
concluded that vitamin A prices could be increased at
the same time on the back of the shortfall in vitamin E.

(209) To implement the increase the business unit is warned
that in Europe (cid:145)Present DEM prices in Feed to be strictly
applied in second quarter 1991. Price increase of + 10 %
to be prepared and announced in May with immediate
effect for spot business and all third quarter contracts.
Food/Pharma prices
strictly applied.(cid:146) Similar
instructions are given for vitamin E.

to be

(210) During the 1991 concerted initiative, new prices were
initiated each quarter;
from the beginning of 1993,
prices were increased as a rule once a year, usually on
1 April, with 1 October being kept as a fallback date in
addition.

Operation of the cartels (1989 to 1997)

(211) During the first year of

the cartel, executives from
frequently to
Roche, BASF and Rh(cid:244)ne-Poulenc met
concretise
arrangements: Rh(cid:244)ne-Poulenc has
identified some nine meetings in Basel between January
1990 and January 1991.

their

(217) Although Rh(cid:244)ne-Poulenc

this

presents

fortuitous
incident as the catalyst
the
cartel, it is clear from BASF’s and Roche’s accounts of
events
the cartel and the
machinery for
its implementation had already been
agreed by the end of 1989.

for the consolidation of

the framework of

that

(218) Following a (cid:145)summit(cid:146) meeting in Japan on 8 and 9
the three
January 1991 between senior officials of
European producers and Eisai
(recital 234), the latter
confirmed its willingness to join the worldwide volume
allocation scheme for vitamin E and its quota was raised
from 10 % to 11 %. Eisai appears to have rationalised
the discussions with competitors in terms of antitrust
the three separately for 20
law by meeting each of
minutes each;
it disingenuously calls these meetings
(cid:145)courtesy calls(cid:146). Whatever ambiguity Eisai may have
hoped to engender by this colourable device, the effect
was negated by its inviting all three competitors to a

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(cid:145)joint meeting(cid:146) immediately afterwards in a restaurant in
which on its own admission an (cid:145)orderly marketing(cid:146)
system was proposed and discussed.

effect new (cid:145)limit(cid:146) prices: the minimum amount of the
increase was to be DEM 2 for vitamin A and DEM 1 for
vitamin E.

(219) The agreement was confirmed a few weeks later when
senior executives of Roche visited Japan and met Eisai
(recital 236).

(225)

(220) The definitive inclusion of Eisai

that

product

in the volume and
pricing scheme for vitamin E, together with the shortage
of product, enabled the four producers to raise prices
1991.
for
Rh(cid:244)ne-Poulenc was supplied by Roche and BASF with
(cid:145)coproducer(cid:146) deliveries until
its plant was back on
stream. At
the same time and in parallel with the
increase in prices for vitamin E, the three European
producers agreed and implemented significant price
rises in vitamin A.

significantly

during

sales
agreed

In 1994 the rapid increase in demand for vitamin E for
human consumption necessitated a revision of the quota
allocated to Rh(cid:244)ne-Poulenc. To maintain its agreed 16 %
the overall market, Rh(cid:244)ne-Poulenc had to
share of
in the animal
feed sector. The
increase its
producers
the
that
1994
in August
Rh(cid:244)ne-Poulenc share of the feed segment be capped at
21 %; if the agreed increase in quota in that area did not
however give Rh(cid:244)ne-Poulenc its full 16 % overall, the
other two European producers would purchase product
from it to compensate for the shortfall. Compensating
purchases were made by Roche in 1996 and by Roche
and BASF in 1997.

(221) Prices for both vitamins increased substantially between
1991 and 1994. The initial price increase implemented
in 1991 was in the order of 10 % (see recital 202).
According to Roche,
to
maintain the achieved price levels.

the goal after 1994 was

(222) The simultaneity and uniformity of the price increases
to the
for vitamins A and E led to complaints
authorities in France from local pre-mixing companies.
An inspection was carried out by the French authorities
on 28 January 1993. Roche informed Takeda of the
outcome in a vitamin C meeting on 8 February 1993.
Takeda duly took note of
their dismissive attitude
towards the investigations:

(cid:145)Nothing was found in the investigation. In addition
an inspection was made of RPAN but nothing was
found. This type of inspection was also held in 1991,
but there was no evidence. R does not consider these
inspections problematic: however
they are being
careful as to how they handle documentation.(cid:146)

(223) By the beginning of 1994, a substantial price gap
(around 10 %) had developed between Europe and the
United States of America for vitamins A and E. Brokers
were using the opportunity to conduct
(cid:145)arbitrage(cid:146)
operations. Roche instructed its area managers on 1 to
4 February 1994 that the (cid:145)key focus regarding 1994
pricing is therefore on Europe ((cid:133)). Our objective is to
bring A prices up by DEM 2 and E prices by DEM 1.
Volumes need to be strictly controlled.(cid:146) BASF had
already drawn the attention of
its European sales
subsidiaries to the phenomenon in September 1993.

(226) BASF has stated that throughout the period of the cartel
the participants contemplated and explored measures to
eliminate or deter marginal competitors in China and
Russia from entering the European market.

The continuation of the cartels after the US
investigations

(227)

In late 1997,
it was publicly reported in the United
States of America that the US Department of Justice had
convened a Federal Grand Jury to investigate possible
criminal violations of Section 1 of the Sherman Act in
the vitamins sector.

(228) The participants in the meetings had already become
aware of the interest of the antitrust authorities in their
secret
the
and sought
arrangements
to minimize
their contacts. The last
number and frequency of
trilateral meeting was held in Basel in November 1997,
when it was decided that in future meetings would only
occur on a bilateral basis.

its

animal

(229) Rh(cid:244)ne-Poulenc says that in December 1997 the then
president of
and plant Health sector
telephoned his counterparts at Roche and BASF and
arranged meetings with them supposedly to announce
his company’s (cid:145)withdrawal(cid:146) from the agreements; on 22
December 1997 he is said to have visited first BASF in
Ludwigshafen and then Roche at
its Headquarters in
Basel to terminate the agreements in vitamins A and E.

(224) On 14 February 1994 BASF announced via the trade
press increases of 5 % for vitamins A and E. Instructions
were given to the sales offices to apply with immediate

(230) This action was (cid:145)announced(cid:146) to the line management of
Rh(cid:244)ne-Poulenc Animal Nutrition in early January 1998.

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the reality was otherwise:

(231) However, whatever formal or official instructions may
senior
have been given,
executives from all three companies decided to continue
the cooperation in a modified form and on a (cid:145)more
discreet basis(cid:146), as BASF put
it. This apparently took
place at the initiative of Roche. A meeting took place
on 15 January 1998 between Roche and Rh(cid:244)ne-Poulenc
and a few days later with BASF. Both encounters are
described by Roche as a (cid:145)top-level and operational
meeting(cid:146). It was decided that there would be no further
as
group meetings but only one-on-one
necessary. Roche has provided a list of these meetings.
For a period of over a year, these senior executives also
exchanged monthly sales data
from their private
residences, the purpose being to monitor any departure
from the agreed quota allocations.

contacts

(232) BASF’s attribution of responsibility for these continuing
contacts to (cid:145)a few individuals(cid:146) in each company has to
be seen in the light of the positions they occupied: the
heads of
and the
vitamins marketing in Roche
commercial director of RPAN.

Eisai. A price increase of approximately 10 % was
agreed (see recital 207). It was also agreed that all their
future contacts would be bilateral only: Roche would
inform BASF and Rh(cid:244)ne-Poulenc of the outcome.
In
turn, Roche would agree its position with the other two
in its
European producers and act on their behalf
dealings with Eisai.

(237) Thereafter there were no multilateral meetings involving
Eisai and the channel of communication with the cartel
was always via Roche.

(238) The usual procedure was

for

the three European
producers to meet first, whether for top-level, budget,
quarterly operational or regional meetings, and then for
Roche to meet one or two weeks later with Eisai at the
appropriate level.

(233) The last known occasion when these contacts took
place was in February 1999; sales data was exchanged
for the month of January.

(239) Eisai provided Roche with its sales volumes in each of
in return Roche gave Eisai the aggregate
the regions;
sales figures for the three European producers combined
on a worldwide and regional basis. It did not supply
individual data.

Involvement of Eisai

(234) Eisai was a producer of vitamin E only and did not take
part in any meetings for vitamin A. As regards vitamin
E, contacts initiated by Roche with a view to setting up
a cartel had already begun in Tokyo on 22 and 23
November 1989 and were followed by the meeting in
Basel on 8 December 1989 with the three European
producers described by Eisai. However, Eisai claims not
to have given any commitment on reducing its
production. Following further meetings with Roche in
Europe and Japan and continuous pressure from Roche,
Eisai invited the senior executives of the three European
producers to a (cid:145)summit meeting(cid:146) on 8 and 9 January
1991. Eisai’s claim to have been on this occasion a
reluctant host (cid:145)surprised(cid:146) by a crude abuse of business
the invitation to
protocol
Roche.

is belied by the terms of

(235) As the invitation expressly states,

the meeting was
intended to confirm the intentions of top management,
to establish a relationship of trust between the parties
and to agree the nature of the next (cid:145)summit(cid:146).

(240) Eisai’s attempts to present itself in these proceedings as
a reluctant participant
in arrangements
simply to
the
are
information(cid:146)
(cid:145)exchange
documentation supplied to the Commission by Roche
originating from Eisai and demonstrating the latter’s
active involvement
in the establishment of a quota
system. Eisai has itself provided to the Commission
documents prepared in connection with these meetings
which disprove its claim.

contradicted

by

(241) A chart prepared by an Eisai employee for a meeting in
February or March 1995 shows Eisai’s results in North
America, Europe, Asia and South America for 1990,
1993 and 1994 and its plan for 1995. A (cid:145)speaking note(cid:146)
for
the same meeting shows Eisai’s declared policy
towards its competitors was to convince them of its
good intentions regarding the cartel arrangement:

(cid:145)The meeting held in January 1991 has been
recognized as (cid:147)base(cid:148) and the result in 1990 was basic
quantity.

(236) A few weeks later, on 30 and 31 January 1991, Roche
senior executives went to Japan to meet separately a
Japanese vitamin producers, among them
number of

As the lowest market share holder, we have started at
11,2 % share (1990) and have been accepted by you
at 11,9 % share’s plan (1991).

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Maintaining our 11 % level share, we have followed
the basic plan proposed by you in every year to
collaborate CLUB.

from the documentation supplied to the Commission by
BASF.

We have respected position and status of each other.

(247)

Starting from the first meeting, we have mentioned
our intention to obtain [5 to 15] % market share in
mid-term (five years) and also [10 to 20] % share in
the long term (10 years).

In the (cid:145)reference year(cid:146) of 1990, the achieved sales and
market shares in Europe are shown as Roche 280
tonnes (38 %), BASF 142 tonnes (20 %) and Takeda 300
tonnes (42 %). Forecasts for each region for 1991 and
the (cid:145)targets(cid:146) for 1992 are also given.

As the result till 1994 per the total table, we have
never deviated from the fundamental agreement and
understanding.(cid:146)

(248) BASF did not attend this meeting, and Roche in its
statement does not refer to its involvement, but it is
clear
that BASF was party to the volume control
scheme: see recitals 260 to 269.

(242) The active involvement of Eisai in the cartel for vitamin
E, whatever artificial devices were adopted to (cid:145)justify(cid:146) the
meetings, enabled the European producers to raise the
price levels in Europe without fear of undercutting by
this Japanese producer. Eisai itself admits that (cid:145)it had a
policy of increasing prices and would follow the price
increases put in place by others.(cid:146) In this context any
suggestion that normal market forces applied must be
assessed in the light of the cartel’s peculiar view of what
constituted (cid:145)price leadership(cid:146): see recitals 200 to 203).

1.4.2. VITAMIN B1 (THIAMIN)

1.4.2.1. The origin and basic scheme of the cartel

(243)

In 1989 Roche had a world market share of 44 %, BASF
had 13 % and Takeda some 31 %, with the Chinese
manufacturers taking 9 %.

(244) According to Roche, the cartel agreement in vitamin B1
was initiated on 30 and 31 January 1991 during the
visit to Tokyo of the head of vitamins marketing, when
he met representatives from Takeda, as well as the other
Japanese
participants
exchanged data on tonnages and market shares in 1990.

vitamin manufacturers.

The

(245) The purpose of the agreement in vitamin B1 was to
increase prices by
and
allocating sales volumes on the basis of the previous
year’s achieved sales.

stabilising market

shares

1.4.2.2. Volume control and monitoring system

(249) Although, in contrast with its disclosure for vitamins A
and E, the main protagonist Roche provided no (cid:145)budget(cid:146)
documentation to the Commission relating to vitamin
B1, Takeda has supplied a considerable volume of its
and
contemporaneous documents,
meeting reports which demonstrate the operation of the
volume control and monitoring system:

including

tables

(cid:151) a document dated 5 June 1991 is headed (cid:145)Vitamin
B1 monitoring 1990(cid:146) and shows for each region
(Northern America, Latin America,
Japan, Europe,
etc.) the sales in tonnes of Roche, BASF, Takeda and
latter presumably
the Chinese producers,
estimated for the year 1990,

the

(cid:151) a document bearing the same date is headed (cid:145)Market
forecast 1991(cid:146) and on the basis of an assumption as
to market growth for each region (Europe is 1,5 %)
shows the allocation of volumes to each producer
for 1991,

(cid:151) a further document, bearing the same date,

is
headed (cid:145)Market Monitoring first quarter 1991(cid:146) and
shows for Roche, BASF and Takeda a comparison of
actual sales against forecast in each region,

(246) Roche did not provide to the Commission details of the
quota allocations for each region, but these can be seen

(cid:151) a document headed (cid:145)Market

and Competition
Monitor (cid:151) Vitamin B1(cid:146) (dated 20 May 1993) shows
the achieved sales of Roche, BASF and Takeda by
region for 1992 compared with their allocations,

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(cid:151) a document dated 5 November 1993 compares
Takeda’s achieved sales for 1992 with its quota
allocation in each region and contains a template to
be completed for a comparison of each producer’s
(cid:145)performance(cid:146) against (cid:145)plan(cid:146) for the period January to
December 1993,

(cid:151) a set of

templates with details filled in for the
comparison on a running quarterly basis of
the
(cid:145)allocation(cid:146) and the (cid:145)result(cid:146) for Roche, Takeda and
BASF for 1993,

(cid:151) similar documentation is available for other years.

1.4.2.3. Cartel meetings

(250) After the first meeting in January 1991, Roche and
Takeda executives met at regular intervals in Tokyo and
Basel at both (cid:145)top(cid:146) and (cid:145)operational(cid:146)
in order to
monitor the application of the quota system and fix
prices.

level

(251) BASF did not take part in the meetings, but it was given
a quota in vitamin B1 which was discussed during the
meetings.

(252) Given that there were cartel arrangements across the
whole range of vitamins which Roche and Takeda
produced in common (vitamins B1, B2, B6, C and folic
acid), their regular meetings often covered these five
the participants at
products. From the Roche side,
technical level would change as the discussions moved
on to the next product, see for example Takeda’s note
of
two-day operational meeting in Tokyo in
November 1992; the first day was dedicated to vitamin
C, while the morning session on the second day covered
vitamins B1, B2 and B6.

the

(253) Takeda’s note of one meeting in November 1992
typifies the proceedings in the operational meetings:

(cid:145)VB1

(1) Exchange of results for January through September

Plan

Sales result

Takeda

644,3

D 30

614,3

R

700,5

D 65

635,6

B

204,0

D 54

149,6

All below expectation. B’s marketing strength is weak.

Taken over by Chinese products

Interested more in keeping the price than quantity

(2) Quota for 1993

Growth rates increased by around 2 %

1992

R

934

900

900

T

859

827

830

B

272

263

265

Total

2 065

1 990

1 995

Chinese

450

525

650

Total

2 515

2 515

2 645

T did not agree
to changes

1993 quota

(3) Price

Unchanged: USD 43,00; DEM 74,00

(4) Chinese Products

Takeda would like to protect its traditional customers by using off-spec products of feed grade. It
is hard to recover customers after they start using Chinese products.(cid:146)

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(254) There were also bilateral meetings between Roche and
Takeda in Basel which covered their common range of
products: vitamins B1, B2, B6, C and folic acid. On
occasion, Takeda also had bilateral meetings with BASF,
which included discussion on vitamin B1.

initially under a five year supply contract. It was still
among the most important suppliers of bulk vitamins in
the Community and worldwide during the duration of
the cartel.

1.4.2.4. The operation of the cartel (1991 to 1994)

(255) From 1991 until about 1993, the price of vitamin B1
the
was gradually increased by the cartel.
producers raised the market price from below DEM 65
to DEM 68/kg. A table dated 29 March 1994 supplied
by Takeda shows the (cid:145)list(cid:146) and (cid:145)lowest(cid:146) prices for the
product in each geographical zone, including Europe.

In 1991,

(261) Tables provided to the Commission by Takeda for
vitamin B1 headed (cid:145)market and competition monitor (cid:151)
vitamin B1(cid:146) and (cid:145)market monitoring(cid:146) and prepared for
the purposes of monitoring collusive arrangements
show for Roche, Takeda and BASF the (cid:145)forecast(cid:146) and
(cid:145)assessment(cid:146) of quantities supplied on a quarterly basis
including
in each of
Europe.

the major geographic regions,

(256) From 1 January 1992 the (cid:145)list(cid:146) price was DEM 76/kg
delivered and the (cid:145)lowest(cid:146) price DEM 74/kg, BASF’s
pricing instructions of 11 December 1991 confirm the
minimum price level of DEM 74/kg.

(262) BASF data is also included in the tables headed (cid:145)Vitamin
B1: market
forecast(cid:146) and in the cumulative tables
showing (cid:145)result(cid:146) against (cid:145)allocation(cid:146) of each producer for
1993.

(257) By late 1992 the effect of competition from Chinese
products was being felt, and the producers were
debating whether to (cid:145)ignore(cid:146) this competition as they
had done in the past, or
to absorb the Chinese
production. By June 1993 the producers had decided to
specific customers who used
compete on price at
Chinese products.

(258) The policy was confirmed at the end of 1993. The basic
plan would be maintained for 1994.
to
maintain their customer base, the producers agreed they
had to align on the Chinese prices for feed grade to
important customers but the low price ought not to be
made universal; higher pricing should continue for food
and pharmaceutical grades.

In order

(259) According to Roche,

the two producers decided by
1994 that the agreement was no longer viable and it
was ended in the first half of 1994; the last meeting for
vitamin B1 was on 10 June of that year. By about the
second half of 1994 the market price for feed grade had
fallen to around ECU 28/kg, from a high of ECU 38/kg.
The development of the price level of vitamin B1 over
the period of the cartel and following its abandonment
is shown in Table IV in the Annex.

1.4.2.5. Involvement of BASF

(260) BASF ceased production of vitamin B1 in 1989 and
from Roche,

subsequently obtained its

requirements

(263)

In Takeda’s memorandum recording its meeting with
Roche in November 1992 for the five vitamin products
they both produced (including vitamin B1) the section
headed (cid:145)Exchange of
January through
results
September(cid:146) compares (cid:145)plan(cid:146) and (cid:145)sales result(cid:146) for Takeda,
Roche and BASF (BASF is also allocated a quota for
1993). The information must have been supplied to
Roche by BASF.

for

(264) Takeda’s more

this meeting
complete minute of
confirms the involvement of BASF in the quota scheme.
Roche reports that:

(cid:145)Because of the influence of Chinese products, neither
R, T nor B were able to reach their project results. B
is especially behind (ﬂ 50 tons) and would desperately
like adjustments to be made.(cid:146)

(265) Roche had clearly been delegated by BASF to speak on

its behalf. The minute continues:

(cid:145)By R: We would like to ask if there is any way that
you could help B, since they are so much behind. (T
replied that B’s products are sold by R, so that if B
needed help, R should provide it).(cid:146)

(266) BASF, while denying direct involvement in the vitamin
itself provided to the Commission

B1 cartel, has

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hand-written tables which (it says) (cid:145)reflect information
conveyed to BASF by a representative of Roche
concerning the
and
Takeda with respect to vitamin B1.(cid:146) It also points out it
does not produce B1. BASF however omits to explain

arrangements between Roche

the incorporation in the tables of a quota allocation to
it (BASF) as well as to (cid:145)Roche(cid:146) and (cid:145)Tak(cid:146). For Europe,
there are similar calculations
for each geographical
region, the table reads:

Europe

1992 B

1990 reference year

%

1991 forecast

Roche

BASF

Tak(eda)

Ziel bei Markt (illegible)
[Target by market]

250

125

240

615

1990

280

142

300

722

38

20

42

280 t

95

240

615

The figures for the 1990 (cid:145)Reference year(cid:146) match those provided by Takeda.

(267) On its own admission BASF was informed of the arrangements with Takeda by Roche, which did
not want BASF to disrupt the vitamin B1 market with its resales:
(cid:145)Pursuant to this arrangement
with Takeda, Hoffmann La Roche instructed BASF as to the prices and volumes of vitamin B1 that
BASF could resell on a region by region basis.(cid:146)

(268) During Takeda’s occasional bilateral contacts with BASF, the subject of vitamin B1 pricing was
visited: when BASF’s head of vitamins marketing was in Tokyo on 13 July 1993 he indicated that
on vitamins C, B1 and B6 BASF (cid:145)will follow the price policies of R(oche) and T(akeda) (cid:133) if the
price increases, we will follow your lead.(cid:146)

(269) Despite the fact it did not attend the meetings between Roche and Takeda, BASF’s involvement in

the collusive scheme to fix the market in vitamin B1 is thus amply established.

1.4.3. VITAMIN B2 (RIBOFLAVIN)

1.4.3.1. The origin and basic scheme of the cartel

(270)

In the period 1988 to 1990, the price of vitamin B2 fell by about 12 %. In order to reverse the
trend, the two major producers decided that concerted action was required.

(271) On 14 and 15 July 1991, representatives of Roche and BASF met at Bottmingen in Switzerland to
agree the framework of a cartel in vitamin B2. Takeda was not present at this initial meeting but
the intention of BASF and Roche was to include it in a second step. Takeda was by then already
involved in the cartel arrangements for vitamins B1 and C.

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(272) Working from their achieved 1990 sales, and estimating the market share of other producers for
each year, they agreed on global quotas to be effective for the period 1992 to 1994 inclusive. The
volume quotas were worked out as follows:

(in tonnes)

1989

1990

1991

1992

1993

1994

1 550

1 450

1 500

1 445

1 450

1 470

770

180

90

775

280

120

800

320

130

840

350

150

870

380

170

900

400

190

2 590

2 625

2 705

2 785

2 870

2 960

Roche

BASF

Takeda

Others

Total

(273) As between Roche and BASF, their respective sales in vitamin B2 were to move from a proportion
of 65:35 in 1990 to 62:38 in 1994. 1992 was to be the first year for the operation of the quota
system. For 1994, Roche and BASF calculated that they would together have 80 % of the available
world market; Takeda was to have 13,5 %, against the figures for Takeda BASF has noted (cid:145)If they
go higher R war ?(cid:146). A document provided by BASF shows the agreement reached in this meeting.

(274) Later in 1991, Roche and BASF senior executives went (separately) to Japan in order to persuade
Takeda to agree to the proposed market allocation in vitamin B2, which it ultimately did by late
1991/early 1992. The discussions during the visit
to Basel on 13 April 1992 of Takeda
representatives on (cid:145)the new price policy to increase the price continuously(cid:146) included vitamin B2.

1.4.3.2. Cartel meetings

(275) The cartel was implemented by quarterly meetings. The usual procedure was apparently for Roche

to meet Takeda first and to then hold a separate bilateral meeting with BASF.

(276) The purpose of the quarterly meetings was to monitor achieved market shares against quota and to
adjust sales levels to comply with the agreed allocations. A control system along the lines of the
vitamin A and E mechanism was developed (see recital 283).

(277) Takeda’s minute of a meeting with Roche in Zurich on 25 May 1993, headed (cid:145)Destroy after

reading(cid:146), may be taken as typical of these meetings for vitamin B2:

(cid:145)1) VB2

(cid:151) Prices are rising smoothly, (R) (T).

e.g. R results in Europe for April, DEM 91,4 (R),

T results in Europe for March, DEM 88.

(cid:151) No likelihood of increase in demand, meaning that a quantitative increase would be difficult.

(R)

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T expects 400 t for 1993, i.e. about the same level as 1992 (T).

((cid:133))

(cid:151) Lohmann (18)

Since R and BASF are in competition, Lohmann would prefer not to purchase the whole
quantity from competitors, i.e. they would prefer to purchase from T. T. should take care with
pricing when making an offer. The price should under no circumstances be too low. (R)

Understood, will contact Mr [Takeda employee] (T)(cid:146)

(278) Takeda also had occasional bilateral meetings with BASF covering vitamin B2, as well as other

products, a memorandum of 13 July 1993 also headed (cid:145)Destroy after reading(cid:146) reads:

(cid:145)VB2 Feed

(B) B’s price in Europe is DEM 90(cid:151)92. However T is offering a lower price of DEM 85/86.
Please correct this as soon as possible.

(T) T is selling at DEM 88/90. On the other hand, B’s offer of the lower price of DEM 86 to DK’s
Loevense is causing problems.

(B) We will check tomorrow and get back to you. We would like to ask that general prices are
kept no lower than DEM 90.

(T) We agree.(cid:146)

1.4.3.3. The quotas

(279) Following Takeda’s entry into the cartel arrangements for vitamin B2, the annual quotas were the
subject of intense negotiation, with Takeda demanding a higher allocation. A Takeda note of a
meeting in or about November 1992 covering the range of vitamins, including B2, reads:

(cid:145)VB2 R January (cid:151) September

(1) Deciding quota

1991

1992

384

320

385

340

1993
R 395

420

360

1994

1995

1996

445

380

472

400

500

420

Talks with R

Talks with B

Makeup of 384

Exports

144

In-house

30

Tokio Tanabe

Takeda US

200

10

Division Manager wished to bring it up to 500 tonnes within 5 years (in 1991)

R made an error in calculation at the time of the 1991 estimation ((cid:133))

Over-achievement should be acceptable if there is no damage to the pricing.(cid:146)

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(280) Takeda’s volume aspirations were clearly a cause of
irritation for Roche. Takeda’s minute of its meeting with
Roche in Tokyo on 17 November 1992 notes as follows
in relation to vitamin B2:

(cid:145)As with VB6, R was cautious of T’s increase in sales
quantity, and kept coming back to T’s words that
they wished to sell 500 tonnes within 5 years.(cid:146)

(281) Roche suggested that Takeda’s quota for 1993 should be
385/390 tonnes, rising to 420 for 1994. Takeda sets
out its reaction as follows:

(cid:145)By T: Since our production capacity is still unclear,
we do not yet know our quantity. Although we are
not serious, Mr [(cid:133)] wishes to obtain 500 tonnes in
1993. The middle ground between this and your
suggestion of 390 would be around 440/445 tonnes.
(R did not ask any further).(cid:146)

in US. R would also like T to go along with this
pricing policy. (T agreed).(cid:146)

1.4.3.4. Volume control and monitoring

(283) As with most other vitamin products, the quota scheme
for vitamin B2 was
the subject of a continuously
system.
and
reporting
updating
monitoring
Documentation was provided to the Commission by
BASF relating to the operation of
the control and
monitoring system for vitamin B2, of which the
following is representative:

(cid:151) sales data for each region (Europe, North America,
Latin America, the Far East and Japan) for the year
1995 and the first three months of 1996. Estimates
are included for producers outside the agreements
(ADM (Archer Daniels Midland); GUS (the Russian
producers)),

(cid:151) a BASF internal worksheet giving its own sales in

each country (19).

(See also a Takeda note of a meeting on 21 April 1993,
reining in its volume
for a reference to Takeda’s
ambitions).

1.4.3.5. Target and minimum prices

(282)

In fact, for 1994 Takeda agreed to keep its sales volume
to about 410 tonnes. In a meeting in the Basel Hilton
Hotel with Roche on 9 February 1994, the participants
exchanged their sales results in vitamin B2 for 1993
and sales plans for the year 1994:

(cid:145)By T: Our 1993 results are 421 t and very close to
the agreed quantity, and we will plan to keep the
same level of around 420(cid:151)440 t
in 1994. With
regard to price, we will support R’s policy fully and
work toward obtaining the lowest price of USD 69,00
cif/DEM 115,00 for USD products and USD 61,00
CIF/DEM 92,00 for feed (US delivered price) (cid:133) In
Europe, B will announce a price raise for feed (4 %)
in mid-February. T would like to raise the lowest
price from DEM 92,00 to DEM 97,00 on April 1. T’s
sales quantity continues to be low, so concentrated
effort will be made toward a raise in price.

(b) With regard to T’s 1993 results and 1994 plans,
these are going according to the basic agreement.

We cannot expect much increase in demand in 1994.
An effort will be made to increase the price in
Europe and maintain the lowest price of USD 61,00

(284) During the course of the cartel, regular price increases
were agreed and bottom price limits fixed. Takeda has
also provided to the Commission tables giving the (cid:145)list(cid:146)
and (cid:145)lowest(cid:146) prices by region for the different vitamins,
including B2 which were in effect during the period
1 June 1991 to 1 April 1993. For vitamin B2,
the
prices were given as follows:

(in DEM)

List

Lowest

1 June 1991

(cid:151) USP

(cid:151) Feed

1 October 1991

(cid:151) USP

(cid:151) Feed

1 October 1992

(cid:151) Feed

1 April 1993

(cid:151) USP

(cid:151) Feed

110

89

117

94

106

84

112

89

99

94

122

102

116

97

(285) The development of the average price level for vitamin
the

B2 over
arrangements ended is shown in Table V in the Annex.

the cartel and after

the duration of

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1.4.3.6. The operation of the cartel (1991 to 1996)

(286) The pricing and volume decisions

reached in the
meetings were implemented by each company issuing
directives to the Regional managers. From 1991 to
1993, prices for B2 were regularly increased (see recital
284).

(287)

In 1993, the parties realised that a US producer, Coors,
had a larger production capacity for vitamin B2 than
they had estimated in 1991. In order to prevent Coors
from disrupting their arrangements by the export of its
production surplus, Roche and BASF agreed that the
to purchase 115 tonnes of
former would contract
in
vitamin B2 (representing half of Coors’s capacity)
1993. BASF in turn would purchase 43 tonnes from
Roche; the burden was thus to be shared in the same
62:38 proportion as their quotas.

(288) Later Coors sold its vitamin B2 plant to Archer Daniels
Midland (ADM).
In 1995, Rh(cid:244)ne-Poulenc and ADM
contracted for Rh(cid:244)ne-Poulenc to market in Europe the
riboflavin produced by ADM in the United States of
America. BASF noted Roche’s (cid:145)ambivalent(cid:146) attitude at
times giving priority to price, at others to volume. BASF
saw no point in raising price levels which would simply
facilitate ADM’s entry to the market. The market share
of ADM in Europe rose from only 2 % to 9 %, mainly at
the expense of Roche. The price level began to decline.
Roche claims it had already become aware that Takeda
was cheating by underdeclaring its sales by up to 20 %.

(289) A (cid:145)confidential memorandum(cid:146) made by Takeda of a
meeting, principally on vitamin C, held on 16 March
1995 with representatives of Roche, BASF and Merck
reads as follows:

(cid:145)There was a harsh comment on our oversupply of
B2.

As agreed between Mr [(cid:133)] (Takeda’s representative)
and Mr [(cid:133)] (Roche’s representative), Takeda’s sales
to 420 t as a
volume should be from 380 t
maximum. According to the statistics of
Japan’s
the statistics relating to the
exports (about 500 t)
import of raw materials and the sales volumes in
Japan (about 80 t), Takeda’s sales volume is 580 t
which exceed 420 t by 40 %. Takeda should clarify
the reasons and its policies.

the appropriate conduit after discussing the matter
within our company.(cid:148) We saw it was not the right
time to have a wet blanket
thrown over our
cooperative
toward raising the price of
stance
V(itamin)C by speaking up our mind.(cid:146)

it had not
(290) Takeda subsequently assured Roche that
expanded its production facilities:
(cid:145)Consequently we do
not expect any extensive increase in the future but we
cannot decrease our sales volumes either(cid:146).

(291) Roche

apparently

the
disagreements to terminate the cartel agreement with
BASF and Takeda in about the third quarter of 1995.

decided

result

of

as

a

1.4.4. VITAMIN B5 (CALCIUM-D-PANTOTHENATE, OR

CALPAN)

1.4.4.1. The origin of the cartel

(292)

In 1989, Roche and Daiichi each had around 35 % of
the global market in Calpan and BASF 20 %.

(293) The background against which the cartel was formed,
suggests Daiichi, was a steady drop in prices
for
vitamins of the B complex during the 1980s and the
weakness of the dollar in 1989 to 1990, leading to zero
profitability for Roche in these products.

(294)

In fact, by Daiichi’s own account,
there had been
orchestrated collusion on the pricing of vitamin B5
between Roche, BASF and Daiichi
from the early or
mid-1980s and continuing until 1989.

(295) According to Daiichi, this collusion did not however
obtain the level of sophistication of
the later cartel
arrangements and (cid:145)appears to have fallen apart in 1989
and 1990(cid:146).

efforts

strenuous

(296) Around the beginning of 1991, says Daiichi, Roche
made
structured
cooperation involving the regular exchange of prices
and sales data, the establishment of (cid:145)budgets(cid:146) aimed at
maintaining market
price
shares,
increases. Daiichi states unequivocally that the collusion
was (cid:145)organised, orchestrated and policed by Roche(cid:146).

to organise

concerted

and

a

To this, we only replied, (cid:147)We are not in a position to
comment on quantities. We will contact you through

(297) According to Daiichi, a representative of Roche visited
Tokyo just prior to Christmas 1990 and insisted in a
meeting with Daiichi,
its
the export of
output; Roche said it had to (cid:145)control(cid:146)

that Daiichi should restrict

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calpan from Japan to other regions (including Europe)
or calpan prices would deteriorate.

1.4.4.3. Target and minimum prices

(298) The proposal of Roche was for the producers to use
fixed quantities (cid:145)as a base(cid:146) and then reach agreement as
to the national growth of demand which could be used
to adjust
the
discussion was (cid:145)conceptual(cid:146), and no reference tonnages
were actually discussed. Daiichi said such a scheme
would not work without BASF, to which Roche replied
that
it would invite BASF to a meeting to agree a
scheme for calpan.

this stage, says Daiichi,

the base. At

(304) The target and minimum prices fixed in the period from
1 October 1991 to 1 April 1993 for Europe were:

1 October 1991

1 April 1992

1 April 1993

List

29,50

32,50

36,50

(in DEM)

Lowest

28,50

31

35

(299) The first (cid:145)trilateral(cid:146) meeting between Roche, BASF and
Daiichi took place in Basel during the first quarter of
1991. At a later meeting in Basel in about mid-1991,
the participants (cid:151) Roche, BASF and Daiichi (cid:151)
provided the details of their calpan sales in each region
for 1990 in order to agree a basis or reference year.

The price lists of Roche and BASF show that
the
target/list price was increased to DEM 39 in 1994
(lowest DEM 37,50); DEM 40 in 1995; DEM 43 in
1997.

1.4.4.2. The basic scheme of the cartel

1.4.4.4. Budgets

(300) The three producers agreed from 1991 onwards on the
allocation amongst themselves of that part of the world
calpan market
(90 %) which they controlled between
them.

(301) Percentage quotas were allocated to each of

the
participants on both a worldwide and regional basis.
According to Daiichi, they varied from year to year,
ranging as follows over the period 1991 to 1999:

(305) As with the other vitamin products, the core of the
cartel was the fixing of the (cid:145)annual budget(cid:146). The three
producers estimated annually the worldwide demand by
projecting changes from the previous year on a regional
basis and aggregating the forecasts. The volume of
DL-calpan to be produced in Japan and Eastern Europe
was also estimated. Volume targets were then set and
percentage market shares allocated on a worldwide and
regional basis.

Worldwide:

Roche 42 to 45 %; BASF 23 to 25 %
and Daiichi 32 to 34 %

Europe:

Roche 40 to 48 %; BASF 19 to 22 %
and Daiichi 30 to 39 %.

(306) Each year there were discussions about the (cid:145)escalation
factor(cid:146),
i.e. normal market growth, and the volume
allocations were adjusted on a regional basis to take
account of the anticipated increase in demand.

(302) Daiichi has provided documentation which would
the three
scheme the

for the reference year 1990,
the basis of

indicate that
producers
following worldwide division of sales:

took as

their

(307) Daiichi says that the budget was initially discussed three
to six months before the end of the calendar year, since
the European producers used a calendar year for this
accounting. Later, to accommodate Daiichi, which used
a fiscal year system ending later,
the meetings were
moved to November.

(in tonnes)

Hoffmann-
La Roche

BASF

Daiichi

Total

(308) Documentation relating to the budgets has been

provided by both BASF and Daiichi.

1 990 (43 %)

1 050 (23 %)

1 500 (34 %)

4 540

(309) The following illustrate the operation of the scheme:

(303) The agreement was implemented by (cid:145)global(cid:146) meetings
held on a quarterly basis, either in Europe or Japan. To
sales
ensure
the
adherence
information was
later
monthly basis. The participants also agreed the details
of concerted price increases, including target prices.

quotas,
assigned
exchanged on a quarterly,

to

(cid:151) a document showing the 1995 actual sale for each
producer; the 1996 (cid:145)budget(cid:146) allocation, and 1996
actual sales ((cid:145)1(cid:151)12/96(cid:146)).
(cid:145)H(cid:146) refers to Hoffmann-La
Roche, (cid:145)B(cid:146) to BASF and (cid:145)D(cid:146) to Daiichi. (cid:145)A(cid:146) designates
Alps,
a
participant in the agreement,

Japanese producer which was not

a

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(cid:151) the (cid:145)Regional(cid:146) market shares of

the three cartel
producers for the years 1992 and 1993 and for
their (cid:145)budget(cid:146) allocation and
1994 were set out,
estimated
additional
document sets out the Roche and BASF sales for the
first six months of 1994 by region,

((cid:145)HR(cid:146)). An

actual

sales

(cid:151) a document supplied by Daiichi but originating
from Roche shows the original and revised budget
quotas by region for 1998,

(cid:151) a further document prepared by Daiichi this time
the three

compares the monthly performance of
producers against budget for 1998.

(310) Volume sales data were reported on a quarterly and
later on a monthly basis. There was no formal
compensation scheme but according to Daiichi, Roche
would complain if it (Daiichi) exceeded its quota while
in practice tolerating a variation of up to 2 %.

1.4.4.5. Cartel meetings

(316)

In addition to the meetings, price
and volume
information was exchanged quarterly until 1996 or
1997 when BASF proposed that henceforth it should be
on a monthly basis.

1.4.4.6. The operation of the cartel (1991 to 1997)

(317) During the period of the cartel,

the three producers
contrived to raise the price of vitamin B5 at regular
intervals in a series of concerted price increases.

(318) The largest step increases in the price of calpan were
made in the period 1991 to 1993, with the price in
Europe going up by some 50 % in two years.

(319) According to Daiichi, either Roche or BASF would
indicate to it periodically that one or the other of them
was going to make a price increase announcement,
advised when it was to take place, and invited Daiichi to
(cid:145)follow(cid:146). These announcements were often made via the
trade press.

(311) From 1991 to 1998, the parties met on a regular basis.
Daiichi has provided a very detailed account of these
meetings.

(320)

In the period covered by the cartel,
the price of
D-calpan feed grade in Europe rose from around DEM
24/kg in 1990 to DEM 42/kg at the beginning of 1998.

(312) Following the confirmation of Daiichi’s adherence to the
cartel mechanism in Tokyo in January 1991, and
another meeting in Basel between Daiichi and Roche,
the first trilateral meeting between Roche, BASF and
Daiichi took place in Basel. There is some confusion
about the participants and the precise date: Roche says
it was in the first quarter of 1991, but Daiichi believes
it was somewhat later.

(313)

It was at this meeting that a definitive agreement was
reached on the allocation of market shares. The fact that
a (cid:145)budget(cid:146) for 1991 was prepared would indicate that
the meeting was in early 1991, if not before.

(314) There was a (cid:145)top level(cid:146) meeting in Baden Baden on 2
June 1992 between Roche and BASF to (cid:145)foster mutual
understanding(cid:146) which included discussion on calpan.

(321) One of the main preoccupations of BASF and Roche
was to ensure that currency fluctuations did not lead to
price differentials between the regions and consequent
transshipment by dealers. Thus when the US dollar
became strong in relation to the Deutschmark, the two
the
European producers were
European prices so as to deter dealers selling from
Europe to North America; such trans-shipment was
feasible as
rose to
10 % (20).

the price differential

concerned to raise

soon as

(322) According to Daiichi, BASF and Roche had another
strategic incentive to raise the price of calpan and
indeed of other vitamins used for animal
feed. Both
have a strong market position in pre-mixes by virtue of
their integrated production of
the vitamins used. By
increasing the prices of the vitamins used in pre-mixes,
they would put a price squeeze on their competitors in
this downstream activity, and over
time drive the
smaller pre-mixers from the market.

(315) Thereafter both (cid:145)top level(cid:146) and (cid:145)operational(cid:146) meetings
took place regularly in Basel, Kaiseraugst
(Roche’s
headquarters for vitamins) and Tokyo. Generally, but
separately with BASF and
not always, Roche met
Daiichi.
in October or
November for the following year.

(cid:145)Budgets(cid:146) were prepared

(323) Daiichi says that

in November 1997 it opposed a
planned increase to DEM 46/kg from DEM 42/kg for
Spring 1998 proposed by BASF, partly because at so
high a price, its pre-mixer customers in Europe would
have every incentive to switch to DL-calpan suppliers in

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Poland and Romania. Even if it opposed the price rise,
BASF and Roche could however (it says) still increase
the price because they produced pre-mix themselves and
their exposure to DL competition was
small. This
perception is confirmed by BASF’s firm declaration in its
instructions to the national sales offices in June 1995:
(cid:145)Mit DL-Calpan Konkurrieren wir auch in Zukunft nicht!(cid:146)
[We will not compete with DL-calpan in the future].

(329) For the development of the price level for calpan over

the duration of the cartel, see Table VI in the Annex.

1.4.5. VITAMIN B6 (PYRIDOXINE)

1.4.5.1. The origin and basic scheme of the cartel

(324) BASF announced the price increase for calpan, as well
as vitamins A, E and B2, via the trade journal
(cid:145)Ern(cid:228)hrungsdienst(cid:146) of 25 February 1998. The limit price
was fixed at DEM 44/kg.

(325) When BASF’s customers resisted the increase, Roche
supported the rise by also announcing an increase to
DEM 46/kg, announced in (cid:145)Ern(cid:228)hrungsdienst(cid:146) of 13 June
1998. According to Daiichi, the concerted increase was
unsuccessful because of customer resistance and the
huge differential between D-calpan and the equivalent in
DL-calpan.

(326) BASF and Roche became aware of the investigations in
the United States of America into vitamins by late 1997
(see recitals 227 to 233). They had already increased
their security precautions two years before when the
ADM case became public knowledge. Even so, meetings
for vitamin B5 continued after November 1997 and
indeed on 17 November representatives of Roche visited
the new executive
Daiichi
vice-president and head of vitamins marketing from 1
January 1998.

in Japan to introduce

(327) On or about 16 December 1997 the parties met in
Basel to produce the budget for the following year. It
was not until 16 April 1998 on the occasion of a global
operational meeting in Japan that Roche’s head of
vitamins marketing informed Daiichi that it should no
longer exchange volume/price data by telephone with a
lower level commercial manager. In future Roche’s head
of vitamins marketing would make the exchanges in
person.

(328) Meetings continued through 1998, with details of sales
volume and price information being exchanged at
quarterly intervals and person to person. A budget for
1999 was prepared. The last exchange of sales volumes
took place in Tokyo on 12 February 1999, in a meeting
between Roche and Daiichi. The collusion only ended
then
that
the participants had
prosecutions were imminent
in the United States of
America.

because

learned

(330) As with several other vitamin products,

the starting
point of the cartel arrangements in vitamin B6 can be
taken as the visit of senior Roche executives to Tokyo
on 30 and 31 January 1991. A meeting between Roche,
the
Takeda and Daiichi was held at
purpose of reaching agreement on vitamin B6. Takeda
had already been involved in (cid:151) not entirely conclusive
(cid:151) discussions with Roche on vitamin C since April
the price of
1990. As a backdrop to this meeting,
vitamin B6 had declined by about 15 to 20 % during
1989 to 1990 (21).

this time for

(331) The three producers of vitamin B6 agreed on the basis
the division of
the
of
worldwide market
the total worldwide
market minus the sales made by Chinese producers,
with quotas for each region.

their achieved 1990 sales
i.e.

(cid:145)available(cid:146)

(332) During 1991 vitamin B6 was in short supply as BASF
and Merck had both withdrawn from the market.
Daiichi had temporarily ceased production in August
1991 as it was closing an old plant and the new factory
was not coming into operation until March 1992.

1.4.5.2. Target and minimum prices

(333) As with the other vitamin products, the price increases
for B6 were achieved using (cid:145)list(cid:146) and (cid:145)minimum(cid:146) prices.
The Commission has obtained from Takeda a table
showing the development of
for several
vitamins,
including vitamin B6 (United States of
America, Europe and (cid:145)overseas(cid:146)):

the prices

October 1991

1 April 1992

1 July 1992

1 April 1993

(in DEM)

85

88

90

95 (85 Lowest)

(334) Takeda’s note of the meeting with Roche in Basel on
13 April 1992 covering the whole of their common
range of vitamins states that the DEM 90 from 1 July
list price was
1992 was
DEM 95.

the lowest price:

in fact

(335) An internal note of Daiichi of 1 September 1992 shows
a price of DEM 90 for vitamin B6, with the

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hand-written annotation (cid:145)85(cid:151)90 R(cid:146) and (cid:145)80(cid:151)85 DPE(cid:146)
is Daiichi Pharmaceutical
((cid:145)R(cid:146)
Europe).

is Roche and (cid:145)DPE(cid:146)

(341)

1.4.5.3. Cartel meetings

(336) According to Roche, the parties met bilaterally about
twice a year either in Tokyo, Basel or in the vicinity of
the latter,
i.e. Roche met separately with Takeda and
Daiichi. Daiichi and Takeda were also in regular bilateral
contact, although Daiichi claims these contacts were
mainly concerned with inter-company sales of calpan.
The reason for the adoption of this artifice was the
unwillingness of the Japanese producers to take part in
meetings with more than one competitor at a time.

(342)

In a (cid:145)European(cid:146) meeting on 25 May 1993 between
Takeda and representatives of Roche, the participants
discussed Daiichi’s relations with them and noted that
its policy, at least for B6, was not to participate in
meetings and to sell
its production (cid:145)irrespective of
market scale(cid:146). Roche and Takeda agreed to give priority
to maintaining price levels. Roche had taken the line
that sales quantities would have to be decreased in
accordance with the size of
the market, but Takeda
believed prices could be maintained even with an
increase in volume.

In 1993 all three producers (Roche, Takeda and Daiichi)
lost a substantial amount of market share to the Chinese
producers, who were
below
production cost.

reported

selling

as

(337) The dates and venues of

the meetings have been
identified by Roche. As with other vitamin products, the
cartel meetings were held at both the (cid:145)top(cid:146) and
(cid:145)operational(cid:146)
the
Takeda
Commission with copies and notes of several meetings
which it had with Roche, usually covering their
common range of vitamins, and including vitamin B6.

provided

levels.

has

1.4.5.4. Operation of the cartel (1991 to 1994)

(338)

(339)

(cid:145)we can continue increasing the price(cid:146).

In the meeting of 13 April 1992 held in Basel
the
participants noted the (cid:145)dramatic(cid:146) increase in the price of
supply and
vitamin B6 owing to the shortage of
concluded:
In
fact, as Daiichi points out, the price in Europe rose
from DEM 51/kg in the first quarter of 1991 to almost
DEM 80/kg a year later. In Europe a new list price of
for B6 was to be
DEM 95 (lowest price DEM 90)
introduced with effect from 1 July 1992. The new price
was supposed to continue to apply in 1993.

In the meeting between Takeda and Roche in Tokyo on
17 November 1992 the B6 quotas for 1993 could not
be decided. Takeda noted that Roche was trying to stop
it from increasing its sales in 1993 and demanded to
know by how much its sales would grow; Takeda gave
a non-committal reply. On pricing, Roche wanted to
keep the current (DEM 90) price in Europe, this was
said to have been agreed by Daiichi as well. Roche was
to announce new prices in February 1993 and Takeda
was expected to follow (22).

(340) The (cid:145)Far East(cid:146) meeting held on 21 April 1993 was
concerned with maintaining the price level in Europe;
the allocation of quotas was
to depend upon an
assessment of the feasible demand. Roche suggested a
three-party meeting,
i.e. to include Daiichi. It appears
from a Takeda note of a communication with a
representative of Roche, that Daiichi had demurred.

(343)

Indeed, during 1993 Takeda and Roche also identified
Daiichi as selling below their prices and determined they
would match its prices, but not those of the Chinese
producers.

(344) After the second quarter of 1993, the price of vitamin
B6 fell sharply. Daiichi attributes the price fall and
subsequent low level of price to (a) the higher volume
of Chinese production and sales; (b) a substantial (28 %)
price decrease by Roche in July 1994 to match Chinese
prices.

(345) On 20 July 1993 Takeda and Roche discussed the
situation in vitamin B6 in a meeting in Tokyo. Takeda
reported that Daiichi was now aiming for a cheaper
price and an increase in quantity.

(346) Roche said it

(cid:145)would like to conduct a three party
meeting including Daiichi, but this was denied by both
T(akeda) and Daiichi(cid:146). Takeda’s reaction was that (cid:145)We
would like R to convince Daiichi(cid:146) (23).

(347)

In their meeting in Basel on 9 February 1994 Takeda
and Roche agreed to observe the market situation with
the Chinese in the first half of the year and decide on
their policy after reviewing the January to June results.
This was the last documented meeting between Takeda
and Roche for vitamin B6.

(348) Roche says that by the first half of 1994 the parties
recognised that
the vitamin B6 agreement was no
longer viable owing to the Chinese imports and decided
to end the agreement.

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(349) The last known meetings between Roche and its
Japanese competitors for vitamin B6 took place in
Tokyo on 10 June 1994 (Takeda) and 15 June (Daiichi).

specifically the meeting between that company and
Takeda (see recital 244).

the Japanese producers

(350) After the B6 agreement ended, Roche states that it still
separately in meetings
course of which
for this product were

met
covering other vitamins
(cid:145)information on price trends(cid:146)
exchanged.

in the

(351) For the second quarter of 1994, Roche had amended its
price lists to show a (cid:145)lowest(cid:146) price of 75 DEM/kg
(against the target of DEM 95); for the third quarter the
prices were revised downward again (target DEM 65;
lowest DEM 53).

(355) At that meeting, Roche put forward a plan for sales
quotas and minimum selling prices in folic acid and
asked Takeda to coordinate with Kongo and Yodogawa,
the predecessor of Sumika. According to Takeda, the
Japanese producers
suggestion
because of its market power.

acceded to Roche’s

(356) Roche claims that it was Takeda which made the first
approach (cid:145)with a view to exchanging information(cid:146), that
this was
there were only two
meetings and that any quota arrangements soon became
(cid:145)obsolete(cid:146).

in late 1992,

that

(352) Daiichi

for

its part does not deny participation in
cooperation amongst the producers of vitamin B6 in the
period 1991 to mid-1994.

(353) The development of the average price level of vitamin

B6 is shown in Table VII in the Annex.

1.4.6. FOLIC ACID

1.4.6.1. The origin and basic scheme of the cartel

(354) The cartel arrangements in folic acid began, as did those
in several other products, with the visit of senior Roche
to Tokyo in January 1991 and more
executives

(357) As with all other vitamins, the basis of the collusive
arrangements for folic acid was the establishment of a
quota scheme. The fundamental principle of the quota
allocation scheme was the division of the world market
between Roche on the one hand and the three Japanese
producers on the other; on the basis of achieved 1990
results, Roche was given 42 %, the Japanese 58 %. The
Japanese
division amongst
themselves of their 58 % quota on the basis of their
respective 1990 achieved sales performance. The annual
quotas (by region) in volume terms had to maintain the
agreed 42:58 division overall, while allowing for natural
growth rate.

producers

agreed

the

(358) For 1991 the agreed tonnage allocation was as follows:

USA

Europe

Overseas

Japan

Total

Roche

Takeda

Kongo

Sumitomo

(in tonnes)

30,0

46,0

44,0

2,2

122,2

26,2

24,3

14,5

2,5

67,5

18,6

10,2

11,1

3,5

43,3

21,1

24,7

9,8

0,5

56,1

(359) Results were to be monitored on a quarterly basis against target quotas; if necessary, the producers
could operate compensation arrangements. The usual system of agreed list and minimum prices
was also to apply to folic acid.

1.4.6.2. Volume control and monitoring

(360) Takeda has provided comprehensive spreadsheets and tables showing how the sales quotas were
calculated for each year and how actual sales ((cid:145)result(cid:146)) were compared with quota ((cid:145)allocation(cid:146)).

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(361) The following are typical and can be taken as illustrating the operation of the scheme:

(cid:151) the monitoring on a quarterly basis of performance against allocation, on the whole the

producers were on target at the end of the year,

(cid:151) a table dated 20 November 1992, shows the scheme according to which the provisional
allocations for 1993 were determined. For each of the four regions, the total demand for 1993
is estimated and the 1992 allocation of each producer adjusted to take account of forecast
market growth in order to maintain the agreed 42:58 proportion,

(cid:151) a document headed (cid:145)Market and competition monitoring(cid:146) and dated 24 June 1994 compares

forecast and achieved sales of each producer for the first quarter of 1994,

(cid:151) a table headed (cid:145)94 allocation(cid:146) shows the historical development of the allocations for each year
1991 to 1993 and compares these with 1994,
total available market excluding Chinese
producers is 275 tonnes: in accordance with the agreed proportions, Roche is to have 115
tonnes and the Japanese producers 160,

(cid:151) the breakdown by region of the 1994 plan,

(cid:151) a table dated 30 January 1995 giving the annual results of each producer for 1991 to 1993

(the 1994 figures are left blank).

1.4.6.3. List and minimum prices

(362)

In the autumn of each year, the minimum sales price was fixed in DEM for the European market
and in USD for the other regions. A minimum price was set for each country using the appropriate
exchange rate.

(363) Takeda has produced a price schedule showing the (cid:145)list(cid:146) and (cid:145)lowest(cid:146) prices for folic acid in each
region (United States of America, Canada, Europe, overseas) from 1991 to 1994. For Europe the
agreed prices were:

(in DEM)

1.9.1991

1.4.1992

1.10.1992

1.4.1993

1.4.1994

160

List

Lowest

List

Lowest

List

Lowest

List

Lowest

200

190

Japan: 200

190(cid:151)195

Roche: 215

205

200

225

195

220

200

225

195

220

The Japanese producers were permitted to sell at the old
(i.e. lower) price from October 1992 onwards.

1.4.6.4. The operation of the cartel (1991 to 1994)

folic acid was the subject of a separate
of vitamins,
meeting
in which representatives of Kongo and
Yodogawa (later Sumika (24)) also took part at least on
several occasions. At the meetings which were held in
Europe,
Japanese
producers.

represented

Takeda

other

the

(364) Cartel meetings between Takeda and Roche were held
on a quarterly basis. When Roche representatives visited
Japan for meetings with Takeda on the B-complex range

(365) The coordination between the Japanese producers prior
to Takeda’s quarterly meetings with Roche took place in
the context of a group known as (cid:145)Yosankai(cid:146) ((cid:145)folic acid
Group(cid:146)), which had originally been a trade grouping

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organised
International Trade and Industry.

by MITI,

the

Japanese Ministry

of

Roche had kept the promise it had made when it set up
its own folic acid production facility to double world
demand for folic acid, but Takeda had also worked hard
at creating new sales routes.

(366) Takeda informed Kongo and Yogodawa (later Sumika)
of Roche’s wishes and proposals and sales results were
collated. Takeda acted as the agent of the other two
Japanese producers in the negotiations with Roche.

(367)

In the regular meetings between Takeda and Roche, the
sales results of the four companies in folic acid were
examined on the basis of reports submitted by them. In
the event that one or other had exceeded the quota
allocations, adjustments would be made to balance the
excess sales.

(368)

In the first documented meeting, in Basel on 13 April
low
1992, Takeda reported that while there were still
price offers in the market from traders, it was limiting
the price up. Roche was warned by
supply to get
low prices;
Takeda not
its
selling folic acid
that Roche was
information was
(cid:145)straight(cid:146) at the agreed DEM 190/kg but including it in
pre-mix at
the
Japanese did not sell pre-mixes.

the equivalent of only DEM 150;

to offer pre-mixes at

(369) The Tokyo meeting on 17 November 1992 was
attended by representatives of Sumika and Kongo. This
the Japanese producers
time Roche complained that
were selling below list price; (cid:145)please correct this quickly(cid:146).
Takeda defended the Japanese producers by reference to
Roche’s sales of pre-mix: Roche might well offer the
straight product at list price, and so turn away business,
but it was not in good faith as most of its sales of folic
acid were in pre-mixes and it was covering itself by
selling pre-mix including folic acid at a cheap price.

(370) According to Takeda,

it suited Roche to push the
Japanese producers to keep high the folic acid price
they charged to the independent pre-mixers (cid:151) who
were competitors of Roche in this product (cid:151) as it put
them in a price squeeze: Roche could undercut them by
selling its own pre-mix at artificially low prices. The
upshot was that Roche agreed to raise the price of
pre-mix and the Japanese promised to bring their prices
for folic acid up to list price as soon as possible.

(372)

In the folic acid meeting in Japan in February 1993
attended by all the Japanese producers and Roche, there
the precise division
were intensive discussions over
among the regions of the 1993 allocations, these had
already been agreed, based on a total market of 320
tonnes, but Takeda and Kongo wanted some revisions.

(373) Finally Roche’s regional allocations were left unchanged,
as were Sumika’s, while for Takeda 2 tonnes were
reassigned between the USA and the Community, and
Kongo’s volumes were totally rearranged mainly to give
it more sales in Europe.

(374) Again Roche complained about pricing by the Japanese
producers: they were selling in Europe at DEM 169 to
DEM 178, far below the agreed DEM 195, while its
regular prices were DEM 205 and list was DEM 215.

(375) At the time the producers were planning a price rise for
all vitamins
for 1 April 1993. Roche intended if
conditions were right, to include folic acid and put the
list price up from DEM 215/kg to DEM 225/kg.

(376) The agreed minimum price had not been respected in
any region, much to Roche’s chagrin; it claimed that at
each meeting the Japanese always promised (cid:145)we will try(cid:146)
without following up seriously. They had (said Roche)
to decide on their April pricing by the end of February.

(377) By the next meeting in Zurich on 25 May 1993 Takeda
reported that prices were rising. It was expected that by
the beginning of the next year the price would go up by
7 %. The Japanese were striving to achieve the list prices
and would agree to another increase in January 1994,
but
in
October/November because of the need to keep a close
watch on market trends.

discussions would

needed

further

be

(371) The new quotas were fixed for 1993 on the basis of an
estimated total market of 320 tonnes, 20 tonnes more
than 1992. However,
to be
reviewed the following year. Takeda considered that
(cid:145)sales quota should not be fixed without sales effort(cid:146).

the allocations were

(378)

In their (cid:145)Yosankai(cid:146) meeting of 24 September 1993 the
Japanese producers reviewed the different markets and
concluded that in Europe it was difficult to increase the

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sales price and however much they wanted to achieve
the DEM 195 minimum, actual prices were more like
DEM 180 to DEM 185. They also agreed that it was
necessary to modify the 320 tonnes of sales quota.

again from mid-1993 to 1995, the companies disclosed
to each other their export sales at the request of Takeda.

(379) The influx of inexpensive Chinese folic acid onto the
world market,
including Europe, was identified as the
cause for the difficulties in getting up the price and
achieving quotas.

(380) The 1993 achieved results indeed proved to be well
short of expected demand and the agreed volume
allocations; in Europe total sales were about 80 tonnes
as against
the 110,6 tonne allocation for the four
producers.

(381) For 1994, the volume quotas had to be scaled back in
line with an anticipated demand of 275 tonnes (Europe,
96,3). Results
showed a
significant shortfall of some 50 tonnes. According to
Takeda, the sales price had collapsed in late 1993 owing
to the appearance of a vast quantity of Chinese material.

year however

that

for

(382) Takeda states that in the meeting in Tokyo with Roche
on 10 June 1994, its president of the vitamins and fine
chemicals division, announced to his counterparts at
Roche that the agreement was (cid:145)no longer in effect(cid:146). This
is the last known meeting between Roche and Takeda in
relation to folic acid.

(383)

described

certain of

folic acid at

facts
Sumika

the
However,
it

In its reply to the Statement of Objections, Sumika
contests
the
by
Commission.
simultaneously
acknowledges that
is unable to either confirm or
refute most of these facts, since the individuals in charge
time can no longer be
of
contacted by Sumika. Sumika points at some factual
(cid:145)errors(cid:146) which, according to it, would cast doubt on the
reliability of at least some of Takeda’s evidence. This
individuals reported to
concerns mainly the name of
have attended certain meetings and the nature of the
discussion at certain meetings.

the relevant

(384) Nevertheless Sumika recognises that

it attended the
meeting of 17 November 1992 and the meeting of
February 1993 in which Roche took part.
It also
acknowledges
it participated in the Yosankai
meetings.

that

(385) As far as the period from 1991 to 1993 is concerned,
Sumika recognises that (cid:145)Takeda requested Sumika and
Kongo to identify their exports in the customs clearance
statistics
issued
periodically by the Japanese Government and obtained
by Takeda(cid:146). Sumika says it is unable to provide any
information regarding the year 1993 but confirms that

contained

statistics

in the

trade

(386) Sumika contests

the Commission’s conclusion that
Takeda acted as an (cid:145)agent(cid:146) of the two other Japanese
companies in negotiations with Roche. However, this is
perfectly consistent with the facts as they are described
by both Takeda and Roche, together with the fact that
carefully
the breakdown of
calculated during the Yosankai meetings.

exports was

Japanese

(387) The Commission concludes that

the arguments put
forward by Sumika to contest the facts are outweighed
by those recognised by Sumika itself and by the detailed
evidence provided by Roche
and Takeda. These
arguments must therefore be dismissed.

1.4.7. VITAMIN C (ASCORBIC ACID)

1.4.7.1. The origin of the cartel

(388) The vitamin C cartel was instituted during 1990 to
1991, supposedly following a fall
in prices of some
10 % in a year. On 7 April 1990 the head of vitamins
marketing at Roche, met his counterpart from Takeda in
top-level meeting between the two
Basel. Another
leading producers was held on 4 September 1990 in
Zurich.

(389)

in
In January 1991 Roche, BASF and Merck met
Switzerland, at the lower (cid:145)manager(cid:146)
in order to
prepare for the visit to Tokyo of Roche and BASF senior
executives which was scheduled for 30 and 31 January.

level

(390) On 30 and 31 January 1991 Roche employees met
this meeting
their counterparts at Takeda in Tokyo;
occurred during the visit to Japan of senior executives
of Roche (and BASF) who met a series of
Japanese
vitamin producers in order to secure their definitive
in various products,
entry to cartel arrangements
including vitamins E, B1, B6 and C.

(391) There was a further (cid:145)top-level(cid:146) meeting in vitamin C
between Roche and Takeda on 10 April 1991 and by
May
the
already
(cid:145)operational(cid:146) level (see recital 420), so the detailed terms
of the agreement must have been settled by the latest at
some time in the first quarter of 1991.

cartel was

functioning

the

at

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1.4.7.2. The basic scheme of the cartel

(392) The accepted principle on which the cartel in vitamin C
was based was that the existing worldwide market share
of the four producers should be stabilised.

(393) To set

the participants

the quotas themselves,

first
determined the total market on the basis of their sales
and estimated sales by the Chinese and East Europeans
producers of vitamin C. Expected sales by third parties
were deducted,
the market being
defined as the (cid:145)available market(cid:146). Volume targets for
each producer for the next period were set on the basis
of their estimate of the (cid:145)available market(cid:146).

the remainder of

(394) The shares of

in 1990 (Roche
the available market
52 %, T 30 %, Merck 10 % and BASF 8 %) formed the
basis for the allocations.

(395) There was to be (cid:145)parallel development of sales and
market share(cid:146), i.e. quotas were adjusted in volume terms
to take account of increased demand while maintaining
the same percentage shares and targets set each year by
region. Sales would be monitored and the necessary
corrections made quarterly.

(396) As with the other vitamin products the producers would
agree target prices and concert their price increases.

(397) The key customers were identified in each major
national market, the idea being to fix a sales plan for
each so that the producers could thus reinforce their
efforts to raise prices in the market (see recitals 402 to
406).

1.4.7.3. Budgets

(398) The quota system was monitored on a running basis in
a manner very similar to that employed for vitamins A
and
and
implementation of (cid:145)budgets(cid:146). The following, from 1993
and 1994, can be taken as representative of the budget
system for the whole duration of the cartels:

establishment

involving

and

the

E

(cid:151) a document, headed (cid:145)Confidential(cid:146), shows (1) the (cid:145)Ist(cid:146)
(meaning achieved sales) for Roche, Takeda, Merck
and BASF in each geographical region for 1992
there are annotations comparing the actual sales
with budget;
for 1993
which was revised on several occasions. The remark
is made in the bottom right-hand corner (cid:145)1993
muss Kompensation f(cid:252)r zuviel von Takeda 1992
erfolgen (burden sharing).(cid:146)
(In 1993 compensation
must result from Takeda’s exceeding quota in 1992
(burden-sharing)),

(2) BASF’s own (cid:145)budget(cid:146)

(cid:151) a further document shows the corrections to the
(cid:145)budget(cid:146) for 1993 resulting from a meeting held on
5 August 1993,

(cid:151) the sales of each producer by country and region
for 1994 were also set out. An (unsuccessful)
attempt seems to have been made to disguise the
real nature of the data shown: the spreadsheet has
four columns marked (cid:145)VIPS(cid:146);
(cid:145)Captive use(cid:146)
and lastly (cid:145)Ist(cid:146). A hand-written annotation however
shows that
the columns are in fact respectively
(cid:145)Roche(cid:146), (cid:145)Tak(cid:146), (cid:145)Merck(cid:146) and (cid:145)BASF(cid:146) data.

(cid:145)Lager(cid:146),

1.4.7.4. Target and minimum prices

(399) At the outset, the prices were fixed on a quarterly basis,
later this exercise was an annual one. The usual system
of
for
Europe, the DEM price was used as the reference.

(cid:145)target(cid:146) and (cid:145)lowest(cid:146) prices was adopted;

(cid:145)list(cid:146),

(400) During the first year (1991) the objective was to bring
the market price from DEM 20/kg up to the (cid:145)list(cid:146) level
of DEM 24/kg by increasing the (cid:145)lowest(cid:146) prices each
quarter.
in each national
currency for 1 March, 1 July and 1 October 1991 (this
latter increase for France and Italy only) and 1 January
1992. In DEM the (cid:145)lowest(cid:146) prices were 20,50, 22 and
24.

(cid:145)Lowest(cid:146) prices were set

(401) The (cid:145)list(cid:146) and (cid:145)lowest(cid:146) prices for vitamin C (and other
vitamins) from 1 January 1992 to 1 April 1994 were as
follows.

(in DEM)

1.1.1992

1.7.1992

1.4.1993

1.4.1994

24

25

List 28

28

Lowest 26

25,50

(cid:151) a document (25) reflecting the allocation of vitamin
C volumes to each company on a regional basis for
1993 and 1994,

1.4.7.5. Customer allocation/key accounts

(cid:151) a note used in the meeting of 25 May 1993; the
handwritten annotations were made by a BASF
employee. The numbers in the box headed (cid:145)2nd
estimation(cid:146)
the proposed new market
division,

set out

(402) To underpin their concerted efforts to raise the price for
vitamin C in each market, the producers conceived a
sophisticated system for handling the (cid:145)key accounts(cid:146), i.e.
important
individual customers for which a detailed
sales plan would be agreed.

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(403) Takeda’s note of a meeting with Roche on 15 and 16
May 1991, sets out clearly how the scheme operated at
the time. For each (cid:145)key customer(cid:146) which is identified, the
producers
annual demand and
reported the price it was currently paying, ascertained
whether this was under a tonnage or fixed-term contract
and agreed who would supply what tonnage in 1991.

estimated its

total

(404)

In some cases a producer asserted the right to supply
exclusively a particular (cid:145)traditional(cid:146) customer; in others,
it demanded that the business of that customer be split
according to a particular set formula.

(405) A refinement was brought

to the key customer
allocation system in May 1993. Takeda’s note of a
meeting of all
four producers in Zurich on 25 May
describes the new practice.

(cid:145)Handling of key clients

1) Allocation of key European clients has been going
on since 1991 but with little success.
In order to
ensure that key clients are better controlled, each
company should take responsibility of one company
(Decision
(R is at present controlling.)
this.
for
chairman)

e.g.

B: Puratos

M: Astra

T: Kabi Pharma

R: Bayer.

(Strong request

immediate implementation to gauge
2) Need for
success.
it
would reply later since this was a European matter
and arrangements would have to be made with
Hamburg (26). However, T essentially agreed with this
approach.

from B) T stated that

3) Since R is extremely busy with its
routine
business, it was very enthusiastic about this proposal.
However, since the proposal would mean that R
would lose control over all key clients, it is difficult
to say how the company really thinks in spite of its
surface approval. It will be necessary to ask R directly
about this matter.(cid:146)

(406) During their technical level meetings the four producers
reported in some considerable detail on their supplies to
each key customer and the prices which had been

offered. One device applied, not always successfully, was
customer (cid:145)protection(cid:146) (27):

(cid:145)ASTRA(S)

R and T support M and B.

M and B divided share

1993

1994

(cid:151)

(cid:151)

(cid:151)

10

4

12

26

R

T

M

B

Total

share unsuccessful

in the case of
Allocation of
Puratos. T in particular saw its share decrease owing
to its observance of prices. B’s
arrangements
particularly poor. T took the 1993 share in the case
of Astra, but achieved zero in 1994.(cid:146)

1.4.7.6. Coca Cola

(407) One of the largest customers worldwide was Coca Cola
whose total requirements of vitamin C are in excess of
1 000 tonnes per year. For this major account, which
treatment, Coca Cola negotiated a
received special
worldwide
the
vitamin producers agreed between themselves how the
business would be shared between them and the prices
quoted. The minute of the bilateral meeting between
Takeda and Roche of 10 November 1993 reads:

supply contract with its

suppliers,

(cid:145)(6) Regarding the pool contract toward Coca Cola for
1994

Situation of first offer

R: USD 15,80

Ex-works

USD 16,20

CIF

To each country
(cid:151)

Japan: JPY 1 890, delivered

Ireland, France: DEM 25,00,
delivered

Turkey: DEM 25,50, delivered

B: USD 16,10

CIF

Europe:

DEM 25,20, delivered

M: USD 16,25

CIF

Europe:

Japan

DEM 25,20, delivered

JPY 1 900, delivered

10.1.2003

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T: USD 16,50 or
JPY 1 850

Ex-Works

USD 17,00

CIF level

Japan:

JPY 1 870, delivered

together(cid:146) to coordinate their position as soon as Coca
Cola started prospecting the suppliers in October. BASF
and Merck agreed immediately to the Roche proposal;
Takeda was non-committal on detail,
it was the first
multilateral meeting on vitamin C which it had attended
(cid:145)in an adversary’s country(cid:146), but promised that (cid:145)we could
extend our cooperation as usual.(cid:146)

The dates for negotiations in Puerto Rico have not
yet been decided.(cid:146)

(411) As late as the last documented meeting for vitamin C in
August 1995 the producers were colluding on their
forthcoming (separate) negotiations with Coca Cola:

(408)

their
In later meetings
respective shares of Coca Cola business in the different
regions:

the producers argued over

(cid:145)(4) 1994 contract with Coca Cola

(cid:151) R was

forced to accept a lower

share. The
question in the United States of America was
solved at the local discussions. Orders received
from Kellogg.

for

the

an offer by

(cid:145)R(oche) stated that for (1996) Coca Cola would ask
each company
end of
October/early November, and each company would
negotiate with Coca Cola in early December in Puerto
Rico. Furthermore, R stated that due to the reduction
the total sales
in demand in Europe and the US,
volume would be less than in previous years.
((cid:133))
Our company (Takeda) stated that in 1996 we should
keep the position that
the Japanese and the US
entities are the main suppliers and that we want to
keep the same level of price as in 1995 although
presently it
to increase the price. Each
country agreed that they would offer a higher price.(cid:146)

is difficult

(cid:151) Europe: demand for supplementation [sic] from B
and M at the meeting between the four parties.

(cid:151) The 9 tons at USD 17,00 CIF intended by T for
Austria would appear to be a penalty placed on R
by Mr. [(cid:133)]. This can’t be helped if Mr. [(cid:133)] is
going to buy from expensive sources.(cid:146)

1.4.7.7. Pfizer contract

(409)

In further discussions on their joint strategy towards
Coca Cola, Roche drew attention to the fact that Merck
(below
and BASF had slightly lowered their prices
Roche’s quota) and obtained a (cid:145)pool contract(cid:146)
for
Europe. BASF defended itself on the ground that it had
been (cid:145)steamrollered(cid:146) by Coca Cola into lowering its
price.

(412) The cartel also discussed the supply contracts which
Roche had with the pharmaceutical company Pfizer.
This contract was renewed every two years. Takeda’s
report of its meeting with Roche in February 1993 read
as follows:

(cid:145)1. Stopping supplies to Pfizer

(cid:145)(cid:151) T said that
the preliminary
they thought
discussions had been successful and supported R (the
Japanese market had developed exactly as T had
hoped). However, as pointed out by B and M,
it
would be a good idea if more time could be spent on
the next occasion considering how to deal with Coca
Cola. They proposed that, on the next occasion,
prices should not be made uniform but should be set
differently for each country so that different prices
could be offered for different markets. If this were not
done, Coca Cola would always attempt to conclude
all its contracts at the lower market price. (The three
parties all seemed to agree on this). On the next
occasion the preliminary meeting will be based on
price offers differing according to region.(cid:146)

(413)

R supplies approx. 2,000 tons to Pfizer. However,
they are unable to control the price properly, so that
they will stop supplies within this FY.

R would like Takeda not
they
contact Takeda. We will let Tokyo know, and T will
also not supply Pfizer.(cid:146)

to supply Pfizer if

It appears that Takeda became anxious for Roche to
cut deliveries
stop supplying
substantially. Takeda’s detailed minute of the bilateral
meeting with Roche on 10 November 1993 in Japan
sets out the discussions on this point:

Pfizer, or

least

at

(410)

In discussions as to Coca Cola’s 1995 requirements,
Roche proposed that the producers should (cid:145)sit down

(cid:145)(4) Supply contract between Pfizer and R

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the end of 1993. However,

R had been telling T that the present contract will be
they
completed at
explained at this time that the contract ended next
year, at the end of 1994. When we questioned the
different explanation from before,
the answer was
that the contract was renewed every 2 years, and that
the end of 1994 was at the end of a contract period.

They mentioned that they had been cutting supplies
since 1993, but did not answer how much they were
supplying and how many tons had been cut.

check regional
all

In addition, regarding their supply regions, they could
supplies because Pfizer was
not
supplying
only
and
documentation on the distribution was on Pfizer’s
reports.(cid:146)

Europe,

over

the

(414) Roche reported later that when the agreement expired
in December 1994,
it would not be renewed. Roche
requested the other producers not to supply; BASF and
Takeda confirmed they had not received any approaches
from Pfizer.

1.4.7.8. Cartel meetings

(415) As with the other vitamins, quarterly meetings were
held for
the purpose of
cartel
the meetings
agreements. From 1991 to May 1993,
usually took place in Basel; participants during this
period were Roche, BASF and Merck. Takeda refused to
attend the multilateral cartel meetings with BASF and
Merck but held (cid:145)one to one(cid:146) meetings with Roche.

implementing the

(416) These quarterly meetings, at which Roche spoke for

Takeda, were concerned with the following:

(cid:151) monitoring of the agreement;

(cid:151) adjustments to bring actual results in line with

targets;

(cid:151) agreement on prices and market shares.

(417) The participating producers and Takeda communicated
their sales to Roche which reported the overall results
per company back to the group.

(418) Roche

representatives usually met

separately with
Takeda, either in Tokyo or in Basel. Roche’s bilateral
meetings with Takeda sometimes covered the range of
vitamins which they produced in common (vitamin B1,
B2, B6, C and folic acid); other cartel meetings were
concerned with vitamin C only.

BASF and Merck: Takeda had however declined (cid:145)due to
our company policy. But if there is an important topic,
like an allocation sales plan, we tentatively join the
meeting. Of course we continue the meeting(s) with R
as (at) present.(cid:146) Takeda started attending multilateral
meetings in May 1993.

1.4.7.9. The operation of the cartel (1991 to 1995)

(420) The first bilateral meeting between Roche and Takeda
for which a detailed record is available was held on 15
and 16 May 1991. Representatives of Takeda met the
Manager responsible for vitamin C at Roche, the two
product managers and area managers for each European
region.

(421) The purpose of the meeting was (cid:145)to discuss ((cid:133)) the
price increasing results in March and April, and the
lowest price for the third quarter, the fourth quarter ’91
and the first quarter ’92 by country with the demand
and share of
four area
managers.(cid:146) Takeda had announced a price increase
effective 1 March.

the big clients with (the)

(422)

In its summary of the outcome of the meeting Takeda
reports that (cid:145)we confirmed the key clients with the ’90
results and ’91 plan with the exceptional contracts
which are still (at) old prices made before 1st of March
’91.(cid:146)

(423) The minimum price for the third quarter was agreed,
but Takeda did not at
the Roche
proposal to fix the European sales quotas for 1991 on a
country-by-country basis.

this stage accept

(424) The meeting had been called by Roche which explained
that while it had been attempting to raise the price level
for the past 4 or 5 years, the present price level of DEM
20,50 was too low. BASF did not (it said) always follow
Roche’s pricing locally; BASF’s top management had
however promised Roche that if it (Roche) found that
BASF’s prices disturbed the market,
it could inform
BASF top management which would then (cid:145)change the
local organisation.(cid:146)

(419)

Indeed, Roche invited Takeda on 13 April 1992 to take
in the quarterly European meetings with itself,
part

(425) Takeda complained that it had announced the new price
level
in Europe from 1 March 1991 but had lost
business to Roche and BASF who had sold below the

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agreed price. If it did not get evidence that the European
producers were following its price in May and June, it
would (cid:145)react(cid:146) against them. Roche sought to defuse the
situation by explaining that no new business had been
accepted below the new price since 1 March; there were
however still outstanding contracts at the old price.

the agreed 1992 sales plan. Takeda argued that it was
unfair that the 1992 results were not reflected in the
1993 quotas: a party which failed to make adequate
efforts to meet its sales quota should (it claimed) have
its
insisted on the
continuation of the basic agreement (see recitals 392 to
397).

share reduced. Roche however

(426) The discussions with the area management of Roche are
reported in minute detail
for each country. Total
demand for 1991 is assessed and the results for the
previous year (1990) exchanged. The key customers in
each market
their
contractual arrangements are discussed individually and
information is exchanged about their precise tonnage
requirements and the prices they are being, or will be,
offered. In some cases specific agreement is made about
dividing their business or increasing the price. For each
national market a (cid:145)sales plan(cid:146) for 1991 is agreed.

allocated,

identified

and

are

substantial

investment

(431) The Chinese manufacturers of vitamin C, which had
made
new production
facilities, began at about this time to make incursions
into the world vitamin C market. Their low prices and
increasing volumes disrupted the cartel arrangements of
the other producers. One short-term solution canvassed
by the cartel was to buy up Chinese products.

in

(427) Takeda’s report of its reaction to the Roche proposal to
fix sales quotas for each national market is revealing of
its ambivalent attitude to the rules of competition and
antitrust law:

(cid:145)His [the area manager of Roche for western Europe]
idea is, it is not enough to exchange the figures of
key clients, but it is necessary to fix the figures ((cid:133))
country by country, in order to attain our policy.

Not only Mr. [(cid:133)] but also Basel people strongly
requested us to fix the figures by country.

(432)

In early 1993, BASF held a meeting at its Ludwigshafen
headquarters with Roche and Merck to consider the
perceived threat
from the Chinese producers. Roche
proposed in this meeting that the European producers
and Takeda should restrict their output and raise prices
in the second, third and last quarters of 1993. Roche
however claims that at this time it was planning to
reduce vitamin C prices by 12 %.

(433) What would appear

to be a detailed note of

this
meeting was supplied by BASF and shows that whatever
Roche now asserts,
(cid:145)target(cid:146) prices for the second, third
and fourth quarters were to be DEM 25, DEM 26 and
DEM 27. Indeed the minutes of Roche’s area managers’
meeting held on 15 to 18 June 1993 describes its (cid:145)firm(cid:146)
pricing policy in vitamin C.

We denied their proposal due to the legal point of
views (sic), but they will propose it again in the next
meeting on 23 May 91.(cid:146)

(434) The other two European producers agreed to Roche’s
proposal on restricting output provided Takeda agreed,
which it did.

(428) Takeda’s report concludes with a list of the minimum
prices agreed in each national currency effective on 1
March, 1 July and 1 October 1991 and 1 January 1992
(see recital 400).

(429) At the beginning of 1993 worldwide sales results for
1992 were exchanged and Takeda was shown to have
exceeded its quota by 4 %. The position was as follows:
Takeda 104 % of quota, Roche 95,6 %, Merck 85,6 %
and BASF 88,5 %.

(430) For 1993,

the producers estimated the total world
market at 43 225 tonnes, to be divided on the basis of

(435) Takeda’s report of 19 April 1993 on Roche’s pricing
policy confirms that Roche had announced its price
increase (list: DEM 28,00/kg) effective on 1 April
through the trade press, although in practice it was
expected to devote a real effort to increasing effective
prices in Europe only from July.

(436) On or about 25 May 1993,

the producers held a
follow-up meeting at Zurich airport which was the first
attended by Takeda. Roche’s
multilateral meeting
proposal for restricting production with a 5 % cut in the
1993 allocations was put to Takeda. Takeda would not
agree to a 5 % cut across the board, arguing instead that
(cid:145)the more rational approach would be to adjust
the
allocation in accordance with rates of achievement in

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different areas(cid:146). Its counter-proposal would have given it
an adjusted quota worldwide of 13 014 tonnes,
compared with its original 13 310 tonne allocation.

(437) A compromise was reached to the effect that the three
European producers should have a quota reduction of
2,5 % and Takeda 2,2 %, with further consultations
probably necessary to determine whether or not further
adjustments were required. BASF has provided its
working papers intended for this meeting showing the
details of
and the
compromise solution.

the proposal

a 5 % cut

for

(438)

It was also at this Zurich meeting that an agreement in
principle was reached on implementing a scheme to
improve the operation of
the customer allocation
system by having each producer take the responsibility
for a particular key customer.

(439) The four producers met again on 5 August 1993 in
BASF’s offices in Frankfurt. Takeda has provided a
detailed contemporaneous memorandum. Following an
exchange of data it was confirmed that the 2,5 % cut
referred to as a (cid:145)voluntary target(cid:146) had more or less been
achieved during the first six months of 1993. Price
increases to DEM 25,00 were being implemented in
Europe.

(440) For the year as a whole, given the unexpected increase
the European producers repeated
in Chinese exports,
to be imposed, a
their proposal
the 5 % cut
for
suggestion opposed by Takeda:
for
the US market
vitamin C was growing fast and it would (Takeda
argued) be absurd to compensate for increased sales in
America by cutting back in other regions.

(441) Roche reiterated the basic principles of the agreement
reached in 1991, BASF’s representative noted them
down. Each company produced its own proposals for a
volume reduction scheme. Takeda’s own proposal for
reduction
volume
other
provoked
participants. Takeda’s notes
(cid:145)proved
it
impossible to reach agreement on this matter(cid:146).

lowest
from the

cuts, awarding itself

opposition

vociferous

state

that

the

(442) According to BASF however,

the

three European
producers presented Takeda with an ultimatum: unless it
agreed to cut back its vitamin C sales,
they would
withdraw from the agreement. (cid:145)Takeda relented and new
lower vitamin C volume allocations were agreed among
the four companies.(cid:146)

(443) Takeda’s minutes of

its working level meeting with
in Tokyo on 10
Roche covering several vitamins
November 1993 confirms that new volume allocations
had been agreed for vitamin C in the August meeting:
sales results for
the four companies in the period
January to September were (cid:145)within the allotment of
73,6 %(cid:146).

(444) However, Takeda returned to its favourite theme that it
was (cid:145)unreasonable to ensure the continuation of 1990
shares without any conditions, and that it was necessary
to consider cuts in allotment for B and M who are
directly influenced by the Chinese products.(cid:146) Roche
replied that if allotment cuts were mentioned to BASF
and Merck they would stop following the scheme and
(cid:145)It is
bring chaos to the market with their low prices:
therefore necessary to continue this basic agreement to
maintain shares. The present
be
maintained because it is now most important to keep
the present prices.(cid:146)

system should

(445) Roche proposed a new scheme for the 1994 volume
allocations, with (cid:145)active(cid:146) and (cid:145)passive(cid:146) quotas for each
region. In the next day’s (cid:145)top management(cid:146) meeting the
quantity allotment
together with tentative
to increase the market price in Europe on
plans
1 January to DEM 25,00, and on 1 April to DEM 26,00,
were agreed.

for 1994,

(446) On 8 February 1994, all

the

four vitamin C producers
agreed in a meeting in Basel to continue in 1994 the
basic agreement to freeze their shares at 1990 levels.
While
stressed the
three European producers
importance of maintaining the 1990 market shares,
Takeda had serious reservations and (by its account)
only compromised in order to ensure BASF and Merck
remained in the
(they had
threatened to walk out unless Takeda agreed to abide by
the market shares fixed in the 1990 agreement).

four-party discussions

(447) After the usual exchange of information on the 1993
results, with each company explaining the reasons for
any deviation from target, Takeda proposed that the
four producers should purchase Chinese products in
accordance with their shares so as to remove it from
the market. Since there would be implications for the
shares fixed in the 1990 (cid:145)basic agreement(cid:146), which Roche
insisted were immutable,
the Takeda proposal was
rejected. As in previous years, the planning for 1994
therefore excluded Chinese material from the estimate of
total demand. The price policy for Europe was

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confirmed but it was finally decided to go for DEM
25,50 instead of DEM 26,00 on 1 April 1994.

(448) The Chinese producers continued to sell at prices which
threatened the stability of the cartel. According to BASF,
the price for vitamin C had as a result fallen by around
one third by 1995.

forecast (cid:145)available market(cid:146) in Europe of 11 078 tonnes
the estimate had to be revised
for the year 1995,
downward to 9 500 tonnes. Takeda notes
(cid:145)(cid:133) a
reduction in sales quotas for the companies had been
set at the August 11 regional meeting, which our sales
company attended, and the reduced sales amounts were
already agreed upon by the four companies(cid:146).

(449) By

sending

regularly

remaining

time, Takeda was

to the European meetings
as

a
this
although
representative
ostensibly
the
to
permanence of its participation. BASF states that the
quarterly European meetings were marked by increasing
tensions between Roche and Takeda; Roche accused the
Japanese producer of cheating by misstating its real
sales.

non-committal

(450)

In March 1995 the regional quotas for each producer
for 1995 were confirmed as (cid:145)firm and final(cid:146).

(451) Roche claims it announced in mid-1995 that it was
ending the vitamin C agreements. The last meeting was
apparently held in Hong Kong in August of that year.
However, there is no indication in Takeda’s full notes of
this global meeting, held on 24 August, that the four
producers had in fact decided to terminate
their
arrangements. Nevertheless, business was carried on as
usual, including making forecasts for the period July to
December 1995 and the setting sales quotas and
minimum prices for each region.

(455) Contrary to BASF’s claims that by then prices had fallen
to only DEM 15/kg, the Takeda note of the 24 August
meeting shows that the minimum sales price agreed by
the four producers at the European Regional meeting of
DEM 24/kg to DEM 23,50/kg were confirmed. Indeed,
Roche volunteered the forecast that the European price
would remain at DEM 24/kg.

(456)

In a separate bilateral meeting between Takeda and
Roche, Takeda even requested a (cid:145)review and revision(cid:146) of
the agreement, to which Roche responded that (cid:145)there
was no problem with the current system and the two
other companies would not agree to any amendments.(cid:146)

(457) At what precise stage the agreement for vitamin C was
abandoned is not documented, but by mid-1996
Roche’s lowest price had been reduced to around DEM
20/kg (list: DEM 25/kg).

(458) The development of the price level for vitamin C over
the duration of the cartel and after it ended is shown in
Table VIII in the Annex.

(452) They did however identify one disagreeable irritant that
might disturb their arrangements. As a result of a recent
criminal investigation in the United States of America
the four companies agreed in that
involving ADM,
meeting on (cid:145)complete security(cid:146).

1.4.8. VITAMIN D3

for

four

companies

agreed that

the
(cid:145)Also the
time-being, direct contact with the subsidiary (sic) in
the US would be suspended. Any contact would be
made with the headquarters ((cid:133)). This is because
R(oche) USA has
submit
documents in connection with (an investigation into)
citric acid. Also, we are concerned that after the
summer vacation,
take
some action, although currently,
the US situation
does not have any influence on Europe.(cid:146)

the EU Commission might

requested

been

to

(453) As usual, the producers reviewed their achieved sales
volumes (for the period January to June 1995) and the
total available market (for July to December).

(454)

In Europe total demand had gone down and the influx
of Chinese material had increased rapidly. As against a

1.4.8.1. The origin of the cartel

standpoints.

from opposite

(459) The accounts given by Solvay Pharmaceutical and Roche
view the events surrounding the origin of the cartel
arrangements
Roche
attributes the initiative to Solvay which,
it says, had
already during 1992 initiated (unsuccessful) contacts
with the other producers to interest them in forming a
cartel. Roche claims (cid:151) unlike Solvay (cid:151) to have had no
great desire to put up the price of straight D3; it says its
interest was to keep the D3 price premium in AD3
combinations low so as to boost its sales of the far
more profitable vitamin A in the AD3 compound. (In
reality as early as March 1991 Roche’s policy for
vitamin D3 was expressed as follows: (cid:145)Price targets and
increases to be coordinated with vitamin A (AD3).
Agreed prices to be strictly implemented.(cid:146)) According to

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Roche, Solvay persisted and finally persuaded the others
to agree to meet in early 1994.

it

In the comments

(460) Solvay initially glossed over the issue of which company
initiated the cartel.
submitted
following the Statement of Objections, however, Solvay
states that it was the last D3 producer to be contacted
for the cartel which had been initiated by the vitamin A
producers (Roche, RPAN and BASF). Solvay claims to
have been at risk from its two larger competitors who
both produced A, D3 and other vitamins and could
force it out of the market by depressing the price of D3.
It had decided in 1990 not to re-enter the vitamin A
market and was left with its vitamin D3 manufacturing.
Roche had stopped supplying Solvay with vitamin A in
1991. At about
the same time, BASF which had
previously purchased D3 from Solvay, became an
independent manufacturer in its own right of D3, with
the result that Solvay’s sales went down by 25 %.

(461) Whoever it was that took the initiative, it is common
ground that the three producers began meeting in about
the beginning of 1994 to agree a formal cartel scheme
for vitamin D3.

(cid:151) a document

showing the

comparison between
achieved sales in the first half of 1994 against target
and the performance of each producer expressed as
an index,

(cid:151) a further document showing the achieved volume
figures for 1995 worldwide and in each region
(Europe is further broken down to give separate
figures for France and Germany). As compared with
1994 ((cid:145)Real ’94’(cid:146)) and with the 1996 targets based
on the same overall market size (1 600 tonnes) as
1995. NB:
is Solvay
II
Pharmaceutical and IV is Rh(cid:244)ne-Poulenc (included
under Solvay’s allocation).

is Roche;

is BASF;

III

I

1.4.8.3. Target and minimum prices

(466) For the second quarter of 1994 the producers agreed
for Europe on a (cid:145)list(cid:146) price of DEM 25 and a (cid:145)low (cid:146) of
DEM 23,50. The list price was maintained for 1995 but
the lowest price was raised to DEM 24 effective from
April and set in each national currency (FRF 82; ITL
In
24 500; ESP2 000; GBP 9,80; BEF 495; NLG 27).
August 1997 the producers agreed to raise the list price
by 20 % to DEM 30/kg.

(462) The first meeting, held probably on 11 January 1994 in
Basel, was attended by Roche, BASF, and Solvay. They
focused in this initial meeting on determining total
world demand for vitamin D3 and their individual
shares. A consensus was reached that their respective
shares were Solvay 41 %, Roche 38 % and BASF 21 %.

1.4.8.4. Cartel meetings

(463) The three producers agreed that they should maintain
the status quo with none seeking to gain market share
from the others by price cutting. For 1994 they
estimated the world market for vitamin D3 (feed grade)
at some 1 450 TU, to be divided as follows: Solvay 600
TU; Roche 550; BASF 300. For pharmaceutical grade,
which BASF did not produce, the market was to be split
50:50 between Solvay and Roche. It was also agreed to
set minimum prices and target prices for each region.

1.4.8.2. Volume quotas

(464) The parties established annual volume targets for the
world, Europe and the United States of America based
on their forecast of the total market and maintaining
their respective shares.

(465) The operation of the system can be seen from:

(467) The meetings between the three producers took place
twice a year and were organised in turn by each
member in different countries. Generally there was a
meeting in February and another in September.

(468) Rh(cid:244)ne-Poulenc did not attend the meetings but was
informed about them in advance, provided relevant data
beforehand to Solvay and was informed afterwards by
telephone of the outcome.

(469) Each meeting followed the same structure. The organiser
started by disclosing its sales figures (in volume) for the
previous six or
twelve months as appropriate. The
others then shared their sales figures.

(470) Estimations were made and agreed of the future size of
the market. On the basis of this overview of the market,
the participants could monitor performance against
target and allocate the volume quotas for the next
period, generally in accordance with their agreed market
shares. List prices and minimum prices were also set in
these meetings.

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1.4.8.5. The operation of the cartel (1994 to 1998)

(471) The documentation obtained from Solvay provides a
comprehensive picture of how the cartel developed over
the years.

(472)

In their first meeting in January 1994, the producers set
(cid:145)list(cid:146) and (cid:145)lowest(cid:146) prices for each region for the second
quarter of 1994 at DEM 25 and DEM 23,50
respectively. There is a hand-written comment in the
corner of Solvay’s note (cid:145)BASF goes first with price
announcement(cid:146).

announced by Solvay in September for implementation
on 1 October. The increase was duly announced by
Solvay in (cid:145)Ern(cid:228)hrungsdienst(cid:146) of 23 August 1997: the
price of the reference product Duphasol D3 500 was to
rise from DEM 25/kg to DEM 30/kg.

(480)

that as a result of

It was during this meeting that Roche informed the
other participants
the antitrust
in the United States of America a
investigations
management instruction had been given to cease the
regular meetings; nevertheless contacts continued on a
bilateral basis, with Solvay collecting figures from BASF
on 4 February 1998 and presenting the collated results
to Roche in April and to BASF on 25 June 1998.

(473) BASF’s

to

its

pricing

national

guidelines

sales
subsidiaries issued on 9 March 1994 for the second
quarter instruct them not to undercut the lower limit of
DEM 23,50 after 1 April. However Solvay’s marketing
of
the product exclusively via agents was constantly
identified as a hindrance to getting price increases
through.

(474) On 9 February 1995 the producers exchanged volume
figures for the previous year. The feed grade market for
1995 was estimated at 1 490 TU to be divided between
them as follows: Roche 565; BASF 325 and Solvay 600.

(475) Prices were set for the different Community national
markets amongst others. For Germany, the list price was
confirmed as DEM 25,00 with a DEM 24,00 minimum
as from 1 April 1995, confirmed by BASF’s pricing
instructions for the second quarter of 1995.

(476) On 20 March 1996 the producers exchanged their
figures for 1995. The estimate for the 1996 market was
set at the level realised in 1995 (1 600 TU). For 1996,
targets were set (World: Roche 600, BASF 350, Solvay
(including Rh(cid:244)ne-Poulenc) 650;
for western Europe:
150, 100, and 240 respectively).

(477) At the trilateral meeting in 14 February 1997 it was
ascertained that realised world sales in feed grade (1 541
TU) in 1996 had fallen below the estimated demand for
that year of 1 600 TU.

informed by Roche that

(478) On 10 July 1997 in a bilateral meeting in Basel Solvay
was
the latter would be
prepared to approve a price increase of 20 %, to be (cid:145)led(cid:146)
by Solvay in Europe: Roche would (cid:145)see to it(cid:146) that BASF
and Rh(cid:244)ne-Poulenc would follow the price increase for
D3 and the AD3 combination product.

(479) The trilateral meeting of 2 August 1997 involved
discussions on this price increase, which was to be

1.4.8.6. Involvement of Rh(cid:244)ne-Poulenc

(481) Although Rh(cid:244)ne-Poulenc did not itself produce D3, as
one of the principal suppliers of the compound product
AD3, it had a particular interest in the outcome of the
discussions.

(482) According to Solvay, meetings with Rh(cid:244)ne-Poulenc took
place about twice a year. Solvay gathered the figures of
Rh(cid:244)ne-Poulenc before the tripartite meetings with BASF
and Roche, and informed Rh(cid:244)ne-Poulenc about
the
outcome.

(483) Rh(cid:244)ne-Poulenc was allocated a quota,

included in the
Solvay allocation and shown in the quota tables either
as (cid:145)IV(cid:146) or (cid:145)IIIa(cid:146). Rh(cid:244)ne-Poulenc must have been aware of
the allocation (it gave its figures to Solvay) and as
Solvay points out
(cid:145)it had an active role towards SP
regarding how to deal with H-LR and BASF(cid:146).

1.4.9. VITAMIN H (BIOTIN)

1.4.9.1. The origin and basic scheme of the cartel

(484) By the early 1990s the price of biotin was declining.
Representatives of Roche had been telling Japanese
companies during their regular visits to Japan that they
should cooperate with Roche and avoid unnecessary
competition.

(485) During their individual visits, on technical matters, to
Tanabe the Roche executives had started tentatively to
explore the topic of
target prices for biotin. Tanabe
refers also to later meetings in March and May 1991 in
which Roche (cid:145)tried to introduce target prices(cid:146).

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(486)

solicitations were

In Europe Roche’s
expressed in
blunter terms: according to Merck, Roche insisted that it
in which
(Merck) should come to a (cid:145)biotin meeting(cid:146),
Merck should represent BASF since the latter
took
almost all Merck’s production under
coproduction
arrangements; as a non-producer of biotin, BASF was
not itself invited.

(487) The

first known multilateral meeting of

five
producers was held in Lugano, Switzerland, on 14
October 1991 at the initiative of Roche who chaired the
proceedings (28). The participants were representatives
from: Roche, Lonza, Merck, Sumitomo and Tanabe.

the

(488) The Roche

by

began

asking

representative

the
participants to disclose the quantities of biotin each had
sold in a reference period (probably the last year)
in
the world(cid:146). The
North America, Europe and (cid:145)rest of
figures, which were
orally, were
expressed in terms of (cid:145)pure(cid:146) biotin; each producer thus
into the
had to convert
equivalent of 100 % product.

its sales of diluted product

communicated

(489) The exchange of sales data was made with a view to
agreement to (cid:145)freeze(cid:146) the worldwide shares for the five

Producer

Roche

Sumitomo

Tanabe

Merck incl. BASF

Lonza

Il Sung

Ist

1990

10,8

4,52

4,05

2,05

1,08

1,23

Regionale Aufteilung [Regional
Allocation]

23,82

(493) The scheme is predicated on estimated market growth
in the United States of America of 4 % to 5 %, Europe
2 % and Asia 7 %. At the bottom left hand corner is the
handwritten annotation:

(cid:145)Basisjahr (base year) 90 + 10 % = 92

producers in the (cid:145)available(cid:146) market, total world sales less
supplies by Il Sung, a Korean producer.

(490) According to Roche the (cid:145)significant degree of distrust(cid:146)
prevailing between the participants prevented their
agreeing a mechanism for fixing target quantities for
consecutive quarterly and half-yearly periods. Tanabe
confirms
the participants did not agree on a
mechanism for fixing target quantities on an ongoing
basis. Merck however says that on the basis of Roche’s
the sales
forecast of
volumes of each producer were in fact agreed. This is
confirmed by the documentary evidence.

the expected market

for 1992,

that

fully informed by Merck and Roche of

(491) BASF, although it did not attend the biotin meetings,
the
was
agreement
reached between the five producers and
carefully committed the details to paper. However, not
all
indirect
aware
involvement.

participants were

BASF’s

of

(492) A table, headed (cid:145)biotin (100 %) Market

shares of
competition(cid:146), sets out the basis of the cartel scheme, the
italicised columns are handwritten annotations in the
original:

Ist

T

11,3

4,3

5,0

2,65 effective

1,2

1,3

25,5

Guideline

1992

11,67

4,83

4,80

2,4

1,19

1,35

%

44,3

17,0

19,6

9,4

4,7

5,0

26,24

100,0

cartel: out of 2 500 kg BASF is to have 2 200, Merck
300; in Europe the split is to be BASF 1 400 and Merck
160.

Budget 92 gemacht; Wirkung auf Japan (Budget 92
done; impact on Japan)

1.4.9.2. List and minimum prices

MERCK + BASF will nicht zur(cid:252)ckfallen, wenn andere
steigen (fair burden sharing) (MERCK and BASF will
not fall back if others increase).(cid:146)

(495)

(494) The notes also contain detailed calculations on the
division between Merck and BASF of the 2 400 kg (or
2 500) quota nominally attributed to Merck under the

In the first meeting, the parties also agreed a list and
minimum price which for Europe was fixed in DEM/kg
for 2 % animal feed grade biotin and for 100 % pure
food grade biotin. As can be seen in BASF’s notes the
plan was to raise the price in two steps, on 1 January
and 1 April 1992. For the 2 % feed grade solution, the
delivered prices were:

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Official Journal of the European Communities

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(in DEM/kg)

(501)

List

Lowest

1.1.1992

1.4.1992

140

135

150

145

In addition to the (cid:145)official(cid:146) multilateral meetings,
the
biotin market was the subject of casual discussions on
the occasion or on the margins of bilateral meetings in
the normal course of business between Roche, Lonza,
Sumitomo and Tanabe.

The prices for the 100 % pharma grade were:

(in DEM/kg)

1.1.1992

1.4.1992

12,50

10,00

13,00

11,00

List

Lowest

(confirmed
instructions to apply these price parameters).

from documents

by Merck

giving

(496) Both before

and after

this meeting,

the Merck
representative was in contact with the sales managers at
BASF who were responsible for biotin in order to obtain
the relevant market data and inform them of the results
of the discussions.

1.4.9.3. Cartel meetings

(502) Roche has identified three top-level meetings in addition
to the initial (cid:145)kick-off(cid:146) meeting in Lugano (7 April 1992
in Zurich; 25 August 1992 in Nara, Japan and early (in
fact 25 January) 1993 in Geneva), but it says there were
several more meetings which followed the same pattern
and involved the same participants.

(503) Tanabe described these meetings and two further ones:
on 26 October 1993 in Osaka,
Japan, and 19 April
1994 in Tokyo, the latter being the last multilateral
session which it can recollect. Merck identified a further
meeting in Zurich in 1993.

(504) Sumitomo in effect denies any conduct on the part of
its employees which might constitute a violation of
Article 81;
it admits attending only two plenary
meetings with its competitors (Nara on 25 August 1992
and Geneva on 25 January 1993) and, with regard to
the Geneva meeting, states that its representative was
(cid:145)caught by surprise(cid:146) at
the time by the presence of
others besides Roche, with whom an innocuous bilateral
business meeting had been scheduled. Sumitomo claims
that its representative found these unexpected meetings
(cid:145)unpleasant(cid:146) and he insisted the topic was inappropriate.

(497) The subsequent meetings were held about twice a year
to exchange sales data and discuss the pricing of biotin.
There was no sophisticated market monitoring and
reporting system such as was used for other vitamins.

(505) Sumitomo is however identified by the other producers
(Roche; Tanabe; Merck) as attending the meetings
regularly, and indeed Tanabe says that it always shared
the costs of meetings in Japan with Sumitomo.

(498) The normal procedure was for the representative from
Roche to telephone the other producers in advance to
summon them to the next meeting: during these
calls he obtained the other producers’
telephone
(cid:145)pure(cid:146) biotin during the
achieved sales in terms of
previous three- (or six-) month period.

(499) According

the

several of

to Roche,

subsequent
multilateral meetings involved (cid:145)top level(cid:146) participation;
from its side, the delegation was led by its head of
vitamins marketing. The holding of these meetings in
locations such as the Baur au Lac Hotel in Zurich and
the President Hotel in Geneva tends to confirm the high
level of management participation.

same pattern as

(500) The meetings as described by Tanabe generally followed
the
(cid:145)kick-off(cid:146) meeting.
the
Complaints were sometimes voiced about the market
behaviour of one or other participant; they took the
form of accusations of selling at low prices or of taking
away this or that customer at a low price.

first

1.4.9.4. Operation of the cartel (1991 to 1994)

(506) The market price of biotin rose somewhat soon after
the first cartel meeting in October 1991 and thereafter
remained relatively stable over the duration of the cartel.

(507) Tanabe’s internal commercial documentation supplied to
the Commission makes frequent reference to the (cid:145)target
price(cid:146) and although for obvious reasons the connection
is not made with any agreement,
it is apparent that
these were the target prices fixed in the cartel meetings.
NB: Tanabe usually quotes the targets for the 2 % feed
grade solution in DEM or FRF per kilogram.

(508) From about the beginning of 1993 (29), the targets were
set on a country-by-country basis in local currencies
instead of for Europe as a whole. The main reason for

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the change was to avoid the uncertainty caused by
exchange rate fluctuations when the price was set in
DEM only.

no longer ready to take part in the meetings; Lonza
made the same announcement.

(509) According to BASF’s pricing instructions to the national
sales offices of 25 June 1993 the price for biotin had
stabilised and even risen in the second quarter of 1994:
a further
expected with Roche
supposedly applying a policy of (cid:145)Price before tonnage(cid:146).

improvement was

(510) By the middle of 1994 the market price was however
starting to decline, in part owing to Korean imports (30).
According to Tanabe’s account of the meetings, both it
and Sumitomo were being taken to task in meetings by
Roche for not complying with the targets.

(516) As to the meetings between Roche and Sumitomo on
the 14 June 1994 and in the period between 30
November and 9 December 1995, Roche states that
these only concerned the supply of thiolactone, a key
intermediate
from
Sumitomo to Roche.

the production of biotin,

for

1.4.9.5. Involvement of BASF

(511) At

the end of

the first quarter of 1994 BASF was
reporting that the producers were selling in Europe at
the following prices:

Roche:

130(cid:151)135 DEM/kg,

Lonza:

125(cid:151)130 DEM/kg,

Japanese 120(cid:151)125 DEM/kg,

Il Sung: 118(cid:151)123 DEM/kg,

(512)

It was however predicting that Roche would maintain
its firm stance on pricing and that the others would
attempt to improve their prices.

level had ceased in early 1994;

(513) Roche asserts that the implementation of the agreement
at operational
the
meeting in Tokyo on 19 April 1994 was the last
multilateral meeting scheduled for biotin, although it
does not deny that in later bilateral meetings at senior
level on technical matters there was some exchange of
information on market prices. Tanabe says it (cid:145)cannot
exclude(cid:146) that there may have been discussion on the
biotin market during meetings with Roche. Merck and
Lonza submit that the infringement was terminated in
April 1994.

(514) Although after April 1994 the contacts may have been
desultory, Tanabe admits it continued to apply target
prices until January 1995; instructions from Tanabe to
its European subsidiary company dated 29 December
1994, and blaming (cid:145)heavy competition(cid:146) from Sumitomo
and Lonza for a drop in the market price, enjoins it to
keep to the target prices
for 2 % biotin in the
appropriate national currency. Tanabe implies it learned
of the target prices in telephone calls from Roche.

(517) BASF does not itself produce biotin and did not attend
any multilateral meetings;
it obtains its requirements
(from Merck) for resale to animal feed producers. Merck
is
coproducer
arrangements with BASF, it represented the latter in the
cartel meetings. Merck says it was in contact with two
individuals from BASF who were also involved in cartel
meetings for other vitamins.

given its

exclusive

insistent

that,

(518) BASF makes no mention in its Statement

to the
any mandate given to Merck to
Commission of
represent it in meetings; however,
it volunteered the
information that on 22 October 1991 employees of
Merck and BASF met
in Ludwigshafen, ostensibly
concerning the coproducer arrangements in biotin. This
was just one week after the first known multilateral
meeting in Lugano. Besides informing BASF of
the
market share allocations in biotin, Merck (cid:145)instructed Mr
((cid:133).) (of BASF) about the prices at which BASF should
resell biotin, and informed him of a price increase set
for April 1st 1992.(cid:146)

(519) BASF’s detailed notes of this meeting and its calculations
the quota scheme are in the
in direct

and re-working of
Commission’s possession. BASF was
contact with Roche.

itself

1.4.10. BETA-CAROTENE AND CAROTINOIDS

1.4.10.1. The origins and basic scheme of the cartels

(520) There were already contacts between Roche and BASF
during 1991 (31). On 22 or 23 September 1992
representatives of the two companies met in Basel to
agree
the beta-carotene
market.

shares of

respective

their

(515) Merck states that at a meeting organised by Roche some
time in 1995 in its (Roche’s) new headquarters building,
Merck’s representative had announced that Merck was

(521) The parties agreed that BASF should be allowed to
increase its 21 % market share by 1 % a year until 2001
when it would be capped at 30 %. Variations in share

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Official Journal of the European Communities

L 6/51

were permitted from region to region provided the
overall quota was not exceeded; any excess above quota
would have to be offset by compensatory purchases
from the aggrieved party. Arrangements were made to
coordinate future price increases.

(528)

Initially BASF was to be allowed a 4 % market share in
Astaxanthin in 1996 which would rise in a series of
(cid:145)steps(cid:146) to 20 % by the year 2002: 7 % in 1997; 9 % in
1998; 14 % in 1999; 16 % in 2000 and 18 % in 2001.
While BASF was constructing its new plant, Roche
would supply Astaxanthin to BASF for pre-production
marketing and trials.

1.4.10.2. Beta-carotene cartel meetings from 1992

(529)

(522) Quarterly beta-carotene meetings were held in Basel at
the same location and on the same occasion as the
vitamins A and E cartel meetings. As with vitamins A
and E, the parties prepared a detailed (cid:145)budget(cid:146), compared
actual sales against budgeted quotas, made estimates of
future market growth and agreed on the timing and
amount of price increases.

the BASF plant,

scheduled to begin
In the event
operations in 1996, did not come on stream until 1999,
and the agreement
carotinoid was not
implemented.

(cid:145)pink(cid:146)

for

(530) Carotinoid meetings were held each quarter on the same
occasion as the beta-carotene meetings and involved
In some years meetings
essentially the same persons.
were held more frequently.

1.4.10.3. The inclusion of carotinoids in the cartel
arrangements from 1993: canthaxanthin and
astaxanthin

1.4.10.4. Budgets

ingested

(523) Carotinoids are classified by the colour they produce
when
and
animals;
cintranaxanthin produce a red or gold colour in the
animal’s flesh and are called (cid:145)red(cid:146) carotinoids, while
astaxanthin, fed to salmon and other fish, makes them
turn pink and is known as a (cid:145)pink(cid:146) carotinoid.

canthaxanthin

by

(531) Both producers have provided to the Commission
budget spreadsheets or tables evidencing the operation
of
system in
beta-carotene and carotinoids. BASF has provided a
comprehensive set of documentation running from
1992 up to late 1998.

control monitoring

volume

the

(524) As with beta-carotene, Roche controlled the market for
carotinoids until the early 1990s. BASF had by 1993
increased its share of red carotinoids to around 33 %, it
did not produce the (cid:145)pink(cid:146) carotinoid astaxanthin at the
time.

(525) Roche wished to restrict BASF’s market share in the red
carotinoids;
for its part, BASF considered it needed
Roche’s agreement to obtain a share of the market for
(pink) astaxanthin.

(532) The budget sheets mostly follow the same scheme and
appear to have been frequently updated. The following
are representative for beta-carotene:

(cid:151) a comparison for each geographic region. Europe is
broken down into British Isles, Scandinavia, Western
Europe, Iberia, Southern and Central Europe, etc of
the Planned and Actual ((cid:145)Plan(cid:146) and (cid:145)Ist(cid:146)) sales of BASF
and Roche for the period January to June 1996,

(cid:151) the budget plan for 1997 for each producer,

(526) The two producers met

in Basel

in May 1993 and
agreed that BASF should initially reduce its share of red
carotinoids to 29 % for 1994, following which it was
permitted to increase its quota by 1 % to 2 % per year
until reaching a (cid:145)ceiling(cid:146) in 2002.

(cid:151) a table (filled in by hand) showing the achieved sales
for each producer in 1992, 1993 and the first half
of 1994; the (cid:145)budget(cid:146) for 1994 and a preliminary
budget
red
carotinoids,

It also includes data for

for 1995.

(527)

In August 1994 the producers agreed a schedule for
BASF’s controlled entry into the market
(pink)
astaxanthin, for which purpose it was building a new
plant due to come into service in 1996.

for

(cid:151) a document headed (cid:145)Sales estimate pr 18/10-98(cid:146)
showing that the arrangements were still operating
as late as the end of 1998.

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1.4.10.5. Continuation of

the

cartel arrangements

after 1997

(533) The regular operational meetings for beta-carotene and
carotinoids continued until at least autumn 1997. Roche
says that the last operational meeting took place in late
1997 or early 1998. By then the parties had become
concerned that their frequent contacts would attract the
unwelcome attention of the Competition enforcement
authorities.
of America,
investigations had already begun into the vitamins
market.

the United

States

In

(534) Even then, rather than put an immediate end to the
cartel, they took the decision to meet less frequently and
with greater circumspection. Roche says that the last
meeting in which an exchange of sales data took place,
but without setting targets was on 27 March 1998.
Later
in 1998, sales data were exchanged by post
(presumably at home addresses) in the same way as the
agreements in vitamins A and E were being operated.
BASF says that the agreements continued to operate in
this way until late 1998.

of a limited number of participants. In the first place,
the different versions of the events in question provided
including the principal
by the different producers,
actors,
and
demonstrate
consistency with one another as regards the salient facts.

remarkable

coherence

a

(540) Furthermore, the relevant facts are not only detailed in
the statements of the producers; they are also amply
documented in the vast quantity of contemporaneous
notes and accounting records which the Commission
has obtained from different producers. Although the
producers have not all provided the same kind of
those provided by Roche for example
documents,
consist almost exclusively of (cid:145)budget(cid:146) calculations with
virtually no contemporaneous meeting records, although
representatives must have attended hundreds of
its
meetings with competitors,
the documents for each
taken together demonstrate comprehensively
product
and completely the origin, background, rationale and
operation in practice of the collusive schemes in which
the producers were involved.

1.5. THE NATURE AND RELIABILITY OF THE EVIDENCE

(541)

the adherence to it of each of

It is not of course necessary for the proof of a violation
once (i) the existence and operation of an agreement
the alleged
and (ii)
participants,
for there to be direct
proof that every participant was involved in, or assented
to, each and every manifestation of a cartel throughout
its duration. Reasons of both substantive law and
evidence militate against such a requirement.

is demonstrated,

(535)

In the present case the vast majority of the participating
undertakings have
in
unlawful price fixing and market sharing arrangements
contrary to Article 81(1) (and implicitly Article 53(1) of
the EEA Agreement as well).

admitted their

involvement

(536) Detailed factual statements admitting the violation have
been provided by almost all the producers either on a
voluntary basis or pursuant to requests for information
from the Commission.

(542) Given the very secrecy of a cartel, and the special
characteristics of an (cid:145)agreement(cid:146)
in the context of
antitrust law, the relevant facts in a cartel case may
often have to be proved by indirect evidence or by a
combination of direct and indirect evidence.

(537)

attributed

In each case the providers of
the statements have
incriminated other producers and in many instances
have
prime
responsibility in the illegal venture to one (or more) of
the other producers. The role played by the various
producers is spelled out in some considerable detail.

initiative

and

the

the

(543)

the documentary evidence obtained:

In the present case it is hardly necessary to employ this
method of proof given the quantity and probative value
for the most
of
part,
and
implementation of the agreement has been obtained in
the (cid:145)budget(cid:146) documents and extensive
the form of
meeting notes.

existence

evidence

direct

the

of

(538) The

the Commission

statements made

by
to
undertakings involved in a serious and covert violation
of the competition rules have to be treated with some
caution, particularly if they seek to put a gloss on the
events related which is favourable to themselves,
for
example by diminishing their role in the violation.

(544) There are naturally certain gaps in the documentary
evidence. In so far as it may be necessary to fill any
such lacunae, it is permissible to infer the existence of
facts from other proven facts.

(539) However,

in the present case the Commission is not
relying on the uncorroborated declarations of only one

(545) For the most part, the contemporaneous documentation,
beside itself constituting relevant evidence of the facts to
which it relates, corroborates the accounts given by the

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producers in their statements to the Commission and
In this connection,
tends to confirm their reliability.
minor inconsistencies, for example, as to the exact date
of or the participation in a particular meeting, which
are revealed on a close comparison of the statement of
one producer with the statement or documents provided
by another, do not undermine the essential credibility of
the statement. On the other hand, in certain cases (cid:151)
among the most noteworthy are those of Eisai
in
vitamin E (recital 240) and Sumitomo in biotin (recital
to exculpate
attempts of producers
504) (cid:151) the
themselves by claiming to have been unwilling or
unwitting participants in meetings with competitors, are
contradicted by the documentary evidence.

(546)

In certain other cases,
i.e. BASF in Vitamin B1 and
biotin (recitals 260 to 269 and 517 to 519) and
Rh(cid:244)ne-Poulenc in Vitamin D3 (recitals 481 to 483), an
a
undertaking which did not
particular vitamin but was still an important seller and,
in its
take a position on its
participation in collusive arrangements for that product,
is shown to have been fully involved in a cartel.

statement, did not

itself manufacture

2. LEGAL ASSESSMENT

2.1. THE TREATY AND THE EEA AGREEMENT

2.1.1. RELATIONSHIP BETWEEN THE TREATY AND THE

EEA AGREEMENT

(547) The cartel arrangements applied to all countries in the
EEA,
i.e. all the present Member States together with
Norway and Iceland, there is no information on sales to
Liechtenstein. The arrangements in question extended to
Austria, Sweden and Finland prior to their accession to
the Community on 1 January 1995.

2.1.2. JURISDICTION

(550) According to Article 56(1)(c) and (3) of

the EEA
Agreement the Commission is competent in the present
the Treaty and
case to apply both Article 81(1) of
Article 53(1) of
the
since
Agreements had an appreciable effect on trade between
Member States and competition within the Community.

the EEA Agreement,

2.2. APPLICATION OF ARTICLE 81 OF THE TREATY AND
ARTICLE 53 EEA

2.2.1. ARTICLE 81(1) OF THE TREATY AND ARTICLE 53(1)

OF THE EEA AGREEMENT

(551) Article 81(1) of the Treaty prohibits as incompatible
with the common market all agreements between
undertakings, decisions by associations of 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, and in particular those
which directly or indirectly fix purchase or selling prices
or any other
limit or control
production and markets, or share markets or sources of
supply.

trading conditions,

(552) Article 53(1) of the EEA Agreement, which is modelled
the Treaty contains an identical
on Article 81(1) of
prohibition on agreements etc. but
the
conditions of (a) affecting trade (cid:145)between Member States(cid:146)
with (cid:145)between contracting parties(cid:146), and (b) preventing,
restricting or distorting competition within the common
market with (cid:145)within the territory covered by (cid:133) (the
EEA) agreement(cid:146).

substitutes

2.2.2. AGREEMENTS AND CONCERTED PRACTICES

(548) The EEA Agreement, which contains provisions on
competition analogous to the Treaty, came into force on
1 January 1994. This Decision therefore includes the
application as from that date of those rules, primarily
Article
the
arrangements to which objection is taken.

EEA Agreement,

53(1)

the

to

of

(549)

In so far as the arrangements affected trade between
Member States, Article 81 of the Treaty is applicable; as
regards the operation of a cartel in EFTA States which
are part of the EEA ((cid:145)EFTA/EEA States(cid:146)) and its effect
upon trade between the Community and EFTA/EEA
States or between EFTA/EEA States,
this falls under
Article 53 EEA.

(553) Article 81(1) of the Treaty and Article 53(1) of the EEA
of

agreements,

decisions

Agreement
prohibit
associations and concerted practices.

their

individual

(554) An agreement can be said to exist when the parties
adhere to a common plan which limits or is likely to
by
limit
action or
determining the
abstention from action in the market. It does not have
to be made in writing; no formalities are necessary, and
no contractual sanctions or enforcement measures are
required. The fact of agreement may be express or
implicit in the behaviour of the parties.

their mutual

commercial

lines of

conduct

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(555)

In its judgment 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 Limburgse Vinyl
Maatschappij N.V. and others v Commission (PVC II),
[1999] ECR II-931, the Court of First Instance stated (at
paragraph 715) that (cid:145)it is well established in the case
law that
for there to be an agreement within the
meaning of Article (81(1) of the Treaty) it is sufficient
for
joint
intention to behave on the market in a certain way(cid:146).

to have expressed their

the undertakings

(556) Article 81(1) of the Treaty (32) distinguishes (cid:145)concerted
practices(cid:146) from (cid:145)agreements between undertakings(cid:146) and
(cid:145)decisions by association of undertakings(cid:146). The object is
to bring within the prohibition of that article a form of
coordination between undertakings which, without
having reached the stage where an agreement properly
so called has been concluded, knowingly substitutes
practical cooperation between them for the risks of
competition (Case 48/69, Imperial Chemical Industries v
Commission [1972] ECR 619 at paragraph 64).

that

(557) The criteria of coordination and cooperation laid down
by the case-law of the Court, far from requiring the
elaboration of an actual plan, must be understood in the
light of the concept inherent in the provisions of the
Treaty relating to competition, according to which each
economic operator must determine independently the
commercial policy which he intends to adopt in the
common market. Although
of
independence does not deprive undertakings of the right
intelligently to the existing or
to adapt
strictly
anticipated conduct of
precludes any direct or indirect contact between such
operators the objet or effect of which is either to
influence the conduct on the market of an actual or
potential competitor or to disclose to such a competitor
the course of conduct which they themselves have
decided to adopt or contemplate adopting on the
market (Joined Cases 40/73 to 48/73, 50/73, 54/73 to
56/73, 111/73, 113/73 and 114/73 Suiker Unie and
others v Commission [1975] ECR 1663.)

their competitors,

requirement

themselves

it

(558) An (cid:145)agreement(cid:146) for the purposes of Article 81(1) of the
Treaty does not require the same certainty as would be
necessary for the enforcement of a commercial contract
at civil law. Moreover, in the case of a complex cartel of
long duration,
the term (cid:145)agreement(cid:146) can properly be
applied not only to any overall plan or to the terms
expressly agreed but also to the implementation of what
has been agreed on the basis of the same mechanisms
and in pursuance of the same common purpose.

(559) As the Court of Justice, upholding the judgment of the
Court of First
in Case
C-49/92P Commission v Anic Partecipazioni [1999] ECR

Instance, has pointed out

I-4125, at paragraph 81,
it follows from the express
terms of Article 81(1) of the Treaty that agreement may
consist not only in an isolated act but also in a series of
acts or a course of conduct.

(560) A cartel may thus properly be viewed as a single
continuing infringement for the time frame in which it
existed. The agreement may well be varied from time to
time, or its mechanisms adapted or strengthened to take
account of new developments. The validity of
this
assessment is not affected by the possibility that one or
more elements of a series of actions or of a continuous
course of conduct could individually and in themselves
constitute a violation of Article 81(1) of the Treaty.

(561) Although a cartel is a joint enterprise, each participant
in the agreement may play its own particular role. One
or more may exercise a dominant role as ringleader(s).
Internal conflicts and rivalries, or even cheating may
occur, but will not however prevent the arrangement
for the purposes of
from constituting an agreement
Article 81(1) of
the Treaty where there is a single
common and continuing objective.

(562) The mere fact that each participant in a cartel may play
the role which is appropriate to its own specific
circumstances does not exclude its responsibility for the
infringement as a whole, including acts committed by
other participants but which share the same unlawful
purpose and the same anti-competitive effect. An
undertaking which takes part in the common unlawful
enterprise by actions which contribute to the realisation
of the shared objective is equally responsible, for the
whole period of its adherence to the common scheme,
for the acts of the other participants pursuant to the
same infringement. This is certainly the case where it is
established that the undertaking in question was aware
of the unlawful behaviour of the other participants or
could have reasonably foreseen or been aware of them
and was prepared to take the risk (judgment of the
Court of Justice in Commission v Anic, at paragraph 83).

(563)

It is not necessary, in order for an undertaking to be a
party to an (cid:145)agreement(cid:146) in the sense of Article 81(1), for
it
to meet regularly (or even at all) with the other
producers at the same time and place. In any event, in
the context of a price-fixing cartel, there may be no
need to meet in order for the plan to be implemented;
further, one party may act as the agent of others in the
performance of the common plan and in meetings with
other participants.

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(564) Finally, it may be noted that an undertaking may at any
time adhere to an agreement which has already been
formed between other undertakings; some participants
may drop out and others may join in the course of the
unlawful venture but it nevertheless remains a single
continuing agreement.

2.2.3. THE NATURE OF THE INFRINGEMENTS IN THE

PRESENT CASE

(565) The present procedure involves 12 vitamins and closely
related products and 13 different producers, most of
which are active in only a limited number of vitamins.

(566) Roche (cid:151) the world’s largest vitamin producer (cid:151) is the
only manufacturer involved in cartel arrangements for
all the vitamins which are the subject of this Decision.

(568) The prime mover and main beneficiary of the complex
of collusive arrangements was Roche. It is the largest
vitamin producer in the world, with some 50 % of the
overall market. Vitamins were a core sector accounting
for 8 % of the Group’s total turnover. The involvement
of some of its most senior executives tends to confirm
that
the arrangements were the encapsulation of a
strategic plan conceived and approved at the highest
levels to dominate and control
in
vitamins by illegal means.

the world market

(569) BASF,

the next

largest vitamin producer worldwide,
assumed a paramount role in following Roche’s lead.
Both major European producers effectively formed a
common front
in conceiving and implementing the
arrangements with the Japanese. Together they secured
the recruitment of Eisai to their (cid:145)club(cid:146) in vitamin E: see
recitals 211 to 219. Roche later acted as the common
agent in its dealings with Eisai.

(567) Notwithstanding the number of producers, the variation
in the participation in the meetings and the diversity of
their product ranges, the collusive arrangements share
the following common features:

(570)

(cid:151) the cartel arrangements covered the full range of

vitamins produced by Roche,

(cid:151) the modus operandi

for different vitamin products
was essentially the same if not identical ((cid:145)budgets(cid:146),
the status quo in market shares,
maintenance of
(cid:145)target(cid:146) and (cid:145)minimum(cid:146)
compensation arrangements,
prices, meeting structures, etc.),

(cid:151) the collusive arrangements in the various vitamins
were not spontaneous or haphazard developments,
but were planned, conceived and directed by the
same persons at the most senior levels in Roche and
the other undertakings,

(cid:151) the effective starting point for the worldwide cartel
arrangements was the same for vitamins B1, B2, B5,
B6, C and folic acid, somewhat earlier for vitamins
A and E, which in fact provided the basic model for
the scheme, namely the visit of senior executives
from Roche and BASF to Japan on 30 and 31
January 1991,

(cid:151) the price increases for the great majority of

the
different vitamins were usually announced and made
on the same occasion,

(cid:151) Roche and BASF sold a substantial part of

their
production in the form of pre-mixes, incorporating
several vitamins,
the implications of which in
competition terms have already been discussed.

In the other vitamin products, the cartel arrangements
generally followed the same scheme as that pioneered in
vitamins A and E, with some variants in the case of
vitamin H, with Roche acting as
the agent and
representative of the European producers (BASF, Lonza,
Merck) in the meetings and negotiations held in Japan
and the Far East.

(571) Takeda, as one of the main world producers of bulk
vitamins, was fully involved in the cartel arrangements
for vitamins B1, B2, B6, C and folic acid.
Indeed,
Takeda’s involvement in the arrangements in each of
to Roche’s
these vitamin products was instrumental
designs to secure the illegal coordination of the vitamin
markets it was active in, including those in the range of
vitamin products it shared with Takeda.

(572) The other vitamin producers were all active and willing
members of the cartel arrangements in the respective
vitamin product markets in which they were active.
Even if they had not taken the initiative, the attempts of
some producers, notably Sumitomo and Eisai, to present
as having been drawn into collusive
themselves
arrangements almost by accident, stand in conflict with
the documentary evidence. Sumitomo does not dispute
and multilateral
that
meetings with other biotin producers. Nevertheless,
it
submits that the Commission either lacks evidence, or
did not properly assess the evidence at its disposal, and
that Sumitomo
that
actually
agreements.
Sumitomo’s main argument is that the submissions on
differing
which

it does not provide any proof
into

attended various bilateral

anti-competitive

Commission

contain

entered

relies

the

it

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descriptions of the facts, and that the Commission is
(cid:145)cherry picking(cid:146) the information in its possession. More
generally, Sumitomo contests that the facts described by
the Commission amounted to an agreement within the
meaning of Article 81 of the Treaty. Sumika comes to
is
similar conclusions as far as the folic acid cartel
concerned. The company submits that the Commission
has not met
its burden of proof obligations and
therefore has not established with sufficient certainty
Sumika’s participation in an infringement of Article
81(1) of the Treaty.

coordinate their prices that to all intents and purposes
they operated in the market place not as competitors,
but as members of a close partnership.

(577) The collusive arrangements in most of

the vitamins
concerned employed essentially the same model and
followed the same pattern and the same method of
operation, namely:

a

be

number

(573) These arguments must be dismissed. Firstly, in its effort
the case from separate and
to establish the facts of
the Commission may
submissions,
inevitably partial
inherently
of
confronted with
inconsistencies and/or contradictions. Nevertheless, the
fact that Sumika and Sumitomo participated in several
meetings, and that the object of these meetings was to
restrict competition in, respectively, the folic acid and
biotin markets is confirmed by the submissions made by
the other cartel participants. Sumika and Sumitomo
themselves confirm that they took part in a number of
meetings which in the Commission’s view can be
identified as cartel meetings, the unambiguous object of
which was
to restrict competition in the markets
concerned. Since there is no evidence that either Sumika
or Sumitomo openly distanced themselves from what
was
founded to
the Commission is well
conclude that Sumika and Sumitomo entered into
collusive arrangements with regard to, respectively, folic
(Case T-334/94 Sarri(cid:243) v Commission
acid and biotin.
[1998], ECR II-1439, recital 118).

agreed,

(574)

In the case of both BASF and Rh(cid:244)ne-Poulenc their
participation in the cartel arrangements or certain
vitamin products of which they were not themselves
manufacturers (biotin (H) in the case of BASF and D3
for Rh(cid:244)ne-Poulenc) is also demonstrated (33).

(575) The main common denominator of the different vitamin
cartels is the presence of Roche and BASF,
the two
leading producers of vitamins worldwide, in all vitamin
cartels to eliminate all effective competition between
them in the Community and EEA across almost the
whole a range of important vitamins.

(576) Beginning in January 1990 with vitamins A and E,
which together account for some 60 % of demand for
animal feed vitamins, and extending to vitamins B1, B2,
B5, C, D3, H, beta-carotene and carotinoids, which
constitute their common range; BASF does not market
vitamin B6 or folic acid, these two producers, together
with Rh(cid:244)ne-Poulenc, Takeda and others, set up a secret
and sophisticated mechanism to control the market for
the vitamins concerned, fix their market shares and so

(cid:151) the preparation, agreement and implementation and

monitoring of an annual (cid:145)budget(cid:146),

(cid:151) the

exchange

of

sales,

volume

and

pricing

information on a quarterly or monthly basis,

(cid:151) the adjustment of actual sales achieved so as to
comply with the quotas allocated in the (cid:145)budget(cid:146)
exercise,

(cid:151) the establishment of formal structure and hierarchy
levels of management, often with

of different
overlapping membership at the most senior levels,

(cid:151) the role of Roche as the conduit for collusion with

Japanese producers.

(578) There were, however, certain variations as regards the
allocation of market share quotas. In vitamins A and E,
for example,
the basic principle was the freezing of
market shares at the respective percentages achieved in
1988;
to be
increased by 1 % a year until 2001 and thereafter
capped at 30 %. For biotin (vitamin H) there was a
general agreement to stabilise market shares at 1992
levels but no precise quarterly monitoring mechanisms.

in beta-carotene, BASF’s

share was

(579) The Commission considers that

the anti-competitive
behaviour affecting vitamins A, E, B1, B2, B5, B6, C,
D3, H, folic acid, beta-carotene and carotinoids present,
the
in the
characteristics of full agreements within the meaning of
Article 81.

each vitamin product,

case of

all

(580) Given the continuity and similarity of method,

the
Commission considers it appropriate to treat in one and
the same procedure the complex of agreements covering
the different vitamins. The Commission therefore covers
several infringements in a single Decision.

(581)

In its reply to the Statement of Objections, Roche stated
it was not opposed to the Commission
that whilst
dealing with all of
the various vitamins cartels in a
single procedure, it did not agree with the idea that the
various cartel agreements should be treated as a single
conspiracy.
investigation
In Roche’s view, each cartel
should be restricted to the respective product market,

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i.e. to the individual vitamin. Roche equally pointed out
that it was not aware of any evidence as to the existence
of an agreement between the various vitamins producers
to engage in any (cid:145)overall coordinated scheme(cid:146) for the
entire vitamins industry.

involved with the producers in the common design to
reasons,
fix prices and operate quotas. For
Rh(cid:244)ne-Poulenc must also be considered a full party to
the agreement in vitamin D3, of which it was not a
producer.

similar

(582) The Commission has described in detail

the various
vitamin product markets and the details relating to the
infringement specific to each one. The treatment of
separate infringements under a single procedure does
the various cartels are
not
imply in any way that
considered a single infringement.
is
In any case,
apparent from the facts as described in part 1 of this
the collusive
Decision and recitals 567 to 577 that
arrangements
vitamins were not
various
spontaneous or haphazard developments, but were
planned, conceived and directed by the same persons at
and the other
the most
undertakings.

in Roche

in the

senior

levels

it

the

affecting

infringements

(583) The Commission has considered the arrangements in
each vitamin and has identified the participants in each
of
vitamin
markets. Whilst some of the undertakings to which the
Decision is addressed are unconnected with some of the
infringements, the Decision permits each addressee to
obtain a clear picture of the complaints made against it.
(Joined Cases 40/73 to 48/73, etc. Suiker Unie and others
v Commission [1975] ECR 1663, paragraph 111).

individual

the different collusive arrangements was

(584) The Commission considers that the cartel agreements
covering the vitamin products identified constituted, in
each case, distinct infringements, although the scheme
similar.
of
Moreover,
the
particular role of Roche and BASF which participated in
them to partition the vitamin markets (34).
all of
However, the Commission does not hold any producer
responsible for collusion in products in which it was
not involved (see table at recital 2 and recitals 565 to
574).

the Commission takes

into account

(585) The fact that the Japanese producers generally did not
participate in plenary meetings with the European
producers in no way detracts from the assessment of
full participation in an (cid:145)agreement(cid:146)
in the sense of
Article 81(1). Not only were they involved in the
schemes to cartelise the different product markets; they
were also in full complicity through the medium of
Roche
continuing
implementation and execution.

sometimes

in its

others

and

(586) For

certain

products,

the
the
arrangements were not confined to the producers
themselves. As far as the conduct of BASF in vitamin B1
and biotin is concerned, although it was not itself a
fully
those particular products,
producer of

participation

it was

in

(587)

In vitamin B1, BASF had ceased its own production in
1989 but the documentary evidence (see recitals 261 to
269) show that it was a party to the quota scheme, was
represented by Roche in the meetings with Takeda and
was instructed by Roche as to the prices it was to apply.
BASF’s role in biotin also went far beyond that of assent
to and encouragement of the unlawful scheme; it was a
the quota allocated to
corecipient and beneficiary of
Merck.

2.2.4. RESTRICTION OF COMPETITION

(588) The agreements affecting vitamins A, E, B1, B2, B5, B6,
folic acid, beta-carotene and carotinoids,
C, D3, H,
individually had the object and effect of restricting
competition in the Community and EEA.

Article 81(1)
competition agreements which:

expressly mentions

as

restrictive of

(cid:151) directly or indirectly fix selling prices or any other

trading conditions,

(cid:151) limit or control production, markets or technical

development,

(cid:151) share markets or sources of supply.

(589) These are the essential characteristics of each of the
horizontal arrangements under consideration in the
present case. Price being the main instrument of
the various collusive arrangements and
competition,
mechanisms
all
adopted by
ultimately aimed at an inflation of the price to their
benefit and above the level which would be determined
by conditions of free competition. Market sharing and
price fixing by their very nature restrict competition
within the meaning of both Article 81(1) of the Treaty
and Article 53(1) of the EEA Agreement.

the producers were

(590) The

principal

and
of
arrangements which can be characterised as restrictions
of competition are:

agreements

aspects

the

(cid:151) allocating markets and market share quotas,

(cid:151) agreeing concerted price increases,

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(cid:151) agreeing target and minimum prices,

T-202/98, T204/98 and T-207/98 British Sugar and
others v Commission, not yet reported, at paragraphs 72
and 73).

(cid:151) concerting on the implementation of
increases in the different markets,

those price

(cid:151) adapting their individual conduct and pricing in
the agreed
to ensure the maintenance of
for
some

order
quotas
(cid:145)compensation(cid:146) to adjust actual sales to the quotas,

arranging

cases

and

in

(cid:151) reinforcing the implementation of price increases by

concerting and managing the (cid:145)key accounts(cid:146),

(595) Market sharing and price fixing by their very nature
restrict competition within the meaning of Article 81(1).
Quite independently of the success or otherwise of their
agreements to control the vitamin A, E, B1, B2, B5, B6,
folic acid, beta-carotene and carotinoids
C, D3, H,
markets, the producers devised a continuing and highly
advanced machinery
commercial
behaviour
a perceived mutual
solidarity and common commercial interest.

to govern their

context of

in the

(cid:151) dividing the business of specific customers (35).

2.2.5. EFFECT UPON TRADE BETWEEN MEMBER STATES
AND BETWEEN EEA CONTRACTING PARTIES

(591)

their
implementation of
the
to ensure
In order
restrictive agreements,
the participants devised and
applied reporting and monitoring systems, except in the
case of vitamin H. They also participated in regular
meetings and other contacts in order to agree the
restrictions and to implement and/or modify them as
required.

(596) The continuing agreement between the producers had
an appreciable effect upon trade between Member States
and between contracting parties of the EEA Agreement.

(592)

is also relevant

It
that as producers of pre-mixes
themselves as well as suppliers of vitamins to other
pre-mixers, the major producers (particularly BASF and
Roche) were in a position to (cid:145)squeeze(cid:146) the margins and
their
damage, actually or potentially,
customers by increasing the price of vitamins to them.

the business of

(593) Merck argues that the Commission fails to assign the
material facts to the categories listed in Article 81(1) of
the Treaty and presents a deficient and generalised
description of the objections raised. The Commission
rejects this argument. The material facts relevant to each
of the infringements in the individual vitamin markets
concerned are presented in particular detail
in part 1
above. With regard to the principal
restrictions of
competition identified these are common to each and
every infringement affecting the individual vitamin
markets. This degree of similarity between the collusive
agreements and arrangements made between the various
participants amply justifies a common legal assessment
of the facts and does not mean that the Commission
holds producers responsible for collusion in products in
which they were not involved (see tables (a) and (b) in
recital 2).

(594) Given the manifestly anti-competitive object of

the
agreements,
is not necessary for an adverse effect
upon competition to be demonstrated (Judgment of the
Court of First Instance of 12 July 2001 in Joined Cases

it

(597) Article 81(1) of

the Treaty is aimed at agreements
which might harm the attainment of a single market
between the Member States, whether by partitioning
national markets or by affecting the structure of
competition within the common market. Similarly,
Article 53(1) of
is directed at
agreements which undermine
realisation of a
homogeneous European Economic Area.

the EEA Agreement

the

(598)

(cid:145)for an agreement between
It is settled case-law that,
undertakings or a concerted practice to be capable of
affecting trade between Member States,
it must be
possible to foresee with a sufficient degree of probability
and on the basis of objective factors of law or fact that
it may have an influence, direct or indirect, actual or
potential, on the pattern of
trade between Member
States, such as might prejudice the realisation of the aim
of
single market between the Member States(cid:146)
(judgment of the Court of First Instance of 12 July 2001
in Joined Cases T-202/98, T204/98 and T-207/98
British Sugar and others v Commission, at paragraph 78).

a

and

folic

acid,

carotinoids

(599) The markets for vitamins A, E, B1, B2, B5, B6, C, D3,
H,
are
beta-carotene
characterised by a substantial volume of trade between
Member States (see recitals 74 and 75). There is also a
considerable volume of trade between the Community
and EFTA: Norway and Iceland import 100 % of their
requirements, primarily from the Community, and prior
to their accession to the Community Austria, Finland
and Sweden imported the totality of their requirements
of bulk vitamins.

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(600) The application of Articles 81(1) of

the Treaty and
53(1) of the EEA Agreement to a cartel is not, however,
limited to that part of the members’ sales which actually
involve the transfer of goods from one State to another.
in order for these provisions to
Nor is it necessary,
the individual conduct of each
to show that
apply,
participant, as opposed to the cartel as a whole, affected
trade between Member States (see the judgment in Case
T-13/98,
v Commission
Imperial Chemical
([1992] ECR II-1021, at paragraph 304)).

Industries

(601)

the cartel arrangements covered
In the present case,
virtually all trade throughout the Community and EEA
in this important
industrial sector. The existence of
price-fixing and quota mechanisms must have resulted,
or been likely to result, in the automatic diversion of
trade patterns from the course they would otherwise
have followed (see the judgment of the Court of Justice
in Joined Cases 209/78 to 215/78 and 218/78, Van
Landewyck and others v Commission ([1980] ECR 3125,
paragraph 170)).

(602) Sumika states that there was no appreciable effect on
trade between Member States in relation to folic acid
because the European market value was only around
EUR 10 million and because there would have been no
effect on trade between Member States.

(603) Firstly, Sumika’s implicit contention that a restriction of
competition concerning a market of EUR 10 million has
no appreciable effect on trade between Member States
must be dismissed. The effect of a restriction of
competition has to be evaluated with regard to the
potential
in the market
the restriction has
concerned,
irrespective of the monetary value of the
product market. In the present case, the anti-competitive
agreement was capable of having an effect on the
totality of the EEA market for folic acid.

impact

(604) Secondly,

the allegation that

there was no effect on
trade between Member States must also be rejected. The
argument of Sumika that (cid:145)Hoffmann-La Roche produced
folic acid mainly for incorporation in its pre-mixes and
not for sale on the European or other markets(s)(cid:146) must
be dismissed. Indeed, Sumika’s argument shows that the
restrictive agreement had an impact on the price of
products (the pre-mixes) traded throughout the EEA and
necessarily affected trade between Member States.
In
addition, whilst
Japanese producers had no
production facilities in Europe, they marketed folic acid
an
throughout
the
having
the cartel agreement
intra-Community trade. Finally,

Europe

effect

the

on

between Roche and the Japanese producers of folic acid
to the EEA, with the
served to restrict
consequent restrictive effect on intra-Community trade.

exports

(605) Merck asserts that the Commission fails to demonstrate
the effect of the vitamins C and H agreements on trade
between Member States. The Commission has no
obligation to demonstrate the effect of the agreements
rather must
on trade between Member States but
establish that the conduct is capable of having such an
effect. For
its part, Merck does not present any
arguments that conclusively refute the capability of the
agreements in vitamins C and H of having such effect.

2.2.6. PROVISIONS OF COMPETITION RULES APPLICABLE
TO AUSTRIA, FINLAND, ICELAND, NORWAY AND
SWEDEN

the only provision relevant

(606) The EEA Agreement entered into force on 1 January
1994. For the period prior to that date during which a
cartel operated,
for the
present proceedings is Article 81 of the Treaty; in so far
as the cartel arrangements covered Austria, Finland,
Iceland, Norway and Sweden (then EFTA States), they
are not considered to be a violation of Article 81(1) of
the Treaty.

(607)

In the period 1 January to 31 December 1994,
the
provisions of the EEA Agreement applied to the six
EFTA States which had joined the EEA; a cartel thus
constituted a violation of Article 53(1) of
the EEA
Agreement as well as of Article 81(1) of the Treaty, and
the Commission is competent to apply both provisions.
The restriction of competition in five EFTA States
during this one year period falls under Article 53(1) of
the EEA Agreement.

(608) After the accession of Austria, Finland and Sweden to
the Community on 1 January 1995, Article 81(1) of the
in so far as it
Treaty became applicable to a cartel
affected those markets. The operation of a cartel
in
Iceland and Norway remained in violation of Article
53(1) of the EEA Agreement.

(609)

In practice, in so far as the cartel agreements applied to
Austria, Finland,
they
constituted a violation of the EEA and/or Community
competition rules as from 1 January 1994.

Iceland, Norway and Sweden,

2.2.7. DURATION OF THE INFRINGEMENTS

(610) Although there are certain indications that contacts
between certain vitamin producers may have taken

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place before 1989, the Commission limits its assessment
under Article 81 and the application of any fines to the
period beginning in September 1989 (the month of the
meeting in Zurich when the cartel scheme for vitamins
A and E was agreed).

(611)

It should of course be noted that in so far as the cartel
arrangements concerning each vitamin product covered
Austria, Finland, Iceland, Norway and Sweden they did
not constitute infringements of competition rules before
1 January 1994 when the EEA Agreement came into
effect.

(612) This section sets out separately for each vitamin the
the

to establishing the duration of

relevant

factors
involvement of each producer.

2.2.7.1. Vitamins A and E

(613) The

three European producers Roche, BASF
the

agreements

entered

illegal

and
in

Rh(cid:244)ne-Poulenc
September 1989 (36).

(614) Eisai’s adherence to the cartel with regard to vitamin E
can be taken to date at the very latest from the meeting
in Japan on 8 and 9 January 1991 when its executives
confirmed
existing
their
arrangements (37).

readiness

join

the

to

2.2.7.4. Vitamin B5

(620) The participation of Roche, BASF and Daiichi

is

established from January 1991 (44).

(621) The cartel arrangements persisted until at
Tokyo meeting of 12 February 1999 (45).

least

the

2.2.7.5. Vitamin B6

(622) The starting date for

the vitamin B6 arrangements
between Roche, Daiichi and Takeda was also January
1991 (46).

(623) The last known meeting for this product was in June
1994, although the parties continued to exchange
(cid:145)information on price trends(cid:146) for an unspecified period,
this will be
the
infringement (47).

taken to be

end date of

the

2.2.7.6. Folic acid

(624) The arrangements between Roche, Takeda, Kongo and
Sumika concerning folic acid started in the beginning of
January 1991. The last known meeting for this product
was in June 1994. This will be taken to be the end date
of the infringement (48).

(615) The four producers continued their collusion until

February 1999 (38).

2.2.7.7. Vitamin C

2.2.7.2. Vitamin B1

(616) The vitamin B1 arrangements between Roche, BASF and
Takeda were initiated in January 1991. According to the
producers, the last cartel meeting was in June 1994; this
will be taken to be the end date of the infringement (39).

(617) BASF must be taken to have been a member of this
January

cartel for as long as it was in existence,
1991 to June 1994 (40).

i.e.

(625) The starting date for present purposes can also be taken
as January 1991 for all the producers. Roche, BASF and
Merck met during January and shortly thereafter (30
and 31 January) Roche went to Tokyo to secure the
agreement of Takeda (49).

(626) The last documented meeting of the cartel was held in
Hong Kong in August 1995. Notwithstanding the fact
that the parties continued to make price forecasts for
later periods of time, this will be taken to be the end
date of the infringement (50).

2.2.7.3. Vitamin B2

2.2.7.8. Vitamin D3

(618) The two major producers, Roche and BASF, agreed the
framework of the cartel in vitamin B2 on 14 and 15
July 1991 (41). Takeda’s involvement
in the collusive
arrangement began in or about January 1992 (42).

(619) The arrangements lasted until September 1995 (43).

(627) The Commission will for present purposes take as the
starting point the date of the first admitted meeting in
January 1994 between Roche, BASF and Solvay (51).

(628) Although the last plenary meeting between Solvay,
Roche and BASF was in August 1997,
the parties
continued their cartel arrangements until July 1998 (52).

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2.2.7.9. Vitamin H

(629)

In biotin the collusion will be taken to have begun in
October 1991 with the Lugano meeting attended by
Roche, Lonza, Merck, Sumitomo and Tanabe (53).

(630) The last known meeting for this product was held on
19 April 1994. Although further contacts between
Roche and Tanabe took place after this date, this will be
taken to be the end date of the infringement (54).

2.2.7.10. Beta-carotene and carotinoids

of an infringement of
provision(cid:146)
Commission ([1998] ECR II-1989, at paragraph 87)).

the kind referred to in that
(Case T-352/94 Mo Och Domsj(cid:246) AB v

(637) Further, while the subject of the competition rules are
undertakings,
the
enforcement of
imposition and collection of any penalty require the
identification of a specific legal personality responsible
for the conduct of that undertaking and to which the
Decision can be addressed.

rules

and

the

(631) Although BASF admits to (cid:145)occasional contacts(cid:146) with
Roche between 1988 and 1991, the Commission will
take 22 September 1992 as the starting point for the
cartel arrangements in beta-carotene (55) and May 1993
for carotinoids (56).

(632) The agreements for both of
until December 1998 (57).

these products operated

(638) As the Court of First Instance observed in Case T-6/89
Enichem Anic v Commission [1991] ECR II-1695, where
between the commission of the infringement and the
time the person responsible for the operation of that
undertaking has ceased to exist in law, it is necessary
first to find the combination of physical and human
elements which contributed to the commission of the
infringement, and then to identify the person which has
become responsible for their operation.

2.2.8. ADDRESSEES: UNDERTAKING IDENTITY AND

SUCCESSION

(633)

It is established by the facts as described in part 1 that
Roche, BASF, Solvay, Merck, Lonza AG, Daiichi, Eisai,
Kongo, Sumitomo, Sumika, Takeda and Tanabe have
directly participated in the
arrangements
regarding different vitamin cartels. Consequently, each
company will bear responsibility for their respective
infringements and is
the
present Decision.

therefore an addressee of

collusive

(634)

In the present case, Rh(cid:244)ne-Poulenc has changed its legal
form since the ending or presumed ending, of
its
involvement in different illegal agreements.

(635) A change in legal form or corporate identity does not
relieve an undertaking of liability to penalties for the
anti-competitive behaviour. Liability for a fine may thus
pass to a successor where the corporate entity which
committed the violation has ceased to exist in law. This
is because the subject of the competition rules in the
Treaty and the EEA Agreement is the undertaking, a
to the notion of
concept not necessarily identical
corporate legal personality in national commercial,
company or fiscal law.

(636) The (cid:145)undertaking(cid:146) is not defined in the Treaty. The Court
of First Instance has found that (cid:145)Article 81(1) of the
Treaty is aimed at economic units which consist of a
unitary organisation of personal, tangible and intangible
elements, which pursues a specific economic aim on a
long-term basis and can contribute to the commission

(639) The legal person on which the fine is imposed may
therefore be different from that which existed at the
time of the commission of the infringement.

(640)

it

for

holds

responsible

Commission

In the case of Rh(cid:244)ne-Poulenc, as indicated in section
1.2.5.3, given that it exercised decisive influence over
RPAN, its wholly owned subsidiary, which was directly
involved in the cartels related to vitamins A, E and D3,
the
the
infringement. Rh(cid:244)ne-Poulenc merged with Hoechst on
15 December 1999 to form a new company Aventis
and this 10 months after the end of the infringements
in the vitamin A and E markets and seventeen months
after the end of the infringements in vitamin D3. RPAN
has now become AAN, a business within the new
company resulting from the merger, Aventis SA, for the
operation of which Aventis SA is now responsible. In
this respect, Community case-law states (cid:145)(cid:133), where an
infringement
it is
necessary to identify the natural or legal person who
was responsible for the operation of the undertaking at
the time, so that
it can be made answerable for it.
Where, however, between the infringement and the time
when the undertaking in question must answer for it,
the person responsible
that
for
undertaking has ceased in law to exist, it is necessary,
first,
to establish the combination of physical and
human elements which contributed to the infringement
and then to identify the person who has become
responsible for their operation, so as to avoid the result
the person
that because of

is found to have been committed,

the disappearance of

the operation of

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responsible for its operation when the infringement was
committed the undertaking may evade liability for it.(cid:146)
(Joined Cases PVC II, T-305/94 and others, [1999] ECR
II-0931, paragraph 953).

(641) Given the continuity between Rh(cid:244)ne-Poulenc SA and
Aventis SA, in this respect see the posts and personnel
responsible for the vitamins business of the company
mentioned at recitals 92 and 93 above, the fact that
Rh(cid:244)ne-Poulenc SA (before its merger with Hoechst) and
later Aventis SA was the sole interlocutor with the
Commission during the administrative proceedings after
having itself spontaneously approached the Commission
on a voluntary basis and the fact that at no point did
the cartels in
the undertaking deny its awareness of
which RPAN was directly involved nor the imputation
of the infringement to it (see Case C-286/98 P Stora
Kopparbergs Bergslags v Commission [2000] ECR-9925,
the present Decision is addressed to
paragraph 29),
Aventis SA (58).

(642)

In other cases, there is no question of succession, but it
is necessary to identify the appropriate legal entity
within the group to which the Decision should be
addressed. In the case of Solvay Pharmaceuticals BV, this
undertaking directly participated in the infringement
and operates as a functionally separate entity from its
parent Solvay SA. The Commission therefore addresses
this Decision to Solvay Pharmaceuticals BV.

(643) With regard to Lonza AG, although it was acquired in
1994 by Alusuisse which then demerged into Lonza
it has always existed as a separately
Group AG,
managed
the Decision is
addressed to Lonza AG.

undertaking. Therefore

(644) Sumitomo directly participated in the cartel related to
vitamin H (biotin); the Decision is therefore addressed to
it
in this respect. Sumika is a 100 % subsidiary of
Sumitomo which operates as a functionally separate
entity from its parent Sumitomo. It was created in April
1992 as a result of the merger of three subsidiaries of
Sumitomo, including Yodogawa Chemicals which up to
that date had been engaged in the manufacture and sale
of folic acid. Yodogawa and later its successor Sumika
participated in a cartel
the
Decision is therefore addressed to the latter with regard
to this product.

relating to folic acid;

2.2.9. APPLICABILITY OF LIMITATION PERIODS

limitation period only begins to run on the day the
ceases (60). Any action taken by the
infringement
the preliminary
Commission for
the purpose of
proceedings
investigation
an
respect
or
in
infringement shall
interrupt the limitation period and
each interruption shall start time running afresh (61).

of

(646) As established in the present Decision, the companies
Lonza AG, Kongo Chemical Co. Ltd, Sumitomo
Chemical Co. Ltd, Sumika Fine Chemicals Ltd and
Tanabe Seiyaku Co. Ltd have been directly involved in
the facts subject to the present proceedings and have
therefore taken part in an infringement of Article 81(1)
of the Treaty and Article 53(1) of the EEA Agreement.

(647)

In all cases,
the companies can be deemed to have
ceased their participation in the cartel arrangements
they were respectively involved in (vitamin H or folic
acid) more than five years before the Commission
started its
investigation. The infringements affecting
vitamin H and folic acid ended on 19 April 1994 and
June 1994 respectively. The Commission sent its first
written requests for information with regard to vitamin
H and folic acid on 20 August 1999 and 15 November
1999 respectively.

(648) The infringements affecting vitamins B1 and B6 ended,
in both cases, in June 1994. The Commission sent its
for information with regard to
first written request
vitamins B1 and B6 on 19 August 1999. Therefore,
BASF AG, Daiichi
F.
Hoffmann-La Roche AG and Takeda Chemical Industries
Ltd can be deemed to have ceased their participation in
the cartel arrangements for vitamin B1 or B6 more than
five
its
investigation.

Pharmaceutical Co.

Commission

started

before

years

Ltd,

the

their

involvement

and despite

(649) Article 1 of Regulation (EEC) No 2988/74 is therefore
applicable
in the
infringements, Lonza AG, Kongo Chemical Co. Ltd,
Sumitomo Chemical Co. Ltd, Sumika Fine Chemicals Ltd
and Tanabe Seiyaku Co. Ltd are not subject to fines
under the present Decision. Equally, BASF AG, Daiichi
Pharmaceutical Co. Ltd, F. Hoffmann-La Roche AG,
Merck KgaA and Takeda Chemical Industries Ltd are not
the
their
subject
infringements affecting vitamins B1, B6, H (biotin) or
folic acid.

involvement

fines

for

to

in

(645) Pursuant to Article 1 of Regulation (EEC) No 2988/74
of
the Council 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 (59),
the Commission to impose fines or
the power of
penalties
the substantive rules
relating to competition is subject to a limitation period
the
continuing
of

infringements of

infringements,

years.

five

For

for

(650) Sumika and Sumitomo submit in their respective replies
to the Statement of Objections that even if they were
found to have
such
infringement could no longer be the subject of a
Commission Decision since it would be time barred.

committed an infringement,

(651) This

argument must be dismissed. The

rules on
limitation periods concern exclusively the imposition of

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fines or penalties. They have no bearing on the
the Commission to investigate cartel
entitlement of
cases
appropriate, prohibition
decisions.

to adopt,

and

as

(657)

to

regard

In fixing the amount of any fine the Commission must
and
have
particularly the gravity and duration of an infringement,
which are the two criteria explicitly referred to in
Article 15(2) of Regulation No 17.

circumstances

relevant

all

2.3. REMEDIES

2.3.1. ARTICLE 3 OF REGULATION NO 17

(652) Where the Commission finds there is an infringement of
Article 81 it may require the undertakings concerned to
bring such infringement to an end in accordance with
Article 3 of Regulation No 17.

(653)

(654)

in the cartels
In the present case the participants
affecting each of the vitamin products concerned went
to considerable
their unlawful
conduct. The Commission stated in its Statement of
it was not possible to declare with
Objections that
absolute certainty that the infringements had ceased.

to conceal

lengths

claimed that

the
In their replies to the Statement of Objections,
they had ended their
undertakings
infringements. Notwithstanding
participation in the
these observations, and in the interest of clarity,
it is
necessary to require the undertakings to which the
present Decision is addressed, and that remain active in
any of the vitamin products concerned, to bring the
infringements to an end, if they have not already done
so, and henceforth to refrain from any agreement,
concerted practice or decision of an association which
might have the same or similar object of effect.

(658) The role played by each undertaking party to the
infringements is assessed on an individual basis.
In
particular, the Commission reflects in the fine imposed
and
any aggravating or
applies, as appropriate, the leniency notice.

attenuating circumstances

2.3.2.2. The basic amount of the fines

(659) The basic amount is determined according to the gravity

and duration of the infringement.

(660)

In the present case, infringements subject to fines were
committed in eight separate vitamin product markets:
vitamins A, E, C, B2, B5, D3, beta-carotene and
carotinoids.

(661) Given the continuity and similarity of characteristics and
method, the category of seriousness of the infringements
committed in these markets, their actual impact on the
market and the size of the relevant geographic markets
is assessed under the same heading. Further elements of
gravity, such as the differential treatment to take into
and
account
for
sufficient
companies
the
in
the infringements in each
differences in duration of
product market concerned,
is assessed
separately.

an undertaking’s
capacity
separately
are
product market. Given

deterrence,
each

economic
assessed

this element

2.3.2. ARTICLE 15(2) OF REGULATION NO 17

Gravity

2.3.2.1. General considerations

(662)

In its assessment of the gravity of the infringements, the
Commission takes account of their nature, their actual
impact on the market, where this can be measured, and
the size of the relevant geographic market.

(655) Under Article 15(2) of Regulation No 17 (62),

the
Commission may by decision impose upon undertakings
fines from EUR 1 000 to EUR 1 000 000, or a sum in
excess thereof not exceeding 10 % of the turnover in
the preceding business year of each of the undertakings
participating
either
intentionally or negligently, they infringe Article 81(1)
of
the EEA
Agreement.

the Treaty and/or Article 53(1) of

infringement where,

an

in

(656)

for

adopted

In view of the nature of the agreements in question, as
described in the factual part of the Decision, and the
the
measures
undertakings could not have been unaware that their
conduct had as its object the restriction of competition.
The Commission therefore concludes that each of the
cartels constitutes a deliberate infringement of Article
81(1) of the Treaty and 53(1) of the EEA Agreement.

implementation,

their

Nature of the infringements

All products (vitamins A, E, C, B2, B5, D3, beta-carotene
and carotinoids)

(663)

follows

foregoing

from the

It
the present
infringements consisted mainly of market sharing and
price fixing practices, which are by their nature very
serious violations of Articles 81(1) of the Treaty and
53(1) of the EEA Agreement.

that

(664) The arrangements affecting vitamins A, E, C, B2, B5,
D3, beta-carotene and carotinoids constituted deliberate

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infringements of Articles 81(1) of the Treaty and 53(1)
the
the EEA Agreement. With full knowledge of
of
illegality of
leading producers
combined to set up secret and institutionalised systems
designed to restrict competition in a major industrial
sector.

actions,

their

the

(665) The

the

cartel

the highest

vitamins
arrangements permeated
industry and were mostly conceived, directed and
encouraged at
the undertakings
concerned. By their very nature, those agreements lead
automatically to an important distortion of competition,
which is of exclusive benefit
to the participating
producers and to the detriment of their customers and
ultimately the general public.

levels of

(666) The

therefore

Commission

the
infringements affecting vitamins A, E, C, B2, B5, D3,
beta-carotene and carotinoids constituted by their nature
very serious infringements of Article 81(1) of the Treaty
and Article 53(1) of the EEA Agreement.

considers

that

The impact of the infringements on the various
vitamin product markets in the EEA

that

the fact

agreed on target prices, market

interpreted in the light of
the cartel
share
members
allocation and reporting and monitoring systems for
each vitamin product concerned (63). In any event, even
if it were correct that in the absence of the cartel prices
would have remained at the same level as those reached
as a result of the cartel, this would only show that the
cartel was
It
cannot validly rebut the Commission’s finding that the
price increases actually implemented were made because
of the activities of the participants in the cartel. This
finding is made on the basis of observed and agreed
facts. Roche should have proven that price rises were
not caused by the cartel.

insufficiently ambitious.

inefficient or

(670)

In so far as the vitamin C agreements are concerned,
Merck argues that for its part they proved difficult to
ineffective in practice and did not entail
implement,
quantitative sales. Merck states that
the target prices
were established just above market prices and the
market share (30 %) held by non-participating vitamin C
producers meant that a significant proportion of the
market was unaffected by the arrangements. Thus,
Merck holds that the price achieved as a result of the
collusive arrangements was barely above the price
which would have been achieved if the arrangements
had not existed.

(667) The Commission considers

for

the

that

infringements
committed by producers
relevant periods
covered at least over 80 % of the world-wide and the
EEA market
for vitamins A, E, C, B2, B5, D3,
beta-carotene and carotinoids and had an actual impact
on these product markets in the EEA. Prices were not
only agreed but also implemented in each market.

the

(668) Roche argues that not all of the price increases observed
in the markets during the operation of the cartels were
attributable to the cartel activities nor were the price
declines observed in the markets following the cartel
periods attributable to a cessation of cartel activities.
to the observed price increases, Roche
With respect
believes that
for numerous economic-related reasons,
such as currency fluctuations, capacity constraints and
supply/demand changes, vitamin prices would have
increased substantially in the early 1990s regardless of
any cartel behaviour among vitamin manufacturers.
Similarly, Roche believes that the vast majority of price
the cartel periods may be
declines observed after
explained by economic factors unrelated to the cessation
of cartel activity, such as aggressive expansion into the
respective vitamin markets by Chinese producers.

(672)

(671) Contrary

argument,

to Merck’s

the Commission
considers that the significant increase in the price of
vitamin C between 1991 and 1995 must be interpreted
in the light of the fact that the cartel members agreed
on target prices, market share allocation and a reporting
and monitoring system (64). As in the case of the reply
to Roche’s arguments, the extent to which prices would
have been different without the cartel may remain a
matter for conjecture but the conscious implementation
of
the cartel agreements created a serious risk that
prices were higher than under normal conditions of
competition. Merck, for its part, provides no evidence to
refute this conclusion.

In conclusion, the Commission considers that the parties
concerned by the present Decision have not been able
to rebut
the
infringements on the relevant vitamin products market
in the EEA.

the finding as to the actual

impact of

The size of the relevant geographic markets

(669) Contrary

to Roche’s

the Commission
considers that the significant increase in the price of
vitamins A, E, C, B2, B5, D3, beta-carotene and
carotinoids during the operation of the cartels must be

argument,

(673) For the purposes of assessing gravity it is important to
infringement covered the
following its

note that each individual
whole of
creation, the whole of the EEA.

the common market and,

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Interim conclusion

(674) Taking into account

the nature of

the infringements
under scrutiny, their impact on the individual vitamin
product markets concerned and the fact that each one
and,
covered the whole of
the
following its creation,
the
Commission considers that the undertakings concerned
by the present Decision have committed very serious
infringements of Article 81(1) of the Treaty and 53(1)
of the EEA Agreement for each of which the likely fine
would be at least EUR 20 million.

the EEA in its entirety,

common market

(675) The Commission moreover,

the purposes of
determining the starting amount of the fines, takes into
consideration the size of each of the different vitamins
market.

for

(676) Merck argues

that

in the present case,

is not
to conclude
its
in respect of vitamin C should be
to the marginal

appropriate
infringement
considered as
involvement it had in these arrangements.

(cid:145)very serious(cid:146) due

the nature of

that

it

(677) The Commission rejects this approach. It is clear that
price and market sharing cartels, as defined in the
Commission’s guidelines on the method of
setting
fines (65) are considered very serious infringements of
the
Article 81(1). The particular characteristics of
infringement affecting the vitamin C market,
the
i.e.
impact it had on the market and the size of the relevant
geographic market, only reinforce this conclusion.
In
any case, the fact that involvement in a cartel may be
the case here, does not
only marginal which is not
modify the object of the cartel which in the present case
amounts to a very serious infringement, but only the
level of participation of an undertaking.

Differential treatment

the effective economic capacity of

(678) Within the category of very serious infringements, the
proposed scale of likely fines makes it possible to apply
differential treatment to undertakings in order to take
the
account of
offenders to cause significant damage to competition, as
well as to set the fine at a level which ensures it has
sufficient deterrent effect. The Commission notes that
this exercise seems particularly necessary where, as in
the present case, there is considerable disparity in the
size
an
of
infringement.

undertakings

participating

the

in

(680) For

this purpose undertakings can be divided into
groupings according to their relative importance in each
of the relevant vitamin product markets concerned. The
placement of an undertaking in a particular grouping is
subject to adjustment, where appropriate, to take into
the need to ensure effective
account
deterrence.

in particular

turnover.

(681) The Commission considers it appropriate to appraise
the relative importance of an undertaking in each of the
vitamin product markets concerned on the basis of their
is
respective worldwide
This
product
supported by the fact that each cartel was global
in
nature, the object of each was,
inter alia, to allocate
markets on a worldwide level, and thus to withhold
competitive reserves from the EEA market. Moreover,
the worldwide turnover of any given party to a
particular
its
contribution to the effectiveness of
that cartel as a
the instability which would
whole or, conversely, of
have affected that cartel had it not participated. The
comparison is made on the basis of
the worldwide
product turnover in the last complete calendar year of
the infringement (66).

an indication of

also gives

cartel

(682) The following section (recitals 683 to 696) sets out
factors for

separately for each vitamin the relevant
establishing the category applicable to each producer.

Vitamin A

(683)

It is evident from the table at section 1.2.6 that Roche
was the major producer of vitamin A in the worldwide
market. It is therefore placed in the first category. BASF
and Aventis, which had significantly lower market
shares in the worldwide market, are placed in the
second category.

for

the

(684) On the basis of the foregoing, the appropriate starting
point
infringement
relative
concerning the vitamin A market, taking account of the
categories identified as a result of applying the criterion
of an undertaking’s relative importance in the market
concerned, is as follows:

to the

fine

(cid:151) Roche: EUR 30 million,

(cid:151) BASF and Aventis: EUR 18 million.

Vitamin E

(679)

In the circumstances of this case, which involves several
undertakings, it is necessary in setting the basic amount
of the fines to take account of the specific weight and
therefore the impact of each undertaking’s offending
conduct on competition.

(685) The table at section 1.2.6 shows that Roche and BASF
were the two major producers of vitamin E in the
worldwide market. They are therefore placed in the first
category. Eisai and Aventis, which had significantly
lower market shares in the worldwide market, less than
a third than that of Roche, are placed in the second
category.

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for

the

(686) On the basis of the foregoing, the appropriate starting
infringement
relative
point
concerning the vitamin E market, taking account of the
categories identified as a result of applying the criterion
of an undertaking’s relative importance in the market
concerned, is as follows:

to the

fine

for

the

(692) On the basis of the foregoing, the appropriate starting
infringement
relative
point
concerning the vitamin C market, taking account of the
categories identified as a result of applying the criterion
of an undertaking’s relative importance in the market
concerned, is as follows:

to the

fine

(cid:151) Roche and BASF: EUR 35 million,

(cid:151) Roche and Takeda: EUR 30 million,

(cid:151) Eisai and Aventis: EUR 10,5 million.

(cid:151) BASF and Merck: EUR 7,5 million.

Vitamin B2

Vitamin D3

(687) Roche was the major producer of vitamin B2 in the
worldwide market
is
therefore placed in the first category. BASF and Takeda,
which had significantly lower market shares in the
worldwide market, close to or less than half that of
Roche, are placed in the second category.

(see table at section 1.2.6).

It

for

the

(688) On the basis of the foregoing, the appropriate starting
infringement
relative
point
concerning the vitamin B2 market, taking account of
the categories identified as a result of applying the
criterion of an undertaking’s relative importance in the
market concerned, is as follows:

to the

fine

(cid:151) Roche: EUR 20 million,

(693)

It is clear from the table at section 1.2.6 that Roche and
Solvay Pharmaceuticals were the two major producers
of vitamin D3 in the worldwide market with market
shares of 40 % and 32 %,
respectively. They are
therefore placed in the first category. BASF and Aventis,
which had much lower market shares in the worldwide
market, 15 % and 9 % respectively, are placed in the
second category.

for

the

(694) On the basis of the foregoing, the appropriate starting
point
infringement
relative
concerning the vitamin D3 market, taking account of
the categories identified as a result of applying the
criterion of an undertaking’s relative importance in the
market concerned, is as follows:

to the

fine

(cid:151) BASF and Takeda: EUR 10 million.

(cid:151) Roche and Solvay Pharmaceuticals: EUR 10 million,

Vitamin B5

(689) The table at section 1.2.6 shows that Roche and Daiichi
were the two major producers of vitamin B5 in the
worldwide market. They are therefore placed in the first
category. BASF, which had significantly lower market
shares in the worldwide market, almost half than that of
Roche, is placed in the second category.

for

the

(690) On the basis of the foregoing, the appropriate starting
point
infringement
relative
concerning the vitamin B5 market, taking account of
the categories identified as a result of applying the
criterion of an undertaking’s relative importance in the
market concerned, is as follows:

to the

fine

(cid:151) Roche and Daiichi: EUR 20 million,

(cid:151) BASF: EUR 14 million.

Vitamin C

(691)

It is evident from the table at section 1.2.6 that Roche
and Takeda were the two major producers of vitamin C
in the worldwide market with market shares of 40 %
and 24 %, respectively. They are therefore placed in the
first category. BASF and Merck, which had much lower
market shares in the worldwide market,
less than 9 %
each, are placed in the second category.

(cid:151) BASF and Aventis: EUR 4 million.

Beta-carotene

(695) Given the market characteristics of

the beta-carotene
worldwide market,
essentially two main producers
present in the product market, it is not suitable in this
particular case to make separate categories between the
companies for the purpose of setting the appropriate
starting point for the fine relative to the infringement
concerning the beta-carotene market. This starting point
is set at EUR 20 million for Roche and BASF.

Carotinoids

(696) Given the market characteristics of

the carotinoids
worldwide market,
essentially two main producers
present in the product market, it is not suitable in this
particular case to make separate categories between the
companies for the purpose of setting the appropriate
starting point for the fine relative to the infringement
concerning the carotinoids market. This starting point is
set at EUR 20 million for Roche and BASF.

Sufficient deterrence

(697)

In order to ensure that the fine has a sufficient deterrent
the Commission will determine whether any
effect

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further adjustment of the starting point is needed for
any undertaking.

Duration of the infringements

(700) This section sets out separately for each vitamin the

duration of the infringement relevant to each producer.

Vitamin A

(698)

cases of BASF, Roche

the
and Aventis,
In the
the appropriate starting
Commission considers
point
the
for a fine resulting from the criterion of
relative importance in the market concerned requires
further upward adjustment to take account of their size
and their overall resources.

that

(699) On the basis of

the

foregoing,

the Commission
considers that the need for deterrence requires that the
starting point of their respective fines for each relevant
vitamin market, as determined under recitals 683 to
696, should be increased as follows:

BASF

(cid:151) vitamin A:

by 100 % to EUR 36 million,

(cid:151) vitamin E:

by 100 % to EUR 70 million,

(cid:151) vitamin B2: by 100 % to EUR 20 million,

(cid:151) vitamin B5: by 100 % to EUR 28 million,

(cid:151) vitamin C:

by 100 % to EUR 15 million,

(cid:151) Vitamin D3: by 100 % to EUR 8 million,

(cid:151) beta-

carotene:

by 100 % to EUR 40 million,

(cid:151) carotinoids: by 100 % to EUR 40 million,

Roche

(cid:151) vitamin A:

by 100 % to EUR 60 million,

(cid:151) vitamin E:

by 100 % to EUR 70 million,

(cid:151) vitamin B2: by 100 % to EUR 40 million,

(cid:151) vitamin B5: by 100 % to EUR 40 million,

(cid:151) vitamin C:

by 100 % to EUR 60 million,

(cid:151) vitamin D3: by 100 % to EUR 20 million,

(cid:151) beta-

carotene:

by 100 % to EUR 40 million,

(cid:151) carotinoids: by 100 % to EUR 40 million,

Aventis

(cid:151) vitamin A:

by 100 % to EUR 36 million,

(cid:151) vitamin E:

by 100 % to EUR 21 million,

(cid:151) vitamin D3: by 100 % to EUR 8 million.

(701) The Commission considers

the EEA Agreement

that Roche; BASF and
Aventis infringed Article 81(1) of the Treaty and Article
53(1) of
from September 1989
until February 1999 with regard to the vitamin A
market. They committed a long-term infringement of
nine years and six months. The starting amount of the
fines determined for gravity (67) are therefore increased
by 90 % for each company.

Vitamin E

(702) The Commission considers

the EEA Agreement

that Roche, BASF and
Aventis infringed Article 81(1) of the Treaty and Article
53(1) of
from September 1989
until February 1999 with regard to the vitamin E
market. They committed a long-term infringement of
nine years and six months. The starting amount of the
fines determined for gravity (68) are therefore increased
by 90 % for each company.

(703) Eisai

initiated its participation in January 1991 and
therefore committed a long-term infringement of eight
years. The starting amount of its fine determined for
gravity (69) is therefore increased by 80 %.

Vitamin B2

(704) The Commission considers

that Roche and BASF
infringed Article 81(1) of the Treaty and Article 53(1) of
the EEA Agreement from July 1991 until September
1995 with regard to the vitamin B2 market. They
four years and three
committed an infringement of
months, i.e. of medium duration. The starting amount
the fines determined for gravity (70) are therefore
of
increased by 40 % for each company.

(705) Takeda committed an infringement of medium duration
of three years and nine months, since it initiated its
participation in January 1992. The starting amount of
the fine determined for gravity (71) is therefore increased
by 35 %.

Vitamin B5

(706) The Commission considers

that Roche, BASF and
Daiichi infringed Article 81(1) of the Treaty and Article
53(1) of the EEA Agreement from January 1991 until

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February 1999 with regard to the vitamin B5 market.
They committed a long-term infringement of eight
years. The starting amount of the fines determined for
gravity (72) are therefore increased by 80 % for each
company.

Vitamin C

(707) The Commission considers that Roche, BASF, Merck
and Takeda infringed Article 81(1) of the Treaty and
Article 53(1) of the EEA Agreement from January 1991
until August 1995 with regard to the vitamin C market.
They committed an infringement of four years and eight
months, i.e. of medium duration. The starting amount
the fines determined for gravity (73) are therefore
of
increased by 45 % for each company.

Vitamin D3

(708) The Commission considers that Roche, BASF, Solvay
and Aventis infringed Article 81(1) of the Treaty and
Article 53(1) of the EEA Agreement from January 1994
until June 1998 with regard to the vitamin D3 market.
They committed an infringement of four years and six
months, i.e. of medium duration. The starting amount
the fines determined for gravity (74) are therefore
of
increased by 40 % for each company.

Beta-carotene

(709) The Commission considers

that Roche and BASF
infringed Article 81(1) of the Treaty and Article 53(1) of
the EEA Agreement
from September 1992 until
December 1998 with regard to the beta-carotene
market. They committed a long-term infringement of six
years and four months. The starting amount of the fines
determined for gravity (75) are therefore increased by
60 % for each company.

Carotinoids

(710) The Commission considers

that Roche and BASF
infringed Article 81(1) of the Treaty and Article 53(1) of
the EEA Agreement from May 1993 until December
1998 with regard to the carotinoids market. They
committed a long-term infringement of five years and
fines
eight months. The
determined for gravity (76) are therefore increased by
55 % for each company.

starting amount of

the

Conclusion on the basic amounts

(711) The Commission accordingly sets the basic amounts of

the fines as follows:

F. Hoffmann-La Roche AG

(cid:151) vitamin A:

EUR 114 million,

(cid:151) vitamin E:

EUR 133 million,

(cid:151) vitamin B2: EUR 56 million,

(cid:151) vitamin B5: EUR 72 million,

(cid:151) vitamin C:

EUR 87 million,

(cid:151) vitamin D3: EUR 28 million,

(cid:151) beta-

carotene:

EUR 64 million,

(cid:151) carotinoids: EUR 62 million,

BASF AG

(cid:151) vitamin A:

EUR 68,4 million,

(cid:151) vitamin E:

EUR 133 million,

(cid:151) vitamin B2: EUR 28 million,

(cid:151) vitamin B5: EUR 50,4 million,

(cid:151) vitamin C:

EUR 21,75 million,

(cid:151) vitamin D3: EUR 11,2 million,

(cid:151) beta-

carotene:

EUR 64 million,

(cid:151) carotinoids: EUR 62 million,

Aventis

(cid:151) vitamin A:

EUR 68,4 million,

(cid:151) vitamin E:

EUR 39,9 million,

(cid:151) vitamin D3: EUR 11,2 million,

Takeda Chemical Industries Ltd

(cid:151) vitamin B2: EUR 13,5 million,

(cid:151) vitamin C:

EUR 43,5 million,

Solvay Pharmaceuticals BV

(cid:151) vitamin D3: EUR 14 million,

Merck KgaA

(cid:151) vitamin C:

EUR 10,875 million,

Daiichi Pharmaceutical Co. Ltd

(cid:151) vitamin B5: EUR 36 million,

Eisai Co. Ltd

(cid:151) vitamin E:

EUR 18,9 million.

2.3.2.3. Aggravating circumstances

Role of leader in the infringements

(712) The Commission considers that Roche and BASF were
collusive

instigators

leaders

joint

and

the

of

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arrangements affecting the common range of vitamin
products they produced and therefore their role in the
different cartels are considered an aggravating factor (77).

set out to eliminate all effective competition between
them in the Community and EEA across almost the
vitamins (78). Roche’s
whole
particular role as prime mover and main beneficiary of
these collusive arrangements is to be noted.

important

range

of

(713) A key result of the anti-competitive agreements in each
of the vitamin product markets was to combine the
market power that the participants held in each of the
individual markets. This was most effective for those
companies which produced and sold the widest range of
vitamin products, i.e. Roche and BASF.

(718) This aggravating circumstance justifies an increase of
50 % in the basic amount of the fines to be imposed on
Roche and an increase of 35 % in the basic amount of
the fines to be imposed on BASF for their infringements
affecting the vitamin A, E, B2, B5, C, D3, beta-carotene
and carotinoids markets.

advantages.

(714) As suppliers of a wide range of vitamin products these
companies
In
enjoyed a number of
particular their position in relation to their customers
was stronger than companies selling a single or limited
number of products, since they were able to provide a
range of products
greater
proportion of their business. In addition, they enjoyed
greater flexibility to structure prices, promotions and
discounts and had a much greater potential for tying.
They were also able to realise greater economies of scale
and scope in their sales and marketing activities. Finally,
any implicit (or explicit) threat of a refusal to supply
would have been much more credible.

and accounted for

a

(715) The strength of these advantages on the competitive
structure of a market depends on factors which were
found in all the vitamins market. Downstream agents
(wholesalers,
intermediaries and large final consumers)
purchase, to a large extent, a range of vitamin products
all of which were supplied by the participants in the
collusive arrangements. The
is
in this respect. For all vitamin
particularly relevant
products the combined market share of
the vitamin
producers was above 70 % and in certain products close
to 100 %. The relative strength of competitors in each
of
therefore poor or
the
non-existent.

vitamins market was

case of pre-mixers

(716) As a result of possessing a broad range of products in
separate but closely related product markets, the overall
ability of these companies to implement and maintain
the anti-competitive agreements into which they entered
increased considerably.

(717) Both major European producers effectively formed a
common front
in conceiving and implementing the
collusive arrangements with the Japanese and other
European producers. Roche set out
to implement a
strategic plan to dominate and control the world market
for
it produced, which
constituted a very substantial part of all commercially
in combination with BASF,
available vitamins. Roche,

the vitamin products

all

2.3.2.4. Attenuating circumstances

An exclusively passive or (cid:145)follow my leader(cid:146) role in
the infringement

(719) With regard to the vitamin C market, Merck argues that
its role was limited to following the instructions issued
by Roche and Takeda and that it generally played only a
subsidiary role in the vitamin C talks.

(720) Merck must be regarded as an active member of the
cartel in the vitamin C market. Its representatives were
present at several meetings of the cartel. It was involved
in discussions on prices and the monitoring of sales
volumes (79). Its active involvement in price discussions
also contradicts Merck’s argument that it was only a
price follower. Merck’s participation was part of
the
overall scheme of the cartel to control the worldwide
market and to include the most important producers.

(721) With regard to the vitamin E market, Eisai submits that
it was a peripheral player in the cartel arrangements set
up by the European producers and did not receive the
detailed information shared between these. Neither
increases on individual
could it
contracts with independent
customers due
distributors which took no part in the agreement.

implement price
to its

through Roche

(722) The Commission considers that Eisai was an active
member of the cartel in the vitamin E market. The fact
that it conducted most of its contacts with the European
producers
independent
distributors handled most of its sales in the EEA did not
make it less of an active player in the cartel. As is set
out in recitals 240 to 242, Eisai’s attempts to present
itself as a passive member
is
contradicted by the documentation supplied to the
Commission.

infringement

in this

that

and

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(723) There are therefore no attenuating circumstances in the
case of Merck or Eisai that would justify a reduction of
the fine imposed.

it never attended any of

(724) With regard to the vitamin D3 market, Aventis submits
that Rh(cid:244)ne-Poulenc’s role was limited to providing, at
Solvay’s request, its historic volumes data to Solvay and
the tripartite cartel
that
Its
meetings and played an exclusively passive role.
small
lack of active
participation meant that Rh(cid:244)ne-Poulenc was not even
granted an independent market quota, but rather its
allocation was always included under Solvay’s.

role in this market and its

in the

a passive
role
It did not attend any of

(725) The Commission takes into account that Rh(cid:244)ne-Poulenc
vitamin D3
played only
the cartel
infringement.
meetings and was not allocated an individual market
share. This attenuating circumstance justifies a decrease
of 50 % in the basic amount of the fines to be imposed
on Aventis for its infringement affecting the vitamin D3
market.

Non-implementation in practice of the agreements
in question

(726) With regard to the vitamin C market, Merck argues that
at no point did it restrict its production or sales to
comply with the arrangements and did not do so either
in terms of the prices agreed or the quotas allocated and
cites a number of documents in the Commission’s file to
this effect.

taken into account as a mitigating circumstance when
determining the amount of the fine to be imposed. An
undertaking which
its
despite
competitors follows a more or less independent policy
on the market may simply be trying to exploit the cartel
v
for
Commission, [1998] ECR II-925, paragraph 230).

(Case T-308/94 Cascades

its own benefit.

colluding with

(729) With regard to the implementation of the agreements
on quantities, it is clear that the members of the cartels
considered the quantities allocated to them as
the
minimum quantities. As long as every party was able to
sell at least the quantities allocated, the agreement was
respected. This was the case for the cartels affecting the
vitamin C and B5 markets.

Termination of the infringement as soon as the
Commission intervenes

(730) Merck argues that since it ended its participation in the
collusive arrangements in vitamin C more than four
years before
its own
investigation Merck should be entitled to a reduction of
its fine.

the Commission launched

(731)

In its guidelines on fines, the Commission has indicated
that it will reduce the basic amount of the fine when
offenders terminate an infringement as soon as the
Commission intervenes, and in particular when it carries
out inspections.

and

volumes. Amongst

(727) With regard to the vitamin B5 market, Daiichi argues
that it did not always comply with the agreements since
it had economic incentives to deviate from the agreed
prices
the
competition it faced from Chinese producers and the
harm it might inflict on its customers which produced
pre-mixes and were direct competitors of Roche and
BASF in this market. This regular failure to apply price
targets
of
limited
market-sharing output restrictions mitigated the market
impact of the agreements, claims Daiichi.

implementation

these were

and

the

(732) The Commission considers

if

that

the undertakings
ended the infringement on their own initiative before
the Commission intervened, as Merck did in the case of
in vitamin C, this unilateral action by the
the cartel
undertaking cannot be construed as constituting an
attenuating circumstance. In order to benefit from an
attenuating circumstance the undertaking has to show
that its voluntary action to terminate the infringement is
directly linked to the Commission’s action. There are
therefore no grounds under the Commission’s guidelines
on fines to reduce Merck’s fine in this respect.

(728) The Commission notes

the implementation of
that
agreements on target prices does not necessarily require
that these exact prices be applied. The agreements can
be said to be implemented when the parties fix their
prices in order to move them in the direction of the
target agreed upon. This was the case for the cartels
affecting the vitamin C and B5 markets. The fact that an
undertaking which has been proved to have participated
in collusion on prices with its competitors did not
behave on the market in the manner agreed with its
competitors is not necessarily a matter which must be

Other attenuating circumstances

(733) Merck states that

that

its motive for participating in the
vitamin C arrangements was not to realise profits but
it manufactured the product at a loss
rather
its
because it was essential
industrial
in Darmstadt,
Germany. The fact that (cid:145)Merck had a specific interest in
continuing to produce vitamin C which was unrelated
to any intention to realise profits(cid:146) should be regarded as
a attenuating factor in the fixing of the fine.

for the maintenance of

infrastructure at

its plant

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(734) The Commission

rejects Merck’s
argument. The
in general, either
Commission does not consider that,
non-benefit from a cartel or any economic disadvantage
suffered due to participation in a cartel, constitutes
attenuating circumstances in the fixing of the fine.

(740)

In addition, Aventis points out that it had put an end to
its involvement in the illegal activities prior to disclosing
their existence to the Commission, provided all
the
evidence available to it, maintained continuous and
complete cooperation throughout the investigation and
did not instigate the illegal conduct.

of

conduct(cid:146)

(735) Merck argues that the adoption by its management of a
(cid:145)code
regarding
for
competition rules on 12 September 2000 should be
considered as a further attenuating factor. Eisai equally
it own legal compliance programme,
submits
that
introduced in 1999,
considered as an
attenuating circumstance.

should be

employees

its

(736) The Commission welcomes

to

all

raise

steps

by
undertakings
their
employees of existing competition rules. Nevertheless,
neither Eisai’s nor Merck’s initiative can dispense the
Commission from its duty to sanction the very serious
infringement of competition rules committed.

awareness

amongst

taken

(737) The Commission concludes that, with the exception of
circumstances
Aventis,
applicable to the participants
in the infringements
affecting the vitamin A, E, B2, B5, C, D3, beta-carotene
and carotinoids markets.

no mitigating

there

are

2.3.2.5. Application of the leniency notice

stages of

at different

(738) The addressees of the present Decision have cooperated
with the Commission,
the
investigation and in relation to different periods covered
by the investigation,
into the infringements for the
purpose of receiving the favourable treatment set out in
the Commission’s leniency notice. In order to meet the
legitimate expectations of the undertakings concerned as
to the non-imposition or reduction of the fines on the
basis of their cooperation, the Commission examines in
the following section whether the parties concerned
satisfied the conditions set out in the notice.

Non-imposition of a fine or a very substantial
reduction of its amount and/or substantial
reduction in a fine

(741) The Commission considers that Aventis was indeed the
first undertaking to adduce decisive evidence on the
existence of an international cartel affecting the EEA in
the vitamin A and vitamin E markets. This decisive
evidence was provided in the Statements made by
Aventis on 19 and 25 May 1999. It also met all other
conditions as set out in section B of the leniency notice.

(742) On the basis of

the

foregoing,

the Commission
concludes that Aventis fulfils the conditions set out in
section B of the leniency notice and grants Aventis a
100 % reduction of
the fine that would have been
imposed if it had not cooperated with the Commission.

(743) The Commission considers

that Roche and BASF,
through the principal material
submitted to the
Commission between 2 June 1999 and 30 July 1999,
were the first to provide the Commission with decisive
evidence of
arrangements
affecting the vitamin B2, B5, C, D3, beta-carotene and
carotinoids markets. The evidence submitted by both
Roche and BASF in relation to the cartels in vitamins A
and E was very substantial and was provided at an early
stage in the Commission’s procedure.

existence of

cartel

the

(744) At the same time, the Commission considers that Roche
and BASF acted as instigators or played a determining
role in the illegal activities affecting the vitamin A, E,
B2, B5, C, D3, beta-carotene and carotinoids product
markets, as described above (see recitals 567 to 569 and
584). Therefore neither of them meets condition (e) of
section B of the leniency notice and they can not benefit
from any reduction under section B or C of that notice
even if they were to meet the other conditions set out
therein.

(739) Aventis submits that it was the first producer to freely
disclose the existence of the cartels in vitamins A and E
to law enforcement officials. Only after learning that
Aventis had voluntarily offered to cooperate with the
United States Department of Justice Antitrust Division’s
Grand Jury, did Roche
and BASF rush to offer
cooperation with the Commission, as well as with the
USA and Canada.

(745) Whilst Roche and BASF were the first

to adduce
decisive evidence of the cartel arrangements affecting
and
vitamin B2, B5, C, D3, beta-carotene
the
carotinoids markets, thereby excluding other companies
from meeting this condition, they also were instigators
or played a determining role in these illegal activities.
Therefore, no undertaking has satisfied in full conditions
(a) to (e) or (b) to (e) of section B of the leniency notice

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with regard to the cartel arrangements affecting the
vitamin B2, B5, C, D3, beta-carotene and carotinoids
markets and consequently no undertaking is eligible to
benefit from a reduction under section B or C of the
notice.

Significant reduction of a fine

(746) Under Section D of the Notice an undertaking which
in
from a significant
the fine that would

does not comply with all
section B or C can still benefit
reduction of 10 % to 50 % of
otherwise have been imposed where (for example):

the conditions set out

(cid:151) before a Statement of Objections is sent, it provides
the Commission with information, documents or
to
other
establishing the existence of the infringement,

evidence which materially contribute

(cid:151) after receiving a Statement of Objections, it informs
substantially
the Commission that
contest the facts on which the Commission bases its
objections.

it does not

(747) Roche and BASF provided evidence and documents,
including material originating from the period of time
to which the infringements pertain, as well as detailed
corporate statements. Prior to these submissions both
Roche and BASF had contacted the Commission, on 4
and 6 May 1999 respectively, to indicate their intention
to cooperate with its investigations.

(748) The documents referred to above provided detailed
evidence of
the cartel
the organisation structure of
arrangements affecting the vitamin A, E, B2, B5, C, D3,
beta-carotene and carotinoids markets and contributed
decisively to establishing and/or confirming essential
aspects of these infringements (see also recital 743).

(749) Daiichi Pharmaceutical Co. Ltd, Solvay Pharmaceuticals
BV and Takeda Chemical
Industries Ltd provided
evidence and documents, in particular detailed corporate
statements, which were not
the object of a specific
request by the Commission on 9 July 1999, 14
September 1999 and 7 September 1999 respectively.
Prior to these submissions each of these undertakings
had previously contacted the Commission to indicate
their intention to cooperate. Daiichi on 9 June 1999,
Solvay on 21 June 1999 and Takeda on 29 June 1999.

(750) The documents referred to above gave details of the
organisation and structure of the cartels in vitamins B5
and
(Daiichi), D3 (Solvay), B2 and C (Takeda)
contributed
and/or
infringements
confirming important aspects of
committed in each of these vitamin product markets.

substantially

establishing

the

to

October 1999 it submitted a corporate statement and
in
additional documentation in relation to the cartel
vitamin E which were not
the object of a specific
request by the Commission. This evidence provided
details of the organisation and structure of the cartel in
vitamin E, included statements by former employees of
the undertaking and contributed to establishing and/or
confirming significant aspects of
infringement.
Nevertheless,
submission the
time of
Commission was in possession of decisive evidence
that previously
concerning this cartel,
submitted by Roche and BASF.

in particular

the

the

the

at

(752) Merck KgaA indicated its intention to cooperate with
the Commission on 26 October 1999, following the
receipt of a request for information under Article 11 of
Regulation 17 related to its activities in the vitamin H
market, dated 20 August 1999. Merck submitted
documentation concerning the cartel
in vitamin H
which was not the object of a specific request by the
Commission. It did not do so for the cartel in vitamin
C. In its reply to the Statement of Objections, Merck did
confirm that it did not substantially contest the facts on
which the Commission based its allegations in the
vitamin C cartel.

(753) Further to its submissions of 19 and 25 May 1999 (80),
Aventis SA confirmed that
substantially
contest the facts on which the Commission based its
allegations in the vitamin D3 cartel.

it did not

(754) F. Hoffmann-La Roche AG, BASF AG, Aventis SA,
Solvay
Pharmaceuticals BV, Merck KgaA, Daiichi
Pharmaceutical Co. Ltd, Eisai Co. Ltd and Takeda
Chemical
the
Commission before the Statement of Objections was
adopted, materially contributed to establishing the
existence of
the infringements they were a party to
and/or did not substantially contest the facts on which
the Commission based its allegations.

cooperated with

Industries

Ltd

(755) Given that any cooperation under the leniency notice
must be voluntary and in particular outside the exercise
of any investigatory power, the Commission considers
that a significant part of the information provided by
these undertakings in fact was an integral part of their
for
replies
information.
the
regarded as a voluntary
undertakings
contribution within the meaning of the leniency notice
only where it went beyond that requested under Article
11 of Regulation No 17.

to the Commission’s

requests
by

information

therefore

The
is

provided

formal

(751) Eisai Co. Ltd contacted the Commission on 27 June
1999 and indicated its intention to cooperate. On 12

(756) Solvay argues that it was the first undertaking to adduce
decisive evidence of the existence of a cartel in vitamin
D3 through its Statement of 29 June 1999.

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(757) The Commission must dismiss this argument. Solvay’s
statement, of 29 June 1999, did not contain
first
decisive evidence of the cartel in vitamin D3. It simply
provided an overview of the vitamin D3 market in the
EEA and a number of indications that some form of
In its second
market coordination had taken place.
statement, of 14 September 1999, Solvay provided
detailed information that may have been considered to
constitute
this was
submitted after Roche’s statement of 30 July 1999
which did contain detailed information on the collusive
practices
the
infringement.

and constitutes decisive

evidence. However,

evidence of

decisive

(758) Merck argues that it had offered to cooperate with the
Commission regarding any contact in respect of vitamin
C before the Statement of Objections had been adopted.
According to Merck, during the course of a meeting
with Commission officials on 26 October 1999 it was
made clear to the undertaking that there was no interest
in contributions from Merck regarding these contacts.
Merck further argues that this cannot be invoked to
Merck’s disadvantage.

(759) The Commission must dismiss this argument. Firstly,
Merck does not provide any evidence in support of its
claim. There is no comment on the substance of the
meeting referred to in the subsequent exchange of
correspondence with the Commission. Secondly, Merck
was at full liberty to cooperate with the Commission in
regard to the vitamin C cartel at an earlier time than it
did. As mentioned above (81) it submitted evidence in
writing to the Commission concerning the vitamin H
cartel and could have equally submitted any evidence in
its possession in relation to the cartel in vitamin C. The
decision to cooperate with the Commission and the
actions taken by an undertaking to this effect ultimately
must be a unilateral one by the undertaking.

(760) On the basis of

the

foregoing,

the Commission
concludes that F. Hoffmann La Roche AG fulfils the
conditions set out in section D(2) first indent of the
Leniency Notice and grants F. Hoffmann La Roche AG a
50 % reduction of
the fine that would have been
imposed if it had not cooperated with the Commission.

(761) On the basis of

the

foregoing,

the Commission
concludes that BASF fulfils the conditions set out in
the leniency notice and
section D(2)
grants BASF a 50 % reduction of the fine that would
have been imposed if it had not cooperated with the
Commission.

indent of

first

(762) On the basis of

the Commission
concludes that Solvay Pharmaceuticals BV fulfils the
conditions set out in section D(2), first indent, of the

foregoing,

the

leniency notice and grants Solvay Pharmaceuticals BV a
the fine that would have been
35 % reduction of
imposed if it had not cooperated with the Commission.

(763) On the basis of

the

foregoing,

the Commission
concludes that Merck KgaA fulfils the conditions set out
in section D(2), second indent, of the leniency notice
and grants Merck KgaA a 15 % reduction of the fine
that would have been imposed if it had not cooperated
with the Commission.

(764) On the basis of

the

foregoing,

the Commission
concludes that Daiichi Pharmaceutical Co. Ltd fulfils the
conditions set out in section D(2), first indent, of the
leniency notice and grants Daiichi Pharmaceutical Co.
Ltd a 35 % reduction of the fine that would have been
imposed if it had not cooperated with the Commission.

(765) On the basis of

the

foregoing,

the Commission
concludes that Eisai Co. Ltd fulfils the conditions set out
in section D(2), first indent, of the leniency notice and
grants Eisai Co. Ltd a 30 % reduction of the fine that
would have been imposed if it had not cooperated with
the Commission.

(766) On the basis of theforegoing, the Commission concludes
that Takeda Chemical
the
conditions set out in section D(2), first indent, of the
leniency notice and grants Takeda Chemical Industries
Ltd a 35 % reduction of the fine that would have been
imposed if it had not cooperated with the Commission.

Industries

fulfils

Ltd

(767) On the basis of

the

foregoing,

the Commission
concludes that Aventis SA fulfils the conditions set out
in section D(2), second indent, of the leniency notice
and grants Aventis SA a 10 % reduction of the fine that
the
imposed
would
infringement in vitamin D3 if it had not cooperated
with the Commission.

relation

been

have

to

in

Conclusion on the application of the leniency
notice

(768)

In conclusion, with regard to the nature of
their
cooperation and in the light of the conditions as set out
in the leniency notice, the Commission grants to the
following
addressees of
reductions of their respective fines:

the present Decision the

(cid:151) F. Hoffmann-La Roche AG: a reduction of 50 %,

(cid:151) BASF AG: a reduction of 50 %,

(cid:151) Aventis SA: a reduction of 100 % and 10 %,

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(cid:151) Takeda Chemical

Industries Ltd: a reduction of

35 %,

(cid:151) Solvay Pharmaceuticals BV: a reduction of 35 %,

(cid:151) Merck KgaA: a reduction of 15 %,

(cid:151) Daiichi Pharmaceutical Co. Ltd: a reduction of 35 %,

(cid:151) Eisai Co. Ltd: a reduction of 30 %.

in the EEA market. In the same way, the US antitrust
authorities only exercise jurisdiction to the extent that
the conduct has a direct and intended effect on US
commerce.

(774) Finally, the possibility that undertakings may have been
required to pay damages in civil actions is of no
relevance. Payments of damages in civil
law actions
which have the objective of compensating for the harm
caused by cartels to individual companies or consumers
cannot be compared with public law sanctions for
illegal behaviour.

2.3.2.6. Sanctions imposed in other jurisdictions

present proceedings

2.3.2.7. The final amounts of the fines imposed in the

(769) Hoffmann La Roche

and Merck submit

the
Commission should take account of, and deduct from
any fine, the sanctions imposed on them for the same
conduct in the United States of America and in Canada.

that

(770) Hoffmann La Roche submits

that

in this case the
Commission should take account of penalties imposed
by the US and Canadian authorities, because the acts
challenged by the Commission and these authorities are
the same. It argues that the fines already paid should be
set against any additional fines to be imposed by the
to
Commission.
ensure the deterrent effect of a fine has already been
met
imposed by US and
Canadian authorities.

In Roche’s view, any requirement

in its case by the fines

it has already paid which,

(771) For its part, Merck argues that if the Commission were
to set the fine without considering the fines and civil
damages
it holds, have
generally taken account of the foreign element of the
agreement
a
disproportionate financial burden, in particular because
it did not make any profit by taking part
in the
agreements.

question, Merck would

suffer

in

(772) The Commission rejects all of the arguments presented
It does not consider that fines
by Roche and Merck.
including in the United States of
imposed elsewhere,
America, have any bearing on the fines to be imposed
for infringing European competition rules. The exercise
by the United States of America (or any third country)
of its (criminal) jurisdiction against cartel behaviour can
the Commission’s
in no way
jurisdiction under Community competition law.

limit or

exclude

(773) More importantly,

it

is in any case untrue that

the
Commission was intending to sanction it for the same
facts as the US courts had. By virtue of the principle of
territoriality, Article 81 of
the Treaty is limited to
restrictions of competition in the common market and
Article 53 EEA is limited to restrictions of competition

(775)

the fines to be imposed, pursuant

In conclusion,
to
Article 15(2)(a) of Regulation No 17, are to be as
follows:

(cid:151) F. Hoffmann-La Roche AG:

EUR 462 million

(cid:151) BASF AG:

(cid:151) Aventis SA:

EUR 296,16
million

EUR 5,04 million

(cid:151) Takeda Chemical Industries Ltd: EUR 37,06 million

(cid:151) Solvay Pharmaceuticals BV:

EUR 9,1 million

(cid:151) Merck KgaA:

EUR 9,24 million

(cid:151) Daiichi Pharmaceutical Co. Ltd: EUR 23,4 million

(cid:151) Eisai Co. Ltd:

EUR 13,23 million,

HAS ADOPTED THIS DECISION:

Article 1

The following undertakings have infringed Article 81(1)

1.
of the Treaty and Article 53(1) of the EEA Agreement:

(a) F. Hoffmann-La Roche AG by participating in agreements
affecting the Community and EEA markets for vitamins A,
E, B1, B2, B5, B6, C, D3, H, folic acid, beta-carotene and
carotinoids;

(b) BASF AG by participating in agreements affecting the
Community and EEA markets for vitamins A, E, B1, B2,
B5, C, D3, H, beta-carotene and carotinoids;

(c) Aventis SA by participating in agreements affecting the
Community and EEA markets for vitamins A, E, and D3;

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(d) Lonza AG by participating in agreements affecting the

(cid:151) vitamin B5: from September 1991 to February 1999,

Community market for vitamin H;

(e) Solvay Pharmaceuticals BV by participating in agreements
affecting the Community and EEA markets for vitamin D3;

(cid:151) vitamin C: from January 1991 to August 1995,

(cid:151) vitamin B6: from January 1991 to June 1994,

(f) Merck KgaA by participating in agreements affecting the

Community and EEA markets for vitamins C and H;

(g) Daiichi

Pharmaceutical Co.

in
agreements affecting the Community and EEA markets for
vitamins B5 and B6;

Ltd by participating

(cid:151) vitamin D3: from January 1994 to June 1998,

(cid:151) vitamin H: from October 1991 to April 1994,

(cid:151) folic acid: from January 1991 to June 1994,

(cid:151) beta-carotene:

from September 1992 to December

1998,

(h) Eisai Co. Ltd by participating in agreements affecting the

Community and EEA market for vitamin E;

(cid:151) carotinoids: from May 1993 to December 1998;

(i) Kongo Chemical Co. Ltd by participating in agreements

affecting the Community market for folic acid;

(b) BASF AG, with respect to:

(cid:151) vitamin A: from September 1989 to February 1999,

(j) Sumitomo Chemical Co. Ltd by participating in agreements

affecting the Community market for vitamin H;

(cid:151) vitamin E: from September 1989 to February 1999,

(k) Sumika Fine Chemicals Ltd by participating in agreements

affecting the Community market for folic acid;

(l) Takeda Chemical

in
agreements affecting the Community and EEA markets for
vitamins B1, B2, B6, C, and folic acid; and

Industries Ltd by participating

(cid:151) vitamin B1: from January 1991 to June 1994,

(cid:151) vitamin B2: from July 1991 to September 1995,

(cid:151) vitamin B5: from September 1991 to February 1999,

(cid:151) vitamin C: from January 1991 to August 1995,

(m) Tanabe Seiyaku Co. Ltd by participating in agreements

affecting the Community market for vitamin H.

(cid:151) vitamin D3: from January 1994 to June 1998,

2.

The duration of the infringements was as follows:

(a) F. Hoffmann-La Roche AG, with respect to:

(cid:151) vitamin H: from October 1991 to April 1994,

(cid:151) beta-carotene:

from September 1992 to December

1998,

(cid:151) carotinoids: from May 1993 to December 1998;

(cid:151) vitamin A: from September 1989 to February 1999,

(c) Aventis SA, with respect to:

(cid:151) vitamin E: from September 1989 to February 1999,

(cid:151) vitamin A: from September 1989 to February 1999,

(cid:151) vitamin B1: from January 1991 to June 1994,

(cid:151) vitamin E: from September 1989 to February 1999,

(cid:151) vitamin B2: from July 1991 to September 1995,

(cid:151) vitamin D3: from January 1994 to July 1998;

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(d) Takeda Chemical Industries Ltd, with respect to:

Article 2

(cid:151) vitamin B1: from January 1991 to June 1994,

(cid:151) vitamin B2: from January 1992 to September 1995,

The undertakings listed in Article 1 shall immediately bring to
an end the infringements referred to in that Article, in so far
as they have not already done so.

(cid:151) vitamin B6: from January 1991 to June 1994,

(cid:151) vitamin C: from January 1991 to August 1995,

They shall refrain from repeating any act or conduct referred
to in Article 1 and from adopting any measure having the
same or equivalent object or effect.

(cid:151) folic acid: from January 1991 to June 1994;

Article 3

(e) Merck KgaA, with respect to:

For the infringements referred to in Article 1, the following
fines are imposed on the following undertakings:

(cid:151) vitamin C: from January 1991 to August 1995,

(a) F. Hoffmann-La Roche AG:

(cid:151) vitamin H: from October 1991 to April 1994;

(f) Daiichi Pharmaceutical Co. Ltd, with respect to:

(cid:151) vitamin B5: from September 1991 to February 1999,

(cid:151) a fine of EUR 85,5 million for its infringement in the

vitamin A market,

(cid:151) a fine of EUR 99,75 million for its infringement in the

vitamin E market,

(cid:151) a fine of EUR 42 million for its infringement in the

(cid:151) vitamin B6: from January 1991 to June 1994;

vitamin B2 market,

(g) Lonza AG, with respect to:

(cid:151) vitamin H: from October 1991 to April 1994;

(h) Solvay Pharmaceuticals BV, with respect to:

(cid:151) vitamin D3: from January 1994 to June 1998;

(i) Eisai Co. Ltd, with respect to:

(cid:151) vitamin E: from January 1991 to February 1999;

(cid:151) a fine of EUR 54 million for its infringement in the

vitamin B5 market,

(cid:151) a fine of EUR 65,25 million for its infringement in the

vitamin C market,

(cid:151) a fine of EUR 21 million for its infringement in the

vitamin D3 market,

(cid:151) a fine of EUR 48 million for its infringement in the

beta-carotene market,

(cid:151) a fine of EUR 46,5 million for its infringement in the

carotinoids market,

(j) Kongo Chemical Co. Ltd, with respect to:

(b) BASF AG:

(cid:151) folic acid: from January 1991 to June 1994;

vitamin A market,

(cid:151) a fine of EUR 46,17 million for its infringement in the

(k) Sumitomo Chemical Co. Ltd, with respect to:

(cid:151) a fine of EUR 89,78 million for its infringement in the

vitamin E market,

(cid:151) vitamin H: from October 1991 to April 1994;

(cid:151) a fine of EUR 18,9 million for its infringement in the

vitamin B2 market,

(l) Sumika Fine Chemicals Ltd, with respect to:

(cid:151) folic acid: from January 1991 to June 1994;

(m) Tanabe Seiyaku Co. Ltd, with respect to:

(cid:151) a fine of EUR 34,02 million for its infringement in the

vitamin B5 market,

(cid:151) a fine of EUR 14,68 million for its infringement in the

vitamin C market,

(cid:151) a fine of EUR 7,56 million for its infringement in the

(cid:151) vitamin H: from October 1991 to April 1994;

vitamin D3 market,

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(cid:151) a fine of EUR 43,2 million for its infringement in the

beta-carotene market,

(cid:151) a fine of EUR 41,85 million for its infringement in the

carotinoids market,

(c) Aventis SA: a fine of EUR 5,04 million for its infringement

in the vitamin D3 market;

(d) Takeda Chemical Industries Ltd:

(cid:151) a fine of EUR 8,78 million for its infringement in the

vitamin B2 market,

(cid:151) a fine of EUR 28,28 million for its infringement in the

vitamin C market;

(e) Merck KgaA:

a

fine of EUR 9,24 million for

its

infringement in the vitamin C market;

(f) Daiichi Pharmaceutical Co. Ltd: a fine of EUR 23,4 million

for its infringement in the vitamin B5 market;

(g) Solvay Pharmaceuticals BV: a fine of EUR 9,1 million for

its infringement in the vitamin D3 market;

(h) Eisai Co. Ltd: a fine of EUR 13,23 million for

its

infringement in the vitamin E market.

Article 4

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

Account No 642-0029000-95 of the European Commission
with:

Banco Bilbao Vizcaya Argentaria (BBVA) SA

Avenue des Arts, Kunstlaan, 43

B-1040 Brussels

(Code SWIFT: BBVABEBB (cid:151) Code IBAN BE76 6420 0290
0095).

that period,

After expiry of
interest shall automatically be
payable at the interest 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 7,25 %.

Article 5

This Decision is addressed to:

F. Hoffmann-La Roche AG
CH-4070 Basel

BASF AG
D-67056 Ludwigshafen

Aventis SA
16, Avenue de l’Europe
Espace EuropØen de l’Entreprise
F-67300 Schiltigheim

Takeda Chemical Industries Ltd
12-10, Nihonbashi 2-Chome
Chuo-Ku
Tokyo 103-8668 Japan

Merck KgaA
Frankfurter Stra(cid:223)e 250
D-64293 Darmstadt

Daiichi Pharmaceutical Co. Ltd
14-10, Nihonbashi, 3-Chome
Chuo-Ku
Tokyo 103-8234 Japan

Lonza AG
M(cid:252)nchensteinerstra(cid:223)e 38
CH-4002 Basel

Solvay Pharmaceuticals BV
C.J. Van Houtenlaan 36
1381 CP Weesp
The Netherlands

Eisai Co. Ltd
6-10, Koishikawa, 4-Chome
Bunkyo-Ku
Tokyo 112-88 Japan

Kongo Chemical Co. Ltd
3, Himata
Toyama-shi
Toyama 9300912 Japan

Sumitomo Chemical Co. Ltd
27-1, Shinkawa 2-Chome
Chuo-Ku
Tokyo Japan

Sumika Fine Chemicals Ltd
3-1-21, Utajima
Nishiyodogawa-ku
Osaka 555-0021 Japan

Tanabe Seiyaku Co. Ltd
2-10 Dosho-machi 3-Chome
Chuo-Ku
Osaka 541-8505 Japan

This Decision shall be enforceable pursuant to Article 256 of
the EC Treaty.

Done at Brussels, 21 November 2001.

For the Commission

Mario MONTI

Member of the Commission

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(*) Business secret.
(1) OJ 13, 21.2.1962, p. 204/62.
(2) OJ L 148, 15.6.1999, p. 5.
(3) OJ L 354, 30.12.1998, p. 18.
(4) Since the events in question occurred prior to the creation of
the company will be identified as

Aventis in December 1999,
(cid:145)Rh(cid:244)ne-Poulenc(cid:146).

(5) Excluding Vitamins B3, B4 and B12 which are not the subject of

the present procedure.

(6) In 1976 Hoffmann-La Roche was fined 300 000 u.a. by the
Commission for an abuse of its dominant position (fidelity rebates)
in the vitamins sector (as L 223, 16.8.1976, p. 27). The decision
was substantially upheld by the European Court of Justice but the
fine was reduced to 200 000 u.a.: [1978] ECR 1139.

(7) OJ L 395, 30.12.1989, p. 1.
(8) OJ L 180, 9.7.1997, p. 1.
(9) Case IV/M.1378 (cid:151) Hoechst/Rh(cid:244)ne Poulenc (OJ C 254, 7.9.1999,

p. 5).

(10) Commission decision of 14 March 2000 (Case COMP/M.1663).
(11) The market

times referred to as (cid:145)western Europe(cid:146) since
participants would refer to this market which, whilst evidently
close in size, is not the exact equivalent to that of the EEA.

is at

(12) The figures provided are based on the companies’ replies to

Article 11 requests from the Commission.

(13) For the purpose of calculating the respective turnover figures the
following average annual EUR/national currency exchange rates
EUR 1 = USD 0,924;
have
EUR 1 = JPY 99,5; EUR 1 = CHF 1,558.

(source:

ECB):

been

used

(14) OJ C 207, 18.7.1996, p. 4.
(15) The

refers

to those

term (cid:145)straights(cid:146)

a
mono-product,
i.e. not in combination with other vitamins or
nutritional substances. It is usually used in contraposition to the
term (cid:145)mixes(cid:146) which refers to the combination of a number of
vitamins to a certain specification.

vitamins

sold as

(16) In the case of Lonza, Merck, Sumitomo and Tanabe they related to
vitamin H; in the case of Daiichi to vitamin B6 and in that of
Takeda, vitamins B1 and B6.

(17) Similar documentation is available for most of the years from

1988.

(18) Lohmann (of Cuxhaven, Germany)

is a distributor of vitamin
products (for animal consumption) which purchases vitamins for
resale from the manufacturers. Nutrilo is a subsidiary of Lohmann.
(19) The total for East and West Europe of 235,96 corresponds to the

figure of 236.

(20) Hoffmann-La Roche tends to confirm this aspect of

the price
collusion, and the same concerns were apparent in vitamins A and
E.

(21) Daiichi suggests that there had been collusive contacts between
the producers during the 1980s but they had ended in 1989
when the price fell steeply.

(22) Hoffmann-La Roche has identified Daiichi as a participant but
Takeda’s note does not record it as being present: the person
named denies ever having entered the Keidanren building in
Tokyo where the meeting took place.

(23) It is not known whether any such attempt was made.
(24) In April 1992, Yodogawa and two other affiliates of Sumitomo

Chemical Company merged to form Sumika.

(25) The author has inserted the producers’ names after their respective
numbers I, II, III and IV; (cid:145)Soll(cid:146) refers to the (cid:145)budgeted(cid:146) quota; (cid:145)Ist(cid:146) is
actual performance.

(26) Takeda’s European office is located in Hamburg.
(27) Report of the meeting in Basel on 8 February 1994.
(28) Roche made the hotel booking and paid for the room.
(29) Tanabe believes it was suggested by Roche in the Geneva meeting

on 25 January.

(30) There had even been a proposal from Roche in January 1993 for
the others to compensate it for (cid:145)buying-in(cid:146) Il Sung material to take
it off the market.

(31) According to BASF, even earlier.
(32) The case-law of the Court of Justice and Court of First Instance in
relation to the interpretation of Article 81 EC applies equally to
Article 53 EEA. References in this text to Article 81 therefore
apply also to Article 53.

(33) See recitals 517 to 519 and 481 to 483.
(34) See recitals 565 to 570 above.
(35) For example Coca Cola in vitamin C.
(36) See recital 160.
(37) See recital 236.
(38) See recital 233.
(39) See recitals 244 and 259.
(40) See recitals 260 to 269.
(41) See recital 271.
(42) See recital 274.
(43) See recital 291.
(44) See recitals 296 to 299.
(45) See recital 328.
(46) See recital 330.
(47) See recital 349.
(48) See recitals 354 and 382.
(49) See recitals 389 to 390.
(50) See recital 451.
(51) See recital 462.
(52) See recitals 479 to 480.
(53) See recital 487.
(54) See recital 513.
(55) See recital 520.
(56) See recital 526.
(57) See recital 534.
(58) The section below dealing with remedies therefore solely refers to

Aventis SA.

(59) OJ L 319, 29.11.74, p. 1.
(60) Article 1(2) of Regulation (EEC) No 2988/74.
(61) Article 2(1) and 2(3) of Regulation (EEC) No 2988/74.
(62) Pursuant to Article 5 of Council Regulation (EC) No 2894/94 of
28 November 1994 concerning arrangements of
implementing
the Agreement on the European Economic Area (cid:145)the Community
rules giving effect to the principles set out in Articles 85 and 86
of the EC Treaty [(cid:133)] shall apply mutatis mutandis(cid:146). (OJ L 305,
30.11.1994, p. 6).

(63) See recitals 194 to 210; 392 to 397; 272 to 277; 300 to 308;

520 to 522.

(64) See recitals 392 to 401.
(65) OJ C 9, 14.1.1998, p. 3.
(66) I.e. 1998 for vitamin A; 1998 for vitamin E; 1994 for vitamin C;
1994 for vitamin B2; 1998 for vitamin B5; 1997 for vitamin D3
and 1998 for beta-carotene and carotinoids.

(67) See recital 699.
(68) See recital 699.
(69) See recital 699.
(70) See recital 699.
(71) See recital 699.
(72) See recital 699.
(73) See recital 699.
(74) See recital 699.
(75) See recital 699.
(76) See recital 699.
(77) See recitals 160, 181, 183, 185, 187, 234, 236, 237, 271, 274,
275, 296, 314, 315, 319, 322, 388, 410, 418, 460, 462 and 478
for Hoffmann La Roche and recitals 160, 183, 271, 274, 319,
322, 388, 432, 437 and 439 for BASF.

(78) See also recitals 160 to 161; 270 to 271; 296 to 297; 388 to

391; 459 to 461; and 566 to 578.

(79) See recitals 420 to 454.
(80) See recital 741.
(81) See recital 752.

ANNEX

TABLE I

AGGREGATE TOTAL OF THE COMMUNITY ANNUAL MARKET

.

.

1
0
1
2
0
0
3

Product

1994

1995

1996

1997

1998

Beta-Carotene

55 260 725

60 170 276

66 397 171

69 433 747

76 760 030

(in ECU)

E
N

Vitamin A

Vitamin E

Vitamin B2

Vitamin C

137 642 396

140 897 797

143 805 741

143 646 245

148 171 031

188 071 834

208 795 930

218 550 730

231 697 704

247 809 921

41 021 061

44 150 364

38 316 522

32 845 274

34 050 701

225 448 626

247 582 138

163 765 525

115 993 991

118 960 198

Pantothenates/calpan (B5)

31 047 316

32 176 545

32 089 593

32 388 564

35 229 136

Vitamin B1

Vitamin B6

Vitamin D3

Canthaxanthin

Biotin (H)

17 685 500

15 110 130

12 382 832

13 727 600

14 922 699

15 187 563

11 399 478

9 531 044

10 021 122

10 816 893

16 055 355

19 311 859

19 955 992

17 260 375

20 411 064

48 749 922

51 503 259

49 820 053

51 903 783

50 361 347

35 027 202

36 142 809

31 146 950

25 115 396

23 246 687

Total market value

811 197 497

867 240 585

785 762 154

744 033 801

780 739 706

Source: based on Hoffmann-La Roche data.

O

f
f
i
c
i
a
l

J
o
u
r
n
a
l

o
f

t
h
e

E
u
r
o
p
e
a
n

C
o
m
m
u
n
i
t
i
e
s

L

6
/
7
9

L 6/80

EN

Official Journal of the European Communities

10.1.2003

BETA-CAROTENE

Country

1994

1995

1996

1997

1998

United Kingdom

Ireland

Denmark/Iceland

Sweden

Finland

Netherlands

Belgium/Luxembourg

France

Spain

Portugal

Italy

Greece

Germany

Austria

8 296

2 516

3 579

1 717

550

4 574

4 052

6 069

1 082

824

1 650

1 065

8 331

2 161

3 119

1 717

620

5 557

4 391

6 655

1 091

747

1 643

898

9 013

2 462

2 763

1 780

719

6 192

5 170

8 570

1 204

856

1 859

625

7 244

4 866

3 279

1 766

763

5 647

4 869

9 174

1 202

629

2 652

609

7 838

5 579

3 174

1 494

805

6 281

4 770

8 831

1 121

650

2 305

529

40 601

42 149

48 825

52 029

58 780

2 501

2 650

2 499

2 751

3 001

Total volume

79 076

81 729

92 537

97 480

105 158

Average annual price (CHF)

1 133

1 138

1 125

1 171

1 184

Annual market (ECU)

55 260 725

60 170 276

66 397 171

69 433 747

76 760 030

VITAMIN A

Country

1994

1995

1996

1997

1998

United Kingdom

249 282

263 743

257 339

247 869

250 759

Ireland

Denmark/Iceland

Sweden

Finland

Netherlands

46 492

87 647

41 759

34 262

45 288

87 020

44 783

27 837

43 794

88 060

47 708

20 681

41 969

89 605

48 925

21 840

35 041

80 031

42 088

25 028

218 794

221 151

261 061

286 529

264 671

Belgium/Luxembourg

109 902

115 730

114 018

113 741

122 731

France

Spain

Portugal

Italy

Greece

Germany

Austria

512 000

514 481

533 499

530 963

537 051

169 863

166 713

176 900

186 771

186 840

44 473

44 410

46 351

47 154

47 630

449 999

414 100

400 650

392 900

377 001

38 550

38 786

33 910

34 109

34 336

694 000

679 950

663 700

653 500

659 500

58 000

58 400

62 000

61 006

62 521

Total volume

2 755 023

2 722 392

2 749 671

2 756 881

2 725 228

Average annual price (CHF)

81,00

80,00

82,00

85,66

88,19

Annual market (ECU)

137 642 396

140 897 797

143 805 741

143 646 245

148 171 031

10.1.2003

EN

Official Journal of the European Communities

L 6/81

VITAMIN E

Country

1994

1995

1996

1997

1998

United Kingdom

864 635

944 129

931 524

965 835

981 699

Ireland

99 912

125 069

121 843

127 629

128 148

Denmark/Iceland

543 062

616 774

619 538

622 399

635 000

Sweden

Finland

Netherlands

157 317

168 599

221 473

245 554

215 554

122 677

110 264

95 030

97 385

98 538

396 514

450 723

654 784

748 134

705 825

Belgium/Luxembourg

283 787

286 417

300 965

317 186

328 076

France

Spain

Portugal

Italy

Greece

Germany

Austria

780 064

806 579

813 000

872 359

940 293

343 252

394 318

422 642

461 453

496 629

75 552

77 363

81 799

88 975

89 906

702 643

704 710

726 500

748 500

830 501

86 329

89 488

83 995

88 485

94 649

1 902 095

1 840 625

1 979 472

2 101 059

2 200 999

225 000

218 400

215 000

218 000

220 000

Total volume

6 582 839

6 833 458

7 267 565

7 702 953

7 965 817

Average annual price (CHF)

46,32

47,23

47,15

49,45

50,46

Annual market (ECU)

188 071 834

208 795 930

218 550 730

231 697 704

247 809 921

Country

1994

1995

1996

1997

1998

VITAMIN B2

United Kingdom

Ireland

Denmark/Iceland

Sweden

Finland

Netherlands

Belgium/Luxembourg

France

Spain

Portugal

Italy

Greece

Germany

Austria

87 119

94 574

100 643

102 111

106 642

8 200

41 063

10 782

10 385

78 271

33 412

8 885

39 711

11 307

10 306

86 111

33 208

8 666

41 093

15 834

8 483

9 338

40 400

15 339

8 456

7 709

43 899

13 176

8 675

98 607

104 297

106 068

32 936

33 795

33 962

109 499

113 296

116 450

125 657

123 724

59 350

12 718

96 700

9 000

59 800

13 032

62 917

12 423

97 000

101 001

9 155

9 067

65 272

13 961

98 403

9 101

66 643

13 961

99 805

9 864

131 405

131 760

132 385

133 521

142 515

21 500

20 501

21 500

21 000

20 000

Total volume

709 404

728 646

762 005

780 651

796 643

Average annual price (CHF)

93,75

93,66

78,84

69,17

69,33

Annual market (ECU)

41 021 061

44 150 364

38 316 522

32 845 274

34 050 701

L 6/82

EN

Official Journal of the European Communities

10.1.2003

VITAMIN C

Country

1994

1995

1996

1997

1998

United Kingdom

1 702 400

2 212 248

2 171 733

2 395 566

2 457 381

Ireland

438 147

348 736

312 451

292 570

310 021

Denmark/Iceland

453 134

536 475

530 000

540 000

566 001

Sweden

Finland

Netherlands

421 949

423 941

425 085

414 700

384 443

221 558

209 591

220 858

234 541

321 984

871 697

881 926

912 994

883 260

903 141

Belgium/Luxembourg

509 312

501 595

498 546

537 224

550 239

France

Spain

Portugal

Italy

Greece

Germany

Austria

2 421 500

2 471 069

2 362 760

2 357 765

2 423 742

1 320 095

1 317 095

1 171 347

1 076 080

1 076 082

221 598

194 000

177 676

191 540

192 540

1 700 000

1 800 000

1 900 000

2 000 000

2 049 999

206 924

205 073

186 467

186 121

180 523

4 612 000

4 729 941

4 840 422

5 048 000

5 355 000

520 000

495 000

510 000

658 693

550 000

Total volume

15 620 314

16 326 690

16 220 339

16 816 060

17 321 096

Average annual price (CHF)

23,40

23,44

15,83

11,34

11,14

Annual market (ECU)

225 448 626

247 582 138

163 765 525

115 993 991

118 960 198

PANTOTHENATES/CALPAN (B5)

Country

1994

1995

1996

1997

1998

United Kingdom

154 263

163 728

172 850

175 849

179 925

Ireland

21 234

22 593

5 744

22 363

17 810

Denmark/Iceland

102 308

106 513

123 522

116 421

117 967

Sweden

Finland

Netherlands

20 531

17 692

22 879

16 313

29 711

14 738

31 359

15 208

26 022

12 329

169 310

186 635

195 503

201 804

201 637

Belgium/Luxembourg

92 061

91 675

90 106

92 329

92 843

France

Spain

Portugal

Italy

Greece

Germany

Austria

261 001

265 989

266 500

260 951

268 200

148 112

148 112

155 166

163 473

163 549

32 023

31 862

33 662

34 237

34 237

283 000

284 750

281 499

284 500

285 000

21 842

22 436

21 538

22 562

22 286

344 100

333 310

331 600

332 501

334 100

39 999

38 000

42 001

43 500

45 000

Total volume

1 707 476

1 734 795

1 764 140

1 797 057

1 800 905

Average annual price (CHF)

29,48

28,67

28,52

29,63

31,73

Annual market (ECU)

31 047 316

32 176 545

32 089 593

32 388 564

35 229 136

10.1.2003

EN

Official Journal of the European Communities

L 6/83

Country

1994

1995

1996

1997

1998

VITAMIN B1

United Kingdom

Ireland

Denmark/Iceland

Sweden

Finland

Netherlands

Belgium/Luxembourg

France

Spain

Portugal

Italy

Greece

Germany

Austria

90 064

104 219

111 561

122 120

95 849

5 363

7 254

6 164

8 407

7 194

32 000

42 050

42 500

42 500

42 000

6 119

18 284

46 514

25 448

6 984

18 457

25 069

27 441

9 189

19 245

44 677

26 669

9 019

20 868

60 171

30 301

8 688

25 018

51 651

31 010

156 999

158 999

160 700

173 567

182 284

31 800

31 900

41 109

45 426

48 191

4 946

4 852

4 975

5 360

5 360

76 600

78 000

82 999

86 000

90 000

4 939

5 119

5 342

6 015

6 657

133 315

139 219

143 500

148 501

191 001

17 499

16 999

17 000

16 751

15 000

Total volume

649 890

666 562

715 630

775 006

799 903

Average annual price (CHF)

44,12

35,04

27,13

29,12

30,26

Annual market (ECU)

17 685 500

15 110 130

12 382 832

13 727 600

14 922 699

Country

1994

1995

1996

1997

1998

VITAMIN B6

United Kingdom

Ireland

Denmark/Iceland

Sweden

Finland

Netherlands

Belgium/Luxembourg

France

Spain

Portugal

Italy

Greece

Germany

Austria

59 939

67 510

75 040

73 100

81 239

3 895

29 000

11 178

8 989

20 462

23 024

49 430

44 400

5 741

5 400

30 248

11 205

9 346

24 167

23 567

36 909

44 400

5 368

4 906

38 728

14 731

7 133

45 007

22 719

33 025

45 829

6 222

5 178

34 884

14 240

7 244

63 050

27 319

30 012

54 700

6 811

4 944

33 916

13 349

8 381

56 789

44 541

14 335

55 460

6 939

68 300

70 999

70 000

86 600

74 000

6 866

6 882

7 310

7 877

9 557

101 800

103 900

108 410

110 500

120 500

28 000

26 500

35 000

34 500

47 001

Total volume

461 024

466 401

514 060

556 015

570 951

Average annual price (CHF)

53,41

37,78

29,07

29,63

30,73

Annual market (ECU)

15 187 563

11 399 478

9 531 044

10 021 122

10 816 893

L 6/84

EN

Official Journal of the European Communities

10.1.2003

Country

1994

1995

1996

1997

1998

VITAMIN D3

United Kingdom

Ireland

Denmark/Iceland

Sweden

Finland

Netherlands

Belgium/Luxembourg

France

Spain

Portugal

Italy

Greece

Germany

Austria

54 604

56 380

69 750

52 039

54 000

7 444

7 624

8 788

15 269

18 406

18 696

6 728

16 578

10 883

6 121

46 695

22 860

93 296

35 529

8 930

6 434

16 916

8 423

5 538

45 968

27 112

90 545

35 761

8 953

9 949

6 861

43 771

29 320

92 898

41 699

9 796

8 544

5 579

36 458

22 254

92 243

32 746

8 274

66 755

5 997

8 516

5 189

40 564

28 977

86 464

40 051

10 067

66 872

5 787

66 870

66 859

66 879

5 559

5 524

5 771

86 230

86 933

85 505

83 300

85 203

8 499

9 305

9 804

8 850

9 851

Total volume

450 896

471 135

499 266

464 192

467 354

Average annual price (CHF)

57,73

63,36

62,67

61,13

70,84

Annual market (ECU)

16 055 355

19 311 859

19 955 992

17 260 375

20 411 064

CANTHAXANTHIN

Country

1994

1995

1996

1997

1998

United Kingdom

Ireland

Denmark/Iceland

Sweden

Finland

Netherlands

Belgium/Luxembourg

France

Spain

Portugal

Italy

Greece

Germany

Austria

2 480

1 099

1 318

417

2 830

1 367

5 594

6 419

2 500

5 410

466

8 271

1 020

4 756

850

1 232

426

2 564

1 279

5 384

6 115

2 500

5 340

483

8 076

965

5 653

20

872

163

2 368

1 379

5 034

6 374

2 500

4 807

462

8 311

800

6 301

700

1 054

148

2 501

1 337

6 010

6 362

2 500

4 824

521

8 305

851

6 403

1 200

589

139

2 363

1 314

6 207

6 459

2 150

4 628

488

8 111

802

Total volume

39 191

39 970

38 743

41 414

40 853

Average annual price (CHF)

2 016,72

1 991,76

2 016,18

2 060,41

1 999,55

Annual market (ECU)

48 749 922

51 503 259

49 820 053

51 903 783

50 361 347

10.1.2003

EN

Official Journal of the European Communities

L 6/85

BIOTIN (VITAMIN H)

Country

1994

1995

1996

1997

1998

United Kingdom

1 365

1 422

1 577

1 605

1 750

Ireland

Denmark/Iceland

Sweden

Finland

Netherlands

Belgium/Luxembourg

France

Spain

Portugal

Italy

Greece

Germany

Austria

174

943

200

231

585

238

178

928

219

199

727

266

41

161

122

1 058

1 005

1 127

320

193

969

263

334

208

282

164

1 086

1 213

308

339

1 173

1 447

1 511

1 935

2 093

633

138

634

140

649

137

686

147

683

147

1 117

1 124

1 121

1 129

1 842

114

117

140

143

200

1 760

1 980

2 251

2 695

2 911

223

288

283

285

316

Total volume

8 894

9 669

10 513

11 727

13 189

Average annual price (CHF)

6 385,08

5 777,99

4 645,23

3 520,91

2 858,96

Annual market (ECU)

35 027 202

36 142 809

31 146 950

25 115 396

23 246 687

L 6/86

EN

Official Journal of the European Communities

10.1.2003

TABLE II

Vitamin A in ECU
Vitamin A in CHF

100
100

90
90

80
80

70
70

60
60

50
50

40
40

30
30

20
20

10
10

0
0
1989
1989

60
60

50
50

40
40

30
30

20
20

10
10

0
0
1989
1989

1990
1990

1991
1991

1992
1992

1993
1993

1994
1994

1995
1995

1996
1996

1999
1998
1997
1997
1999   
1998
(Q1&2)
(First and second quarter)

TABLE III

Vitamin E in ECU
Vitamin E in CHF

1990
1990

1991
1991

1992
1992

1993
1993

1994
1994

1995
1995

1996
1996

1999
1998
1997
1997
1998
1999
(Q1&2)
(First and second quarter)

10.1.2003

EN

Official Journal of the European Communities

L 6/87

TABLE IV

Vitamin B1 in ECU
Vitamin B1 in CHF

60
60

50
50

40
40

30
30

20
20

10
10

0
0
1989
1989

120
120

100
100

80
80

60
60

40
40

20
20

0
0
1989
1989

1990
1990

1991
1991

1992
1992

1993
1993

1994
1994

1995
1995

1996
1996

1999
1998
1997
1997
1998
1999
(Q1&2)
(First and second quarter)

TABLE V

Vitamin B2 in ECU
Vitamin B2 in CHF

1990
1990

1991
1991

1992
1992

1993
1993

1994
1994

1995
1995

1996
1996

1997
1999
1998
1997
1998
1999
(Q1&2)
(First and second quarter)

L 6/88

EN

Official Journal of the European Communities

10.1.2003

TABLE VI

Pantothenates/Calpan (B5) in ECU
Pantothenates/Calpan (B5) in CHF

35
35

30
30

25
25

20
20

15
15

10
10

5
5

0
0
1989
1989

80
80

70
70

60
60

50
50

40
40

30
30

20
20

10
10

0
0
1989
1989

1990
1990

1991
1991

1992
1992

1993
1993

1994
1994

1995
1995

1996
1996

1997
1999
1998
1998
1997
1999
(Q1&2)
(First and second quarter)

TABLE VII

Vitamin B6 in ECU
Vitamin B6 in CHF

1990
1990

1991
1991

1992
1992

1993
1993

1994
1994

1995
1995

1996
1996

1997
1999
1998
1998
1997
1999
(Q1&2)
(First and second quarter)

10.1.2003

EN

Official Journal of the European Communities

L 6/89

TABLE VIII

Vitamin C in ECU
Vitamin C in CHF

30
30

25
25

20
20

15
15

10
10

5
5

0
0
1989
1989

1990
1990

1991
1991

1992
1992

1993
1993

1994
1994

1995
1995

1996
1996

1997
1999
1998
1997
1998
1999
(Q1&2)
(First and second quarter)