2003/437/EC: Commission Decision of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/37.027 - Zinc phosphate) (notified under document number C(2001) 4237) (Text with EEA relevance)
Date: 2001-12-11
Institutions: European Commission
Subjects: audit, competition law, phosphate, restrictive trade practice, trade agreement, zinc

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 11 December 2001

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

(Case COMP/E-1/37.027 – Zinc phosphate)

(notified under document number C(2001) 4237)

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

(Text with EEA relevance)

(2003/437/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

1. THE 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)

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

by Regulation

last

as

This Decision imposing fines for an infringement of
Article 81 of the Treaty and Article 53 of the EEA
Agreement is addressed to the following undertakings:

— Britannia Alloys & Chemicals Limited (Britannia),

— Dr Hans Heubach GmbH & Co. KG (Heubach),

Having regard to the Commission's decision of 2 August 2000
to initiate proceedings in this case,

— James M. Brown Limited (James Brown),

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 of 22 December
1998 on the hearing of parties in certain proceedings under
Articles 85 and 86 of the EC Treaty (3),

— Société Nouvelle des Couleurs Zinciques SA (SNCZ),

— Trident Alloys Limited (Trident),

— Waardals Kjemiske Fabrikker A/S (Waardals).

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

(2)

Having regard to the final report of the Hearing Officer in this
case (4),

of

zinc

The infringement consists of the participation of the
producers
continuing
phosphate
infringement and/or concerted practice contrary to
Article 81(1) of the Treaty and Article 53(1) of the EEA
Agreement, covering the whole of the Community and
Norway, Austria, Sweden and Finland, by which they:

in

a

Whereas:

— fixed the price for the product,

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— agreed on and implemented a mechanism for

implementing price increases,

— allocated markets and market share quotas,

— allocated specific customers.

(3)

The undertakings participated in the
during the following periods:

infringement

— Britannia:
1997,

from 24 March 1994 until 15 March

— Heubach: from 24 March 1994 until 13 May 1998,

is engaged in the manufacture and distribution of
specialised organic and mineral pigments, mainly used
as ingredients in the manufacture of inks, plastics and
paints.

(9)

Heubach's worldwide turnover was EUR 71,02 million
in 2000.

(10) Heubach sells zinc phosphate, including modified types.
Standard zinc phosphate is marketed under the name
‘ZP10'. Modified types are marketed as ‘Heucophos'. The
production of zinc phosphate started in 1981.

— James Brown: from 24 March 1994 until 13 May

1998,

1.2.2.2. James M. Brown Limited

— SNCZ: from 24 March 1994 until 13 May 1998,

— Trident: from 15 March 1997 until 13 May 1998,

— Waardals: from 24 March 1994 until 13 May 1998.

1.2. ZINC PHOSPHATE INDUSTRY

(11)

(12)

(4)

(5)

(6)

(7)

1.2.1. THE PRODUCT

The present proceedings concern zinc orthophosphates.
Though they may have slightly differing chemical
formulas (they can be ‘dihydrated' or ‘tetrahydrated'),
zinc orthophosphates form a homogeneous chemical
product hereafter generically
‘zinc
phosphate'.

referred to as

is derived from zinc oxide

Zinc phosphate
and
phosphoric acid. It is a non-toxic product and usually
comes in the form of a non-cohesive, micronised white
powder.

Zinc phosphate is widely used as an anti-corrosion
mineral pigment
in protective coating systems. Paint
manufacturers use it for the production of anti-corrosive
such as automotive, aeronautic or
industrial paints
marine paints.

1.2.2. THE PRODUCERS

traditionally been essentially
Zinc phosphate has
manufactured in Europe. As
a high
it became
performance product for export in the past years, five
producers located in Western Europe hold virtually the
whole of the world market. The rest is produced by two
US-based companies and by a few small producers,
generally located in Asian countries.

1.2.2.1. Dr Hans Heubach GmbH & Co. KG

is a small
James M. Brown Limited (James Brown)
company located in Stoke-on-Trent, Staffordshire, United
Kingdom. The
approximately 100
employees.

company

has

such as

James Brown is engaged in the production of mineral
cadmium pigments, zinc oxide,
pigments
metallic stearates or zinc phosphate. Whilst
James
Brown has been producing zinc oxide for many years,
zinc phosphate
its
production. The company entered this market in 1990
after
the acquisition of a company named Diroval.
James Brown's zinc phosphate is marketed under the
Diroval brand name.

a minor part of

represents

(13)

James Brown's worldwide total turnover was GBP 7,38
million (EUR 12,12 million) in 2000.

(14)

(15)

Brown manufactures

James
zinc
phosphate. The product is available as a standard grade,
as a micronised grade or as a water-system grade.

standard

only

1.2.2.3. Société Nouvelle des Couleurs Zinciques SA

(SNCZ)

Société Nouvelle des Couleurs Zinciques
is
headquartered in Beauchamp (Val d'Oise), France. SNCZ,
which currently employs 40 people, was created in
1984 through the buy-out of the Société des Couleurs
Zinciques (SCZ). The Société Chimique Prayon-Rupel SA
(Prayon), a Belgian chemicals group, acquired a 50 %
share and presently runs the company (the rest of the
shares are privately owned by a family).

(16)

Prayon comprises some 20 subsidiaries. It specialises in
phosphoric acids, phosphate derivatives, fertilisers and
pigments. With 10 manufacturing subsidiaries and 10
sales subsidiaries, Prayon had a consolidated turnover of
BEF 11,32 billion (EUR 278,80 million) in 1998 (5).

(8)

Dr Heubach GmbH & Co. KG (Heubach)
is
headquartered in Langelsheim (Lower Saxony), Germany.
The company employs approximately 1 000 people and

(17)

Former SCZ produced zinc oxide, painting pigments
and zinc dust. It enjoyed acknowledged know how in

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activities. Today, SNCZ has

abandoned the
these
production of zinc oxide and produces mainly zinc
phosphate, zinc
strontium and barium
chromates. All these products are mineral, anti-corrosive
pigments used in the paint and coatings industry.

chromates,

SNCZ shares its offices in Beauchamp with a ‘sister'
company named Silar SA (Silar) and controlled by the
two
family holding a 50 % stake in SNCZ. The
companies share the same administrative staff, although
they have distinct sales and marketing departments.
Silar's main task is to market the zinc oxide produced
by Silox SA (Silox), a subsidiary of Prayon located on its
Belgian site.

today

SNCZ is
pigments producers
turnover was EUR 17,08 million in 2000.

in the world.

second largest

the

anti-corrosive
Its worldwide

SNCZ produces both standard and modified types of
Zinc phosphate. Standard types are marketed under the
name PZ20 (tetrahydrated) and PZ W2 (dihydrated).
Modified types are marketed under the name Novinox
PZ02; Phosphinal PZ04 and Phosphinox PZ06.

(18)

(19)

(20)

1.2.2.4. Trident Alloys Limited (formerly Britannia

Alloys and Chemicals Ltd)

(21)

Zinc-based activities currently conducted by Trident
Alloys Limited (Trident) have been carried out for over a
hundred years at a site in Bloxwich, near Walsall in the
West Midlands of the United Kingdom.

(22) During this period, zinc-based activities have undergone
the
several ownership changes. During the 1980s,
zinc-based business was owned by the Australian metal
and mining group Rio Tinto Zinc Corporation plc
(RTZ). Within RTZ, it was run by ISC (Alloys) Ltd. In
1990, part of RTZ (including the zinc-based business)
was
floated on the Australian stock exchange and
dissociated from the group. It was then taken over by
the Australian group Pasminco and became Pasminco
Europe (ISC Alloys) Ltd (Pasminco Europe-ISC Alloys).
As Pasminco group withdrew from Europe in the early
1990s, the zinc business of Pasminco Europe-ISC Alloys
was sold in October 1993 to MIM Holdings Ltd (MIM),
another Australian company, which assigned it to its
wholly owned British subsidiary Britannia Alloys and
Chemicals Ltd (Britannia). Britannia's zinc business was
put on sale by MIM in 1996.
the
management team of the zinc business unit of Britannia
launched a management buy-out
funded by Lloyds
Development Capital, a venture capital subsidiary of the
Lloyds TSB group. The management buy-out was

In early 1997,

(23)

(24)

(25)

(26)

(27)

successfully completed on 15 March 1997, via the
acquisition of the Bloxwich site and related business by
the newly
company Trident Alloys
Limited (6).

incorporated

Britannia, which carried out the zinc products business
at the Bloxwich site from 29 October 1993 to 15 March
1997 is still in existence, as a wholly-owned subsidiary
of MIM.

is

company.

an independent

Trident
Its original
team included six directors, owning
management
together 45 % of the share capital, the majority of the
remaining capital being held by the Lloyds group. Since
the management buy-out, several directors have left the
company. The current Managing Director took over his
position in February 1999.

commodities derived from zinc
Trident produces
metal (7).
Its three areas of business are die-casting
alloys, sacrificial anode cathodic protection products,
and-zinc based pigments, collectively referred to as ‘zinc
products'. These products include zinc oxide, zinc dust,
zinc phosphate and zinc powder.

Trident currently employs 170 people. The company
had a worldwide consolidated turnover of GBP 48,75
million (EUR 76,07 million) in financial year 1999 to
2000 (8).

Trident supplies four formulations of Delaphos zinc
phosphate: ‘D2', ‘D4' (higher water content), D2 with a
low lead content and micronised D2. These types are all
used as paint pigments but cater for specific needs of
the customer. Trident does not produce modified types
of Zinc phosphate.

1.2.2.5. Waardals Kjemiske Fabrikker A/S

(28) Waardals

Kjemiske

Fabrikker A/S

headquartered in Bergen, Norway.
1947 and currently employs around 30 people.

(Waardals)
is
It was founded in

substances

(29) Waardals originally produced organic pigments used in
the paint and ink industry. Later, the company shifted to
and produced primarily zinc
inorganic
the negative effects on the
chromate. Because of
environment,
this product has
importance of
progressively decreased. In 1975, the company started to
produce zinc phosphate and modified types of zinc
phosphate. Waardals also produces zinc borate.

the

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(30)

The worldwide turnover of
57,52 million (EUR 7,09 million) in 2000.

the company was NOK

statistical data for zinc phosphate until 1997, when the
zinc phosphate producers decided to stop resorting to
CEFIC.

(31) Waardals produces both standard and modified types of
so-called
zinc phosphate. Standard types
ZP-BS-M and ZP-M. Modified types are marketed under
the names Wacor ZBP-M, Wacor ZBA and Wacor ZAP.

the

are

1.2.2.6. Other producers of zinc phosphate in the

world

(32)

Beside the abovementioned companies, a few small
companies sell small quantities of zinc phosphate at a
level (9). These
local
sales can be deemed to be
insignificant at the EEA level.

(33) American companies Mineral Pigments Limited and
Wayne Pigment Limited also produce zinc phosphate
(including modified types) but are essentially confined to
their domestic market.

(34) Asian zinc phosphate producers include Hanil (Korea),
Kikuchi (Japan), and some Chinese producers. Together,
these producers hold an insignificant share of the EEA
zinc phosphate market.

1.2.3. TRADE ASSOCIATIONS

information

(35) Over the time period considered in this Decision, the
five main European producers of zinc phosphate
exchanged
trade
associations. These trade associations collected and
compiled the sales data of each individual company and
informed them in return about the size of the market.
Meetings also aimed at discussing a number of subjects
of common interest such as environment protection,
transportation or regulatory issues.

and met within

(38)

Zinc phosphate producers also met within ZIPHO to
discuss subjects of common interest. During the period
three ZIPHO technical
considered in this Decision,
meetings were organised,
taking place in the CEFIC
Offices in Brussels (11). ZIPHO members discussed the
implications
of Community
initiatives to examine the risks of existing chemicals to
humans and the environment.

phosphate

zinc

for

1.2.3.2. Verband der Mineralfarbenindustrie e.V.

(VdMI)

(39)

is
The Verband der Mineralfarbenindustrie e.V (VdMI)
inorganic
the German producers'
pigments, printing ink and printing ink additives,
carbon black, white reinforcing fillers, chemicals for
enamels, glass and ceramics, artists and school colours
and food colorants. It is located in Frankfurt, Germany.

association for

(40)

For many of
the abovementioned products, VdMI
compiles internal statistics. VdMI processed the zinc
phosphate producers' sales figures from 1997 to 1999.

(41)

In 1998, VdMI convened three meetings between zinc
phosphate producers. The first two meetings took place
on 31 July 1998 and 6 October 1998 in the VdMI
offices. The third meeting took place in Barcelona,
Spain, on 9 November 1998. At this occasion, zinc
phosphate producers discussed the setting-up of a new
trade association named European Manufacturers of
Zinc Phosphate (EMZP).

1.2.3.1. The Zinc Phosphates Producers Association

(ZIPHO).

(36)

sub-group' of

The Zinc Phosphates Producers Association subgroup
(ZIPHO) was informally established in May 1994, as a
the Zinc Oxide Producers
‘statistical
Association (ZOPA), a sector group of
the European
Chemical Industry Council (CEFIC) (10). A representative
of CEFIC was in charge of ZIPHO as a sector group
manager.

1.2.3.3. European Manufacturers of Zinc Phosphates

Association (EMZP)

(42)

the objectives of

The association was established on 31 July 1998 by
Heubach, SNCZ, Trident and James Brown. According
to its Statutes,
the EMZP are ‘to
promote the common welfare of those engaged in the
manufacture of zinc phosphates and their employees
and customers; to promote the safe production and use
of these pigments and to do such other things in the
interests of its members and of the trade as may be
lawful and proper' (12).

(37)

ZIPHO was originally and primarily created as for the
collection and monitoring of statistical figures on the
zinc phosphate market. ZIPHO collected and processed

(43)

The EMZP was organised by the VdMI, whose Secretary
secretary of EMZP. A
also held the position of

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representative from Heubach was the chairman of the
newly created association, a representative of Trident
being appointed as deputy-chairman.

1.2.4. RELEVANT MARKET

1.2.4.1. Relevant product market

(44)

two decades, as it

In the past, the most efficient and most commonly used
anti-corrosion pigment in the paint industry was zinc
this product has strongly
chromate. Consumption of
declined in the past
is a toxic,
environmentally unfriendly product. As a non-toxic and
substitute, zinc phosphate has encountered
efficient
growing success in the industry and has progressively
replaced zinc chromate, which is almost no longer used
in the Western countries, except for the production of
paints destined for export
to the Far East or Latin
America countries.

substitutable

(45) A number of mineral or even organic products are
partially
for
to
anti-corrosive purposes (13). Today, the main substitute
for zinc phosphate is calcium phosphate, whose paint
grade
than zinc
approximately 30 % cheaper
is
phosphate (14).

phosphate

zinc

(46) Modified (or activated) types of zinc phosphate (15) can
also be substituted for standard zinc phosphate. These
are usually 30 % to 60 % more
modified grades
expensive than normal zinc phosphate (16), but
their
anti-corrosive properties are better and smaller volumes
the equivalent
are required as a paint addition for

performance. Modified types of zinc phosphate are
produced in limited quantities and were not subject to
the anti-competitive behaviours this Decision refers to.
Therefore, unless otherwise indicated, subsequent figures
and considerations will refer exclusively to standard zinc
phosphate.

1.2.4.2. The relevant geographical market

(47) As indicated above, five European producers control the
the worldwide production of zinc
quasi-totality of
phosphate. Most of
in manufactured in
the product
Europe. The relevant geographical market can therefore
be deemed to be global, and is in any event at least
EEA-wide.

1.2.4.3. Supply of zinc phosphate

(48) During the five years 1994 to 1998, the size of the
EEA-wide standard zinc phosphate market in volume
was in the region of 9 400 metric tonnes (17). The world
market can be estimated at 13 000 to 14 000 tonnes (18)
and the US market at 1 600 tonnes. Over the same
years, average price in the EEA was in the range of ECU
1 600/tonne;
therefore total European market value
approximates EUR 15 to 16 million. At western
European prices, the world market value approximates
EUR 22 million.

(49)

The European market
There was no significant growth in the past years.

for zinc phosphate is mature.

(50)

The following table presents the overall size, in year 2000, of each of the five main producers of
their relative importance on the EEA-wide zinc
zinc phosphate, as well as an indication of
phosphate market during the last year of their respective infringement (19). The figures provided are
based on the companies' responses to request for information from the Commission (20).

Undertaking

Britannia

Heubach

James Brown

SNCZ

Trident

Waardals

Total worldwide turnover

EEA-wide product turnover

(in EUR)

Year

Turnover

1996 (21)

55 713 550

2000

2000

2000

2000

2000

71 018 442

12 118 226

17 080 851

76 066 402

7 092 182

Year

1996

1998

1998

1998

1998

1998

Turnover

[…]* (*)

[…]*

[…]*

[…]*

[…]*

[…]*

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1.2.4.4. Demand for zinc phosphate

(51)

for zinc phosphate are the main paint
Customers
though highly
manufacturers. The paint market,
specialised and segmented,
is dominated by a few
multinational chemical groups. The sector has recently
undergone a major process of concentration, with 10
major players controlling approximately 80 % of
the
worldwide paint production (22). In the medium term, it
is foreseen that Europe's top 10 producers will increase
their market share substantially from the current 50 %
to a concentration of nearly 80 %.

(52)

In western Europe today, the main paint producers are
Akzo Nobel, ICI, Dupont, BASF, SigmaKalon (belonging
to TotalFinaElf), Becker, Tikkurila, Jotun and Teknos.

(53) Worldwide sales of paint

in 1997 amounted to 25
million tonnes, representing a global market value of
approximately ECU 50 billion. In Western Europe, the
paint market was estimated to 6.2 million tonnes in
1997, representing a value of ECU 17,7 billion (23).

1.3. PROCEDURE

(54) On 13 to 14 May 1998, simultaneous and unannounced
investigations under Article 14(2) of Regulation No 17
were carried out by the Commission at the premises of
Heubach, SNCZ and Trident.

(55) On 13 to 15 May 1998, at

the request of

the
Commission under Article 8(3) of Protocol 23 to the
EEA Agreement, a simultaneous and unannounced
investigation under Article 14(2) of Chapter
II of
Protocol 4 to the Agreement between the EFTA States
on the establishment of a Surveillance Authority and a
carried out by the EFTA
Court of
Justice, was
Surveillance Authority
the premises of
(ESA)
Waardals.

at

oral account of the cartel, record of which was taken by
the Commission. By letter of 30 October 1998,
the
company provided additional documents. By fax of 13
November 1998, the Commission sent to Waardals its
draft minutes of the meeting of 2 September 1998. By
fax of 23 December 1998 and 27 September 1999,
Waardals gave its comments on the draft minutes. On 3
December 1999,
from
Waardals a declaration on the content of the minutes.

the Commission received

(58) On 5 March 1999 the Commission addressed requests
for information under Article 11 of Regulation No 17 to
Heubach, James Brown, SNCZ and Trident. The requests
in question to provide
required the undertakings
additional information and documentation.

(59)

for information,
Following the receipt of the request
Trident informed the Commission by letter of 12 April
1999 of
intention to cooperate fully with the
investigation. This letter was followed by a statement of
23 April 1999 supplementing Trident's reply to the
Commission's request for information.

its

(60) On 8 October 1999 the Commission addressed
additional requests for information to Heubach, James
Brown, SNCZ, Trident and Waardals.

(61) On

2000,

2 August

the Commission

initiated
proceedings in the present case and adopted a Statement
of Objections against the undertakings to which this
Decision is addressed. All parties submitted written
Commission's
observations
objections.

response

the

to

in

(62) At the request of certain addressees of the Statement of
Objections, an oral hearing was held on 17 January
2001.

(63) On

2001,

for
12 October
information were sent
James
Brown, SNCZ, Trident and Waardals, in order to collect
additional turnover figures.

to Britannia, Heubach,

additional

requests

(56) Documents

phosphate
indicating
producers participated
infringing
Article 81 of the EC Treaty and/or Article 53 of the
EEA Agreement were found during the investigations.

that
zinc
the
in arrangements

1.4. THE CARTEL

(57) Waardals approached the Commission on 17 July 1998
and announced its intention to fully cooperate with the
Commission under
the Commission Notice on the
non-imposition or reduction of fines in cartel cases (24),
(hereinafter; the Leniency Notice). At a meeting on 2
September 1998 the company gave the Commission an

(64)

This Decision is based on the documentary evidence
found at some of the addressees' premises during the
Commission and ESA investigations, on documents
provided
to the
undertakings
Commission's requests for information, as well as on the
declaration of Waardals and the written statement
submitted by Trident.

in reply

the

by

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1.4.1. SUMMARY OF THE INFRINGEMENTS OBJECTED TO BY

(71)

THE COMMISSION

The usual representatives of the companies in the cartel
meetings were the following individuals (27):

(65) A cartel of

five zinc phosphate producers, namely
Britannia (Trident as from 15 March 1997 onwards),
Heubach,
James Brown, SNCZ and Waardals, existed
from 24 March 1994, until 13 May 1998. The aim
pursued was the elimination of competition in the
to be
EEA-wide zinc phosphate market. This was
obtained by means of a market sharing agreement
(allocation of and adherence to market shares to/by each
producer),
bottom and/or
fixing
by
‘recommended' prices and,
to some extent, by the
allocation of specific customers.

the

of

(66)

(67)

cartel. Respective market

The allocation of sales quotas was the cornerstone of
the
initially
calculated in 1994 on the basis of the figures for the
years 1991 to 1993. Each cartel member had to adhere
to its allocated market share. Sales quotas were in
principle allocated at the European level.

shares were

cartel members

The
also agreed on ‘bottom' or
‘recommended' prices to be charged for zinc phosphate.
At each meeting a price per tonne was set in GBP for
the market in the United Kingdom and in DEM for the
German market. The German price was then converted
the other European
into local currency prices
countries. The leading company in a particular territory
had the main input in deciding what the appropriate
price for that country should be, for instance Trident for
the United Kingdom, Heubach for Germany and SNCZ
for France. This lead was generally followed (25).

for

(68) During

the meetings,

information about

specific
this
customers was exchanged. On some occasions,
resulted in customer allocation. There were in particular
regular discussions about the Finnish customer Teknos
Winter (Teknos) which was successively ‘allocated' to the
respective members of the cartel (26).

(69)

In order to ensure that allocated market shares were
adhered to, a monitoring system was set up. Each
producer sent its sales volumes data on a monthly basis
to the CEFIC and later to the VdMI, which compiled the
figures
five producers
them to all
concerned. Being in possession of the exact size of the
the producers met and provided each other
market,
with their individual sales volumes, thereby verifying via
this exchange of information their mutual adherence to
the agreed market shares.

and sent

the

(70)

From March 1994 onwards until May 1998, the cartel
members held regular multilateral meetings. During this
been
sixteen such cartel meetings have
period,
identified.

— Heubach:
Executive,

the Managing Director

and a Sales

— James Brown: the Managing Director,

— SNCZ:

the successive Chairmen, and Commercial
Directors, (a Commercial Director became Managing
Director in 1995 to 1996),

— Britannia Alloys/Trident: the General Manager (1994
to 1997), who became Managing Director (1997 to
the Sales & Marketing Manager (1993 to
1998);
1997), who became Commercial Director (1997 to
1998); the Sales Executive Zinc products (1994 to
97) who became Sales Manager Zinc products (1997
to 1998),

— Waardals: the Director and the International Sales

Manager.

(72)

The agreement on sales and quotas was in the nature of
a ‘gentlemen's agreement', in that the members did not
into practice any specific kind of enforcement
put
sales quotas was
mechanism. Enforcement of
achieved through pressure brought
to bear on the
members during cartel meetings. Customer allocation
was used as a form of compensation in the event of a
company not having achieved its allocated quota (28).
On an annual basis, the real market shares of the five
producers closely followed their allocated share (29).

the

1.4.2. BACKGROUND AND PRE-1994 ANTI-COMPETITIVE

CONTACTS

(73)

to 1994 the

Prior
zinc phosphate market was
undergoing a period of low prices and aggressive price
cutting and targeting of mutual competitor's traditional
customers.

zinc phosphate

(74) Waardals, for instance, which enjoyed a 55 % share of
the market in the United Kingdom and a 80 % share of
the Nordic market in the 1980's, was confronted in
1990 with two simultaneous phenomena: a reduction in
the
consumption in the Nordic
countries, as many Scandinavian companies decided to
build up their production plants in the United Kingdom,
and a severe economic decline in Finland following the
collapse of
In addition, Pasminco
Europe had started to enter the Norwegian market in
1990 with very low prices. Waardals declares that it was
consequently ‘forced to protect its market' (30).

the Soviet Union.

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(75)

In this context competitors began to contact each other
in order to work out a ‘solution' and put an end to
price-cutting practices.

(76) According to Trident's statement,

there was already
regular communication between Pasminco Europe-ISC
Alloys and its competitors in the zinc phosphate market
in the period 1989 to 1994. A sales executive of
Pasminco Europe-ISC Alloys had a direct telephone line
which was not routed through the switchboard and
which he used for contacting competitors. Trident
conversations with competitors
believes
involved discussion about
and price
levels (31).

the market

these

that

(80) Another

it

reads (34).

report, written at

similar contacts, as

the end of 1991 and
reporting on a meeting having taken place at the Resins
and Pigments Exhibition in November 1991 in Brussels
‘(…) Our
reveals
competitors in ZP: Alloys, SNCZ and Heubach all had
stands of their own and agreed that the price level was
at an unacceptably low level. They blamed each other
and the bad times in general. I got the impression that
they defend their market shares by all means and would
hold out as long as possible. Just before the Exhibition
ZP had been sold in Germany at DM 2.— per kg,
presumably both by Heubach and SNCZ. In comparison
our price to […]* is at the time […]*. (Name of SNCZ
chairman) expressed deep concern — maybe because of
problems?
replied that a voluntary reduction in
produced quantities was, in my opinion, the only way
to obtain stability in the market — and thus better
prices. He seemed to agree with this argument and will
take the
for a meeting with the other
producers. (…)'.

initiative

I

(77)

It is further believed that a Pasminco Europe-ISC Alloys
sales executive met competitors on a one-to-one basis.
One sales executive of Trident, a former employee of
Pasminco-Europe-ISC Alloys and later of Britannia,
remembers taking part in a meeting involving a higher
executive
the
meeting was to complain about aggressive behaviour by
another competitor.

from Heubach (32). The purpose of

1.4.3. MARKET SHARING, PRICE FIXING AND CUSTOMER

ALLOCATION FROM 1994 TO MAY 1998

(78) Documents found during the investigation also indicate
that
improper, anti-competitive contacts between the
European zinc phosphate producers already took place
in the period from 1980 to 1994.

(81) As far as the Commission is aware, the zinc phosphate
cartel was set up in March 1994. Regular meetings
between competitors ensued over a period of at least
the Commission and ESA
four years.
investigations led the cartel members to cancel a further
cartel meeting that had been planned for July 1998 in
Amsterdam.

In May 1998,

(79) A ‘visit

took

place,

report'

during which

investigation at
found during the
Waardals shows that as early as 1980 meetings between
sensitive
competitors
information was exchanged. The report, written by a
sales executive of Waardals after he met the Managing
Director and the Marketing Manager of Pasminco
Europe-ISC Alloys, reads as follows (33): ‘Visit report ISC
Alloys — Visit 18.12.1980: — (…) Alloys asked us not
to offer lower than £ 630.- in the first quarter of '81,
which should be raised to £ 650-660 in the second
quarter. They promised to go up to that
level
themselves when old contracts had been fulfilled. If we
would not raise our prices, Alloys would drastically
decrease its own prices on all markets,
including
Scandinavia. In return for our higher prices they are
willing to do the following: 1. to buy 60 tonnes of ZP
from us in 1981 2. to buy 100 tonnes of ZP from us in
1982'.

1.4.3.1. The set-up of the cartel in 1994

(82)

Prior to 1994 there was no organised forum for the
to discuss
zinc phosphate manufacturers

to meet

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matters of common interest. Zinc dust and zinc oxide
manufacturers had trade associations organised by the
CEFIC but there was no equivalent sector group for zinc
phosphate manufacturers.

Trident that the first multilateral meeting between the
five zinc phosphate producers was held at the latest on
24 March 1994.

this meeting

(83) According to Trident (35), it is not quite clear how the
first meeting of all the five manufacturers came about or
when
a
occurred.
representative of Pasminco Europe-ISC Alloys suggested
to James Brown, SNCZ, Waardals and Heubach that they
meet
forming a trade
the benefits of
association. The first meeting was held around October
1993 and was attended by representatives of Heubach,
James Brown, Pasminco Europe-ISC Alloys, SNCZ, and
Waardals.

to discuss

seems

that

It

(84)

(85)

Trident states that the purpose of the initial meeting was
to discuss ways in which some order could be brought
into the market with a view to ending the prevailing
price wars. The representative of Pasminco-Europe-ISC
Alloys suggested that one way this could be done was to
develop a system whereby the companies could obtain
information about
individual market share. He
suggested using a system such as that organised by
CEFIC for the zinc dust producers. CEFIC acted as an
the zinc dust producers. Each
‘honest broker'
producer provided information about
the volumes
produced and sold. CEFIC would draw this information
together and provide the producers with a picture of the
total market
from which each producer could then
derive its own market share.

their

for

Trident continues that the view of the representative of
Pasminco-ISC Alloys, as expressed at the initial meetings
in late 1993 and early 1994, was that if the producers
knew their own individual market share then, provided
that no one was losing significant market share, prices
would naturally drift upwards as the need for aggressive
targeting of customers at low prices would no longer
exist. Having access to accurate information about a
company's own market position would prevent a
company from taking aggressive action on the basis of
mistaken belief that it had lost market position.

(86) Waardals contests its participation in the meeting of
October 1993 and states on its part
it was
contacted by the Managing Director of Heubach in early
1994. The representative of Heubach invited Waardals
to London for an informal meeting to talk about zinc
phosphate. The invitation was made also on behalf of
Britannia (36).

that

1.4.3.2. The Cartel in operation: March 1994 to May

1998

(87)

It is established from documentary evidence as well as
from the declaration of Waardals and the statement of

(88)

Regular meetings were held between representatives of
Britannia (Trident as from 15 March 1997), Heubach,
James Brown, SNCZ and Waardals from 24 March 1994
until 13 May 1998. This has been confirmed by all the
five undertakings concerned in their respective replies to
the
or
statements. Sixteen different multilateral cartel meetings
have been identified by the Commission.

Commission's

information

requests

for

(89) Waardals says that information exchanged was limited to
the
Europe, as the ‘club' was not concerned about
American market and the rest of the world, where the
club would have little influence due to local competitive
contexts.

(90) As to the contents of these meetings, Trident states that
they followed essentially the same format. The meetings
lasted about an hour to an hour-and-a-half and involved
comparison of each participant's West European market
share (37) for the last quarter (or annually at the first
meeting in each year) by reference to historic market
shares; discussion of price levels, in GBP for the market
of the United Kingdom and in DEM for Germany, the
German prices being converted into local currency for
other European countries; discussion of supplies to
Teknos; and general discussions about who was new in
the market, such as new importers, new entrants or new
competing products such as dicalcium phosphate (38).

(91)

(92)

The market shares of each company were definitely
agreed upon and assigned at the meeting of 9 August
1994. At each subsequent meeting each participant
revealed its west European market share, which was
compared with the figure initially agreed. The annual
west European market shares of each participant were
discussed at the first meeting of each year (usually in
January or February) (39).

Price levels were also discussed at each meeting, where a
price per tonne was set in GBP for the market of the
United Kingdom and in DEM for the German market.
At the initial meetings local currency prices for each
territory were set. Later the DEM price was converted
into local currency for the other European territories.
Reference prices discussed were applicable to quantities
of one to five tonnes and represented the price
‘delivered to customer' (that is to say, including freight
costs). At some meetings the discussions were limited to
‘no change'. Trident states that its internal price lists
reflected the price discussed at the last meeting (40).

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(93) According to Trident, the discussions varied little over
the years except in relation to pricing. Latterly the view
was taken that pricing levels were of less importance as
long as market shares did not vary. Trident states that
this
the
representative of James Brown and was not contradicted
by other participants. Trident believes that this change
in attitude happened during 1997.

view was

originally

forward

put

by

in

the Nordic

(94) Waardals declares (41) that year after year, the ‘results' of
the cartel turned out to be a better coherence in prices,
the
except
Scandinavian
the
‘recommended' prices. The ‘recommended' prices were
prices, modelled on the German market, which were
the
standard
used
remaining countries.

‘recommended' prices

countries were

in
than

countries.

Prices

lower

for

as

they had shared Teknos, that supplies to Teknos became
the subject of regular discussions at meetings attended
by Waardals' (44).

(99) Waardals

that

further

submits

it participated only
exceptionally in the Teknos arrangement. It states that it
was ‘only once that the three decided unilaterally that
Waardals should deliver a container to Teknos in order
to make sure that Teknos did not become suspicious of
the arrangement' (45).

is in any event consistent with
(100) This last statement
Trident's one that
‘the companies were aware that
Teknos could become suspicious of the collusion in this
respect if a regular rotation was put in place. The cartel
participants
followed a more
flexible system, for example at one stage SNCZ was the
Teknos
in
supplier
succession' (46).

companies

designated

therefore

times

three

(95)

The notion of ‘recommended' prices aimed at preventing
the risk of major shifts of products across national
borders. There was an implicit agreement that prices
should be broadly in line with the German prices (42).

(96)

Trident declares that during the meetings,
there was
regular discussion about sharing the Finnish customer
Teknos. It was agreed that the producers would share
this account. The price to be quoted to this customer
was agreed and it was agreed that no one other than
the particular producer whose turn it was to have this
business would quote a price below that agreed (43).

(97) According to Trident's statement, this arrangement arose
because historically Teknos was one of Waardals' main
customers in Scandinavia and that they were sensitive
about losing this customer,
in particular to Britannia.
Therefore, in order to avoid a price war over Teknos it
was agreed that Britannia, Heubach, SNCZ and Waardals
would take it in turns to supply this customer. The
supplier
the next period was discussed at each
meeting.

for

(101) Over the period 1994 to 1998, there were two types of
‘full group informal meetings' and
cartel meetings
‘ad hoc meetings'. The cartel members also
producers'
regularly met under other
lawful auspices, such as
‘technical CEFIC meetings'. Market sharing, prices fixing
and customer
allocation agreements were usually
concluded during the ‘full group informal meetings'.

1.4.3.3. Full group cartel meetings 1994 to 1998

Year 1994

zinc phosphate producers. The

(102) The foundation for the market sharing, price fixing and
in 1994
allocation agreements was
customer
first
between the
(sometimes referred to by the
meeting of
cartel participants as the Club) took place on 24 March
1994 in London at the Holiday Inn Heathrow Airport
Hotel. Representatives of Britannia, Heubach,
James
Brown, SNCZ and Waardals attended the meeting (47).

the cartel

set

(98) Waardals give on its part a slightly different account of
the sharing out of Teknos. It says that it did not initially
participate to the sharing of this customer, but that it
suspected the three other companies of such a collusion.
Waardals states that in was only after a meeting in 1995
(Britannia), and SNCZ admitted that
‘where Heubach,

(103) One of the reasons for the organisation of the meeting
was that low prices in the Nordic countries and in the

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United Kingdom started to be felt all over Europe, due
to
and
internationalisation
increasing
purchasing policies.

prices

of

(104) During the discussion,

it was decided to fix a ‘status
quo' on quantities of zinc phosphate supplied in Europe.
According to Waardals, the cartel was based on the
principle ‘only quantities, no prices', but it was also
decided that prices should not be too different from one
country to another, so that products would not be
shifted across borders (48). Handwritten notes of
later
meetings put in evidence that national
‘recommended'
prices were widely used (49).

(105) For the monitoring of the system,

it was decided to
send all figures to CEFIC, which would aggregate the
sales data and send back overall figures. The reference
shares would be agreed upon on the basis of the 1991
to 1993 figures
the United
Kingdom, Scandinavia and France (50).

regarding Germany,

(106) A report of 21 April 1994 written by a representative of
Waardals concerning a visit by Waardals to clients […]*
on 11 to 13 April 1994, also shows contacts between
producers and refers to a general suspicion of price
cooperation between the zinc producers (51): ‘As a reply
to the direct question why we could not offer […]*
delivered in […]*, I answered that this is due to the
higher freight from […]* to […]* compared to […]*.
This was accepted. […]* stressed that he would like to
have W. as main supplier of ZP provided, of course, that
we were competitive. I think this is due to a general
suspicion of
regarding agreed
price-cooperation. […] Finally, it can be mentioned that
[…]* on purpose plays the suppliers off against one
another by showing data-outprints of competitors'
offers. From oral conversations with Alloys/J. Brown I
know that the above-mentioned offers are correct.'

the zinc producers

(107) The next meeting took place in London on 3 May 1994
at the Hotel Excelsior Heathrow Airport. Representatives

of Britannia, Heubach,
Waardals attended the meeting.

James Brown, SNCZ and

(108) The final agreement on sending the sales figures to
CEFIC was reached at the latest at this meeting as on the
following day, on 4 May 1994, a representative of
Britannia sent a fax to CEFIC confirming the acceptance
of the producers of CEFIC's quotation, giving names and
contact details of the five producers and asking CEFIC to
send questionnaires to each of
them concerning the
years 1991, 1992, 1993 annually and 1994 monthly (52).

(109) By letter of 26 May 1994 addressed to representatives of
Britannia, Heubach, James Brown, SNCZ and Waardals,
CEFIC referred to the creation of the zinc phosphate
statistical group in the frame of CEFIC Sector Groups
and asked for ‘historical statistics 1991, 1992, 1993' to
be provided to it by 15 June 1994 (53). On 15 June
1994 CEFIC sent a reminder to Waardals to provide the
information requested for the years 1991 to 1993 and
for the months January to May 1994 (54).

(110) All five producers sent their respective figures to CEFIC.
For instance, Waardals did so by fax of 15 June 1994
and SNCZ by letter of 14 June 1994 (55).

(111) A letter of 28 July 1994 addressed to representatives of
Britannia, Heubach, James Brown, SNCZ and Waardals
investigation 1991 –
and titled ‘Statistics – historical
1993' confirms that CEFIC had produced an analysis of
the total market size for those years and sent it to the
five zinc phosphate producers by the end of
June
1994 (56).

(112) The respective market shares of each of

the cartel
members were allocated at
the meeting held on 9
August 1994 in London at the Hotel Ramada Heathrow
Airport. Representatives of Britannia, Heubach,
James
Brown, SNCZ and Waardals attended the meeting (57).

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(113) Contemporaneous notes of a representative of Britannia and of a representative of Waardals (both
notes on Ramada Hotel paper) show a table of each undertaking's market share for the years 1991,
1992, 1993 and 1994. These market shares were rounded up for the allocation of market shares as
follows: Heubach 24 %, Britannia 24 %, SNCZ […]*, Waardals […]* and James Brown 6 %. The
similarities between the two documents are particularly striking:

Extract of original document No 1: handwritten notes of Britannia's representative

92

[…]*

[…]*

[…]*

[…]*

[…]*

93

[…]*

[…]*

[…]*

[…]*

[…]*

4td

[…]*

[…]*

[…]*

[…]*

[…]*

Heubach

James Brown

W.

BAC

SNCZ

[…]*

[…]*

[…]*

[…]*

[…]*

107.71

Heu […]*

BAC […]*

SNCZ […]*

W […]*

B […]*

91

[…]*

[…]*

[…]*

[…]*

[…]*

10 000

5 500

Extract of original document No 2: handwritten notes of Waardals' representative

1991

1992

1993

1994

Heubach

J. Brown

W.

Alloys

SNCZ

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]* All.

[…]* Heub.

[…]* SNCZ

[…]* W

6

(114) Britannia's representative expressed the view at

the
meeting of 9 August 1994 that if all the companies
were satisfied with their existing market shares and if
these market shares had been consistent over a number
of years,
these shares were not
substantially altered, there would not be need for the
aggressive price cutting of earlier years (58).

then, as

long as

(116) Another cartel meeting was held 25 November 1994 in
London at the Novotel Heathrow Airport Hotel. It was
attended by representatives of Britannia, Heubach, James
Brown, SNCZ and Waardals (60).

1995

(115) According to Trident this view was accepted by all the
participants at the meeting. The result was that each of
the five undertakings agreed to use their historic
European market share levels as benchmark for their
future market position (59).

(117) At the beginning of 1995, a ‘trilateral' meeting was held
on 9 January 1995 at the Manchester Airport Forte
Crest Hotel (United Kingdom). Representatives of James
Brown, Britannia and Waardals attended this meeting.

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James Brown had arranged the meeting to attempt to
broker better relations between Britannia and Waardals.

(118)

James Brown attempted to broker an arrangement
to stop targeting
whereby Waardals would agree
customers in the United Kingdom with low prices,
in
International Paint, and Britannia Alloys
particular
would restrict its activities in Scandinavia, particularly in
respect of a Norwegian customer, Jotun. According to
Trident, no such agreement was reached.

(119) Waardals confirms the meeting and its content, as well
as the failure to find the agreement that was sought.
Waardals adds as a result,
its biggest
customer, to Britannia Alloys ' (61).

Jotun,

‘lost

it

in charge of

(120) The first ‘full group' cartel meeting in 1995 took place
in London at the Novotel Heathrow Airport Hotel on
27 March 1995. Waardals was
the
organisation (62). Representatives of Britannia, Heubach
and Waardals took part in the meeting. According to
James Brown and
Waardals, also a representative of
SNCZ respectively attended all meetings (63).
James
Brown states that its representative was not present at
this meeting (64). SNCZ has not
its
representative
an
agenda for this cartel meeting was found in SNCZ's
premises during the Commission investigation (65). The
document has many scribbles on it
indicating the
presence of the person who made them at the meeting
where the document was discussed. It can therefore be
concluded that also SNCZ was
this
meeting.

indicated that
attended this meeting. However,

represented at

(121) The agenda of the meeting reads as follows:

‘AGENDA
— MEETING 27.3.95 – (1)1994: Total sales and market
shares in West Europa;
(2) 1994: Sales, competition,
price development in Germany, France, Benelux, UK,
Nordic
(3)
Development 1st Quarter –95 and prospects for rest of
–95; (4) New production of phosphate in Australia by
Larvik- capacity?;
(6) Summary;
(7) Date for new meeting'.

countries, USA, Rest of

(5) Question/answers;

the world;

‘In our

Waardals has claimed for an increase of its allocated
market share. The note says:
last meeting,
27.03.95, they were not willing to discuss larger market
share for our company' (67). ‘They' in this quote means
obviously the other cartel members. Indeed, Waardals
had apparently planned to make the following request:
full member with
‘(1)
[…]*;
allocation of clients';
reduced
activity ton for ton (68). These words refer obviously to
the possibility to sell to […]*, to getting […]* of the
market share of Finland and a market share of […]* of
the total market, and to becoming a full member of the
cartel with allocated customers.

(5) our contribution:

[…]*;(3)

[…]*;

(2)

(4)

(123) However, the request for an increase in market share
was opposed by the other participants, and the rest of
the proposals were not communicated during the
meeting (69).

(124) The meeting and negative

the

attitude of

the other
companies gave Waardals additional reasons to believe
that the others were cheating on them. Waardals says
that during the meeting of 27 March 1995,
it was
explicitly admitted that Heubach, Britannia and SNCZ
had shared the Finnish customer Teknos, each supplier
delivering in turn the quantities corresponding to one
year (70). The note of Waardals'
quarter of
representative of 30 March 1995 reports:
‘(3) Our
market share, […]*,
is too low. Alloys, Heubach and
SNCZ have […]* each. The remaining 6 % go to James
Brown. (4) Our competitors, who are all manufacturers
of ZnO, have an internal cooperation within the “club”.
They have shared customers/markets between them at
our cost. They have themselves admitted that
this
cooperation has taken place a.o. in Finland and this is
also the reason why all three have […]* (71).'

(122) A note dated 30 March 1995 (66) found in Waardals and
addressed to the higher management of the company
that
gives an account of

the meeting and reveals

(125) The note of 30 March 1995 also evaluated the
‘have obtained higher prices in 1st
‘Illegal. Can have
if we
are
us
the cartel.
led to

advantages (e.g.
quarter –95') and disadvantages (e.g.
large, negative
for
discovered.') (72) of being a member of
Resentment

the other producers

consequences

vis-à-vis

L 153/14

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in April
Waardals' temporary withdrawal of the cartel
1995, when Waardals announced to CEFIC that they
would no longer communicate their sales figures (73).

(132) The next cartel meeting was held in London on 15
September 1995 at
the Novotel Heathrow Airport
Hotel. Representatives of Waardals, Britannia, Heubach,
James Brown and SNCZ participated in this meeting (82).

(126) CEFIC informed the other zinc phosphate producers of
Waardals' decision not to provide sales figures on 3 May
1995 (74). SNCZ sent a fax (75) to CEFIC on 2 June 1995
stating that it would inform CEFIC of its position as to
continuing sending the statistics on 13 June 1995, i.e.
one day after the date on which the following cartel
meeting was to be held. The documentary evidence
information to
continued sending
shows
CEFIC (76).

that

it

(127) According to Trident, another cartel meeting was held
in London on 12 June 1995 at a hotel at Heathrow
Airport, with two of its representatives participating (77).

Year 1996

(133)

in London at

In 1996, cartel meetings were held, on 22 January (83)
in Paris at Hotel Mercure, on 21 May (84) and on 10
September (85)
the Novotel Heathrow
Airport Hotel. They were all attended by representatives
of Britannia, Heubach, SNCZ and Waardals.
James
Brown was represented at the meetings of 22 January
and 10 September 1996 (86). The discussions at these
meetings followed the normal format,
inter
alia, the disclosure and comparison of each participant's
individual
‘recommended'
prices (87).

sales and the set up of

including,

(128) The Commission has evidence that representatives of
Waardals were in London, at Hotel Novotel, Heathrow
on 11 to 12 June 1995 (78). According to the notes of
an employee of Waardals who wrote in his diary that a
representative of Heubach was also present at
this
meeting.

(129) Waardals confirms in its reply to the statement of
objections that it actually took part in a meeting with a
representative of Heubach in London on the said date,
but Waardals adds that
‘did not attend any club
it
meeting that day' (79).

(134) Handwritten notes (88) found at the investigation in a
folder titled ‘Cefic 21.5.96' show a calculation of zinc
phosphate sold by Waardals in 1995 and concludes with
the total amount of zinc phosphate sold by it in Europe
[…]*. It then sets out the total figure of zinc phosphate
sold by all the producers in Europe during that year
[…]*, which matches with CEFIC's statistics for 1995)
and breaks it further into volumes sold by each of the
five producers, as well as states their respective market
shares. The figures stated before ‘SNCZ' and ‘(Alloys)'
(Britannia) match exactly with the figures that
these
companies sent to CEFIC concerning the year 1995 (89).
The notes also contain bottom prices
for various
European countries. A date ‘21.5.' (that is to say, the
date of the meeting)
is written at the bottom of the
page.

(130) The documentary evidence shows that Waardals finally
sent the requested market figures to CEFIC for 1995.
Waardals and the other producers
to CEFIC
compiled figures for the period running from January to
June 1995 (80). From July 1995 onwards,
the sales
volumes were once again provided on a monthly basis.
Thus, Waardals' withdrawal
it
occurred at all, lasted only for a very limited period of
time. This is admitted by Waardals in its reply to the
statement of objections.

from the

cartel,

sent

if

(131) Waardals further submits however

‘after having
pulled out of the Club in April 1995, Waardals did
obtain an order from Teknos, on its own and outside
the sharing agreement operated by the others, and
delivered a container to Teknos on week 16' (81).

that

Extract of original document No 3 (90): handwritten notes of
Waardals' representative

ZP — [our sales]:

…

[total Europe] […]*

[…]*

[…]*

(Alloys)

[…]* Heubach

[…]*

[…]*

SNCZ

Brown

[…]*

[…]*

[…]*

[…]*

[…]*

Fr.

Ital

NLG

DK

N

S

SF

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[Belgium]

[…]*

[…]*

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(135)

In 1996, CEFIC informed the companies that ZIPHO,
under which the compilation of the statistics was done,
needed to be formally established. The companies were
unwilling to incur the additional expense resulting from
this (91), which led them to look for other possibilities
for compiling the statistics.

Year 1997

(136) The next cartel meeting had initially been planned for
22 January 1997: on 5 December 1996, Waardals made
a reservation for a meeting room for eight people in the
Hotel Novotel Heathrow. However, the meeting had to
be postponed and the reservation was cancelled by
Waardals on 9 January 1997 (92).

(137) The meeting was finally organised on 4 February 1997
at the Holiday Inn Crowne Plaza, London Heathrow (93).
Britannia.
The
Representatives of Britannia, Heubach,
James Brown,
SNCZ and Waardals took part in the meeting (94).

boardroom was

booked

by

(138) Notes handwritten on Holiday Inn paper (95) reveal that
the European sales of zinc phosphate in 1996 were
discussed and that the respective market shares of the
companies were calculated. In his statement during the
investigation, a representative of Waardals indicated that
this document was probably written in London in
January 1997, during a meeting with the five producers
of zinc phosphate. The figures stated after ‘SNCZ' and
(for Britannia) match with the figures that these
‘BA'
companies had sent
to CEFIC concerning the year
1996 (96).

Extract of original document No 4 (97): handwritten notes of
Waardals' representative

W.:

[…]* […]*

Teknos: SNCZ [for] 6 [months]

H

BA

[…]* […]* FIM […]* —

[now] […]*

[…]* […]*

SNCZ […]* […]* FIM: [We] […]*

Teknos DK!

J.B

[…]* […]*

(139) SNCZ seemed to have undersold and was ‘allocated'
Teknos for 6 months. SNCZ's price to Teknos was to be
[…]* and Waardals' […]*.

(140) Bottom prices were suggested for various European
suggested to apply
countries.
immediately DEM 3,30/kg (DEM 3,40/kg under five

In Germany,

it was

In the United Kingdom, suggested price was
tonnes).
GBP 1,20 (1,24 for less than five tonnes). In France it
was FRF 10,80 (11,10 for less than five tonnes).
In
Belgium the price
charged was BEF 62
to be
immediately,
then BEF 65 from the second quarter
onwards. Similarly in the Netherlands immediate price
of NLG 3,35 (3,65 under five tonnes) was set to be
increased to NLG 3,50 (3,80 under five tonnes) during
the second quarter. Whereas Denmark was to follow the
German price, suggested price was FIM 10 in Finland
in Italy. No price was apparently
and ITL 3 000
suggested for Norway.

(141) The said prices match exactly with Britannia's internal
price instructions for February 1997 (98) regarding sales
of zinc phosphate for ‘1 000 to 4 999 kilos' and ‘above
5 000 kilos'. It is also indicated in these instructions that
they
the prices are ‘minimum price levels' and that
‘should not be reduced without prior discussions with
(name of employee)', whose name refers to the person
who attended the cartel meetings on behalf of Britannia.

(142)

In addition to the matters related to zinc phosphate,
other topics such as calcium phosphate or zinc oxide
prices were
indicated in the
handwritten notes (99).

also discussed,

as

(143) Another

of

note (100),

undated

the
handwritten
representative of Waardals concerning market share
calculations was also found at the investigation. It was
in all likelihood written just before or at this meeting. It
shows a comparison of the actual and allocated market
share of Waardals in 1996. The table first sets out the
total sales of zinc phosphate for each calendar month,
together with Waardals' sales and then shows that
Waardals has sold 25 tonnes above its market share of
[…]*, as allocated to it at the meeting of 9 August
1994.

Extract of original document No 5 (101): handwritten notes of
Waardals' representative

[Total]

…

……

…

……

[…]*MT

[…]*

[…]*

[…]*

+ 25 t

[Our sales] %

…

…

[…]*

(144) Following the initial provision of ‘historical figures' to
the CEFIC in June 1994, the zinc phosphate producers
regularly sent data to CEFIC concerning their zinc
phosphate sales volumes at least until January 1997. The
deadlines set by CEFIC for the producers to send in their
the zinc
monthly data were very short.

In return,

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phosphate producers received the compiled data from
CEFIC very quickly, in most cases around the 20th of the
following month. Thus, the producers were at all times
well informed of the volumes sold on the market.

(145) The disagreements with CEFIC in 1996 concerning the
extra cost for its service resulted, on 14 February 1997,
in a representative of Heubach sending a fax to
Britannia, James Brown, SNCZ and Waardals informing
that Heubach had decided to stop transmitting any
further data to CEFIC and asking the other producers to
do the same (102). At the same time Heubach asked for
the other producers' views on assigning the statistical
processing task to VdMI. A representative of Heubach
and a representative of VdMI were due to discuss the
details shortly (103).

(146) Heubach sent on 6 March 1997, a fax to CEFIC
informing that it did not wish to continue any activities
in ZIPHO neither on a statistical nor on a sector group
basis and that it would therefore not submit any further
statistical data from that day on. A copy of this fax was
sent
James
Britannia,
Brown (104).

to Waardals,

SNCZ and

(147) Trident informed CEFIC by fax of 25 March 1997 that it

did not wish to continue any activities in ZIPHO (105).

(148) On 29 March 1997, Heubach sent a fax to Waardals
the address and name of an
informing the latter of
the organisation to which the
employee of VdMI,
market data from then on was
to be sent. Data
concerning the first quarter of 1997 was to be sent
there at the beginning of April (106).

(152) Notes

and travel documents

two
Waardals' representatives were in Paris Hotel Ibis on 21
to 22 April 1997 and met representatives of Trident and
Heubach (111).

show that

the

(153) Handwritten notes (112)

taken by a representative of
Waardals found at the investigation show that sensitive
sales information was exchanged during this meeting.
The figures and market shares concern sales during the
first calendar quarter of 1997.

Extract of original document No 6: Handwritten notes of
Waardals' representative

22.4.

Paris:

SNCZ:

[…]* — […]*

Trident

[…]* — […]*

Heubach

[…]* — […]*

Waard.

[…]* — […]*

J.B.

[…]* — […]*

[…]*

(154)

the

In his statement regarding these notes made during the
a
course of
representative of Waardals confirms they refer
to a
meeting in Paris, Charles de Gaulle Airport, Hotel
Novotel on 22 April 1997.

investigation of 13 May 1998,

(155) The figures given under ‘SNCZ', ‘Trident' and ‘Heubach'
in these notes correspond exactly with the numbers
these companies had sent
for the relevant
quarter for the compilation of the statistics (113).

to VdMI

(156) Handwritten notes of a representative of SNCZ dated 6
March 1997 read ‘Réunion 22.4.97 de coordination à
Paris' (114).

(149) The task previously fulfilled by CEFIC was taken over by
the VdMI in April 1997. Already on 1 April 1997, the
VdMI asked by fax that the producers send their figures
for the first quarter of 1997 by 14 April 1997 (107).

(157) On 17 July 1997 the zinc phosphate producers held a
in Copenhagen (115).
James Brown, SNCZ,

meeting at Hotel Skandinavia
Representatives of Heubach,
Trident and Waardals took part in the meeting (116).

(150) On 14 April 1997, a representative of VdMI sent a fax
to Trident
the other zinc phosphate
producers) introducing the association and explaining its
tasks (108).

(copied to all

(158) A representative of Waardals had the following notes in

his diary of 1997 concerning this meeting (117):

(159) 16 July 1997:

‘Departure
Skandinavia'

to Copenhagen, Hotel

(151) The following cartel meeting took place on 22 April
1997 in Paris at the Hotel Novotel of Roissy-Charles de
Gaulle Airport. The boardroom was booked under the
name of ‘Silar', the ‘sister' company of SNCZ. Silar also
booked rooms for two representatives of Waardals in
the Roissy Charles De Gaulle Airport Ibis Hotel (109).
James Brown, SNCZ,
Representatives of Heubach,
Trident and Waardals took part in the meeting (110).

(160) 17 July 1997:

‘ZP meeting in Copenhagen. We are the
hosts! No critics.'

(161) Handwritten notes (118) show that sensitive sales figures
were exchanged and discussed and that minimum prices
were fixed at this meeting. The first two rows of the
notes refer to the first and second calendar quarter of

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Individual

the same year
sales volumes
1997.
indicated in these notes after
‘T.A.'
(Heubach),
(Trident) and ‘SNCZ' match exactly with the figures that
these companies had sent to VdMI for the compilation
of the statistics (119).

for
‘H.'

Extract of original document No 7 (120): handwritten notes of
Waardals' representative

[Our share]

[…]*

[…]*

[…]* […]*

[…]*

[…]*

[…]*

+ 245

[Total]

[…]*

[…]*

[…]*

+ 245

[…]*

[…]*

[…]*

[…]*

= […]*

1. [QTR.]

2. [QTR.]

H.:

T.A.:

(166) Waardals' representative's handwritten note on a file

folder indicates: ‘Hamburg, 16.10.97…' (123).

(167) Handwritten notes (124) found at the investigation show
that sensitive sales information was exchanged by the
producers. The notes compare zinc phosphate sales
figures for the first three calendar quarters of 1996 and
1997, first for Waardals and then the total figures. At
five
the bottom of
companies'
third
quarter of 1997 are indicated, together with a market
Individual sales
share calculation for each of
‘Heub'
volumes
(Heubach) and ‘SNCZ' correspond exactly with the
figures that these companies had sent to VdMI for the
compilation of the statistics (125).

each of
for

the document,

indicated after

sales volumes

individual

(Trident),

the
the

‘Trident'

them.

[…]*

[…]* 27

[…]*

SNCZ:

[…]*

[…]*

J.B.

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

Extract of original document No 9 (126): handwritten notes of
Waardals' representative

(162) The same notes indicate that bottom prices were fixed
for various European countries (Germany, France, the
United Kingdom,
the Netherlands, Belgium, Sweden,
Norway, Finland, Denmark and Italy). The first price
column concerns volumes above 5 tonnes.

Trident […]*

Heub.

[…]*

W

[…]*

SNCZ […]*

[…]*

[…]*

[…]*

[…]*

[…]*- (acc.)

[…]*

[…]*

[…]* %

[…]*

''

''

[…]*

[…]*

B

[…]*

– […]*

[…]*

[…]*

Extract of original document No 8: Handwritten notes of
Waardals' representative

Year 1998

[…]*

(163) Exactly the same prices are indicated on Trident' internal
price instructions for July to August 1997 (121). It is also
indicated in these instructions
the prices are
‘minimum price levels' and that they ‘should not be
reduced without prior discussions with (name of
employee)', whose name refers to the person in Trident
who attended the cartel meetings.

that

(164) According to the same notes, Teknos was allocated to
Heubach at the price of DEM 3,35: ‘Teknos: Heub.: Dem
3,35'.

(168) The cartel meetings continued with the next one being
held in London on 19 January 1998 at the Jarvis Hotel
at Heathrow airport. A boardroom was booked and
invoiced to Trident (127). James Brown, Heubach, SNCZ,
Trident and Waardals attended this meeting (128).

(169) A note in the diary of the representative of Waardals on
2 January 1998 reads:
‘Meeting in London, Monday
19.1' (129). He
representative of
Waardals on 12 January 1998 of this meeting: ‘Meeting
in London Monday 19.1.98. … The meeting starts at 10
o'clock and the meeting room is reserved under the
name Trident' (130).

informed another

(170) Waardals' representative's handwritten note on a file

folder indicates: ‘… London 19.1.98…' (131).

(165) The last cartel meeting of year 1997 was held at the
Airport Hotel Gavinchi, in Hamburg on 16 October. It
James
was attended by representatives of Heubach,
Brown, SNCZ, Trident and Waardals (122).

(171) The diary of a representative of SNCZ on 19 January

1998 reads: ‘London, coordination' (132).

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(172) Pocket diary of 1998 of a representative of Heubach
‘London, Jarvis' (133). Also, another

reads on 19.1.1998:
diary reads on the same date states ‘UK' (134).

corresponding volumes
percentage they represent of the total volumes sold.

sold by Waardals and the

(173)

Information on quantities of zinc phosphate respectively
sold in Europe in the fourth calendar quarter of 1997
was also exchanged and the market share of each
competitor was calculated. A document handwritten on
Jarvis Hotel paper (135) contains calculation of market
shares
apparently
compare real market shares to previously agreed market
shares. Individual sales volumes indicated after ‘Trident'
(Trident), ‘Heubach' and ‘SNCZ' correspond exactly with
the figures that these companies had sent to VdMI for
the compilation of the statistics (136).

phosphate

regarding

zinc

and

(176) The table shows that the total volumes sold by all the
five producers in 1997 is […]* (tonnes). Waardals had
sold […]* (tonnes) which represents […]* of the total.
Then follows a calculation of […]* of the total volumes
[…]* equalling […]*; and a conclusion ‘too much sold
83 t'.

Extract of original document No 9 (137): handwritten notes of
Waardals' representative

Trident:

Heubach:

SNCZ:

J.B.:

W:

4.

(QTR.)

[…]*

[…]*

[…]*

[…]*

98

–

–

–

–

–

–

[…]*

[…]*

[…]*

405

[…]*

[…]*

[…]*

[…]*

……… […]* ……… […]* ……… […]*

[…]*

(178)

(177) According to the

calculation made by the

cartel
members at the meeting of 9 August 1994, Waardals
was allocated a […]* share of the market (140). The […]*
mentioned in the present handwritten notes refers to
that
is concluded that Waardals has
exceeded its share by 83 tonnes […]*.

figure and it

is

found at

also clear

from documents

It
the
investigation that the companies also fixed bottom zinc
phosphate prices at this meeting for various European
countries
Sweden,
Norway, Finland, Denmark,
Italy, Belgium and the
Netherlands). Handwritten notes (141) found at Waardals
first state that January was unstable: ./. DEM 0,20, and
then sets out bottom prices:

(the United Kingdom,

France,

(174) Another handwritten document (138)

found at
the
the representative of

investigation at
Waardals reads as follows:

the office of

Extract of original document No 10 (139):

ZP [in Europe]–97

[Total]

[QTR.] […]*

''

''

[…]*

[…]*

1.

2.

3.

4.

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

''…… […]* …… […]* …… […]*

Extract of original document No 11 (142): handwritten notes of
Waardals' representative

[Jan. unstable]: ./. […]*DEM

[…]*

GBP […]*

Norw. […]*

[Our share]

FRF […]*

SF: […]*

Sw. […]*

DK […]*

It […]*

Belg.: […]*

NLG: […]*

[…]* [of]

[…]*

[…]*

[Too much sold]

…

[…]*

83 t

[…]*

[…]*

(175) The first column on the top left of the document sets
out the aggregated total volumes of zinc phosphate sold
by the five producers during each calendar quarter in
1997, and the total aggregated amount sold in 1997. The
the
right-hand

column

table

sets

out

the

of

(179) Trident's

for

instructions

internal price

February
1998 (143) contained exactly the same prices as the
abovementioned Waardals' note for the sale of zinc
phosphate of ‘1 000 to 4 999 kilos' and ‘above 5 000
kilos'. It is also indicated in these instructions that the
prices are ‘minimum price levels' and that they ‘should
not be reduced without prior discussions with (name of
employee)', whose name refers to the employee of
Trident who attended the cartel meetings.

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(180) Customer allocation also took place at

this meeting;
small customers and International Paint were allocated
to James Brown (reference to the name of an employee).
The price for
the latter was also fixed (at GBP
1 240) (144), as the document shows: ‘United Kingdom –
(small customers to) (145) (name of employee) + Intern.
1 240'.

(181) The next cartel meeting was held on 20 April 1998 in
Paris at Hotel Novotel of Roissy-Charles de Gaulle
airport. The boardroom reservation was made under the
name of Silar. Heubach, James Brown, SNCZ, Trident
and Waardals attended this meeting (146).

(182) A handwritten note on a file folder of the representative

of Waardals indicates: ‘… Paris 20.4.98' (147).

(183) Pocket diary '98 of a representative of Heubach reads on
20 April 1998: ‘Paris (Novotel)' (148). Also, the diary of
another usual representative of Heubach indicates on
Monday 20 April 1998:
‘WE + (name of above
mentioned Heubach's employee), Paris' (149).

(184) Handwritten notes found at the investigation contain
market share calculations for the first quarter of 1998
and show that sensitive information was exchanged by
the producers (150).

Extract of original document No 12: handwritten notes of
Waardals' representative

J.B.

W

Trident

Heubach

SNCZ

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

(185)

Individual sales volume indicated after ‘Trident' (Trident
Alloys) and ‘SNCZ' match exactly with the figures that
these companies sent to VdMI for the compilation of
the statistics (151).

first

(186) The same notes indicate that bottom prices were fixed
for various European countries (the United Kingdom
(the
the
Netherlands, the Nordic countries and Italy). The first
price column concerns volumes above five tons. Where
two prices have been fixed, the latter concern small
quantities (1 000 to 4 999 kilos).

row), Germany,

Belgium,

France,

Extract of original document No 13 (152): handwritten notes of
Waardals' representative

not below

[…]*

([small quantities])

(- “ -)

[…]*

Germany:

[…]*

France:

[Belgium]

Holland:

[…]*

[…]*

[The North]: [as before]

[Italy]:

[…]*-

(187) The

said prices

correspond exactly with Trident's
internal price instructions for May 1998 (153) for the
sale of zinc phosphates of 1 000 to 4 999 kilos and
also indicated in these
is
above 5 000 kilos.
instructions that the prices are ‘minimum price levels'
and that
they ‘should not be reduced without prior
discussions with (name of employee)', whose name
refers to the employee of Trident who attended the
cartel meetings.

It

(188) A meeting of the cartel had been planned for 22 July
1998 in Amsterdam. Waardals was in charge of the
organisation and had booked a meeting room in the
Schiphol Airport Hilton Hotel. (154). However, after the
Commission and ESA investigations were carried out,
the reservation was cancelled (155).

2. LEGAL ASSESSMENT

2.1. COMPETENCE

(189) The arrangements set out above applied to the whole
territory of the EEA, as the cartel members had sales in
the Member States and in the EFTA
practically all
countries
EEA
Agreement (156).

parties

which

were

the

to

(190) The EEA Agreement, which contains provisions on
competition analogous to the Treaty, came into force on
1 January 1994. This Decision therefore includes the
the EEA
application of
the rules on competition of
the
to
53(1))
Agreement
arrangements to which objection is taken (157).

particular Article

(in

(191)

the arrangements appreciably affected
In so far as
competition and trade between Member States, Article
81 of the Treaty is applicable. In so far as the cartel
operations had an appreciable effect on trade between
EFTA countries being parties to the EEA Agreement and
the Community, Article 53 EEA is applicable.

(192)

(193)

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If an agreement or practice affects only trade between
Member States, the Commission retains competence and
applies Article 81 of the Treaty. On the other hand, if
an agreement affects only trade between the EFTA
States, the EFTA Surveillance Authority (ESA) alone is
competent and will apply the EEA competition rules
under Article 53 of the EEA Agreement (158).

(197)

In its PVC II judgment, the Court of First Instance (160)
stated that ‘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 the undertakings
to have expressed their joint intention to behave on the
(161).
market in a certain way'

In this case, the Commission is the competent authority
to apply both Article 81(1) of the Treaty and Article
53(1) of the EEA Agreement on the basis of Article 56
of
cartel had an
appreciable effect on trade between the Member States
of the Community (159).

the EEA Agreement

since

the

2.2. APPLICATION OF ARTICLE 81 OF THE EC TREATY AND

ARTICLE 53 OF THE EEA AGREEMENT

2.2.1. ARTICLE 81(1) OF THE EC TREATY AND ARTICLE

53(1) OF THE EEA AGREEMENT

all

EEA

agreements

Agreement,

(194) Article 81(1) of the EC Treaty and Article 53(1) of the
EEA Agreement respectively prohibit as incompatible
with the common market and with the functioning of
the
between
undertakings, decisions by associations of undertakings
or concerted practices which may affect trade between
Member States or trade between the Contracting Parties
and which have as their object or effect the prevention,
restriction or distortion of competition within the
common market or the territory covered by the EEA
Agreement and in particular those which directly or
indirectly fix purchase or selling prices or any other
limit or control production and
trading conditions,
markets, or share markets or sources of supply.

2.2.2. AGREEMENTS AND CONCERTED PRACTICES

(195) Article 81(1) of the EC Treaty and Article 53(1) of the
agreements, decisions of

EEA Agreement prohibit
associations and concerted practices.

(198) Thus, an agreement for the purposes of Article 81(1) of
the Treaty or Article 53(1) of the EEA Agreement does
not require the same certainty as would be necessary for
the enforcement of a commercial contract at civil law.
long
Moreover,
duration, the term ‘agreement' 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.

in the case of a complex cartel of

(199) Article 81 of the Treaty and Article 53 EEA distinguish
between ‘agreements between undertakings',
‘concerted
practices' and ‘decisions by association of undertakings'.
The object of the notion of concerted practice 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 (162).

(200) 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 and the EEA Agreement, according to which each
economic operator must determine independently the
commercial policy which he intends to adopt in the
common market. Although
of
requirement
independence does not deprive undertakings of
the
right to adapt themselves intelligently to the existing or
anticipated conduct of
strictly
precludes any direct or indirect contact between such
operators
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 (163).

the objet or effect whereof

their competitors,

is either

that

it

(196) An agreement can be said to exist when the parties
adhere to a common plan which limits or tends to limit
their individual commercial conduct by determining the
lines of their mutual action or 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.

(201) Thus conduct may fall under Article 81(1) of the EC
Treaty or under Article 53(1) of the EEA Agreement as
a ‘concerted practice' even where the parties have not
subscribed to a common plan defining their action in
the market but adopt or adhere to collusive devices
which facilitate the coordination of their commercial
behaviour (164).

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(202) Although in terms of Article 81(1) of the EC Treaty and
Article 53(1) of the EEA Agreement the concept of a
concerted practice requires not only concertation but
also conduct on the market
resulting from the
concertation and having a causal connection with it, it
may be presumed, subject to proof to the contrary to be
provided by the parties concerned, that undertakings
taking part in such a concertation and remaining active
in the market will
the information
exchanged with competitors in determining their own
the more so when the
conduct on the market, all
concertation occurs on a regular basis and over a long
period (165).

take account of

(203)

It is not necessary that the Commission be obliged to
categorise an infringement as exclusively an agreement
or a concerted practice. The concepts are fluid and may
overlap. Indeed, it may not even be possible realistically
to make any such distinction, as an infringement may
present simultaneously the characteristics of each form
of prohibited conduct, while considered in isolation
some of its manifestations could accurately be described
It would, however, be
as one rather than the other.
artificial analytically to subdivide what
is clearly a
continuing common enterprise having one and the
same overall objective into several discrete forms of
infringement. A cartel may therefore be an agreement
and a concerted practice at the same time (166).

(204) Each participant in the agreement and/or the concerted
practice may play its own particular role. One or more
may exercise a dominant role as ringleader(s). Internal
conflicts and rivalries, or even cheating, will not,
however, prevent the arrangement from constituting an
agreement or concerted practice for the purposes of
Article 81(1) of the EC Treaty or Article 53(1) of the
EEA Agreement where there is a single common and
continuing objective. A complex cartel may 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.

(205) Whilst not contesting the facts set out in the Statement
of Objections, Heubach contends in its written reply
that the Commission has not sufficiently established the
existence of an agreement in the meaning of Article 81
of the EC Treaty and Article 53 of the EEA Agreement.
According
has
demonstrated that there was an intention to behave in a
certain way and that it resulted in a restriction in the
independence of the undertakings concerned.

to Heubach,

Commission

the

(206) This contention must be emphatically rejected. In the
light of the facts, which are not contested by Heubach,
nor by any other addressee of this Decision, there was,
as early as on 24 March 1994, an explicit joint intention
to cartellise the zinc phosphate market and to act

This

concrete
resulted
accordingly.
implementation, over four years, of an overall plan to
eliminate competition in the product market, which as
described
continuing
infringement.

below constituted

single

the

in

a

2.2.3. NATURE OF THE INFRINGEMENT IN THE PRESENT

CASE

(207) Following preliminary contacts in early 1990's, the five
producers of zinc phosphate — Britannia, James Brown,
Heubach, SNCZ and Waardals — met on 24 March
1994 in London and agreed the basic principles by
which they would cartelise the European market for
zinc phosphate. They subsequently met on 3 May and
on 9 August 1994 in the same city and agreed on the
details of the implementation of the cartel.

(208) This

plan,

to which

subscribed, was
implemented over a period of more than four years
employing the same mechanisms and pursuing the same
common purpose of eliminating competition.

they

all

(209) The working out of the plan in regular meetings did not
give rise to discrete ‘agreements' but constitutes the
implementation of the same overall and illegal scheme.

steadily

(210) Given the common design and common objective which
the
producers
eliminating
competition in the
the
in question
Commission considers that
constituted a single continuing infringement of Article
81(1) of the EC Treaty and of Article 53(1) of the EEA
Agreement.

zinc phosphate

the conduct

industry,

pursued

of

2.2.4. RESTRICTION OF COMPETITION

(211) The agreement in the present case had the object and

effect of restricting competition.

(212) Article 81(1) of the EC Treaty and Article 53(1) of the
restrictive of

EEA Agreement expressly mention as
competition agreements which, inter alia:

— directly or indirectly fix selling prices or any other

trading conditions,

— limit or control production, markets or technical

development,

— share markets.

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the

(213) These are the essential objectives and characteristics of
the horizontal arrangements under consideration in the
present case. Price being the main instrument of
competition, in particular with respect to homogenous
and
products,
all
mechanisms
ultimately aimed at increasing the price to their benefit
and above the level which would be determined by
undistorted market conditions. Market sharing and price
fixing by their very nature restrict competition within
the EC Treaty and
the meaning of Article 81(1) of
Article 53(1) of the EEA Agreement.

arrangements
the producers were

various
adopted by

collusive

(214) The present cartel has to be considered as a whole and
in the light of the totality of the circumstances, but the
principal aspects of
the complex of agreements and
arrangements which can be characterised as restrictions
of competition are:

— allocating market share quotas,

— fixing of prices,

— allocating customers.

(215) These principal aspects were implemented by the cartel

members mainly by:

2.2.5. EFFECT ON TRADE MEMBER STATES AND BETWEEN

EEA CONTRACTING PARTIES

(218) The continuing agreement between the producers had
an appreciable effect on trade between Member States
and between EEA contracting parties.

(219) Western Europe has

traditionally been the most
important market for zinc phosphate. Sales in Europe
represent more than 60 % of
the worldwide output.
With the exception of James Brown, who sells most of
its production in three Member States, the four other
European zinc phosphate producers sell in virtually all
countries of the EEA. Heubach, SNCZ and Trident all
export over 60 % of
total zinc phosphate
their
turnover (168).Waardals being an important producer of
zinc phosphate with a market share of over 20 % of the
west European market and significant sales in many
Member States of
there is also
significant zinc phosphate trade between the contracting
parties to the EEA.

the Community (169),

(220) As between the

the
cartel members
allocation of sales quotas must have resulted, or was
likely to result,
trade
patterns from the course they would otherwise have
followed.

in the automatic diversion of

themselves,

— devising and applying a reporting and monitoring
system to ensure the implementation of restrictive
agreements, notably through the mutual exchange
of individual sales data,

(221) Therefore, over the period considered, the continuing
cartel agreement between the zinc phosphate producers
had an appreciable effect upon trade between the
Member States and between the Contracting Parties to
the EEA.

— adapting individual conduct and pricing in order to

ensure the maintenance of the agreed quotas,

— participating in regular meetings and having other
contacts in order to agree the above restrictions and
to implement and/or modify them as required.

the cartel members have not at all

(216) The argument, put forward by Heubach, that the goals
of the cartel were not systematically achieved in the way
the cartel participants would have liked, and that no
specific enforcement mechanism was set up, other than
the mutual pressure brought to bear on the respective
members of the cartel, must be considered as irrelevant.
Even if
times
respected their agreement,
it does not mean that the
agreement did not exist. As the Court of Justice has
confirmed
by
undertakings in meetings that have an anti-competitive
object has
or
de
strengthening a cartel and the fact that an undertaking
does not act on the outcome of those meetings is not
such as to relieve it of responsibility for the fact of its
it has publicly
participation in the
distanced itself from what was agreed in them (167).

cartel, unless

participation

facto of

case-law,

creating

in its

effect

the

the

2.2.6. PROVISIONS OF THE COMPETITION RULES

APPLICABLE TO AUSTRIA, FINLAND, ICELAND,
LIECHTENSTEIN, NORWAY AND SWEDEN

(222)

In the period from 1 January to 31 December 1994, the
provisions of the EEA Agreement applied to the four
EFTA Member States which had joined the EEA; the
cartel thus constituted an infringement of Article 53(1)
of the EEA Agreement as well as of Article 81(1) of the
EC Treaty, and the Commission is competent to apply
both provisions. The operation of the cartel
in these
four EFTA States during this one-year period falls under
Article 53(1) of the EEA Agreement.

(223) After the accession of Austria, Finland and Sweden to
the Community on 1 January 1995, Article 81(1) of the
EC Treaty became applicable to the cartel in so far as it
affected those markets. The operation of the cartel
in
Norway remained an infringement of Article 53(1) of
the EEA Agreement.

(217)

In any case, in the present case, the cartel members did
enforce, monitor and respect their agreement.

(224)

In practice, it follows from the foregoing that in so far
as the cartel operated in Austria, Finland, and Sweden, it
constituted a violation of the EEA competition rules for

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(i.e from
the first months of operation of the cartel
March 1994 to 31 December 1994) and a violation of
the Community competition rules from 1 January 1995.

2.2.7. DURATION OF THE INFRINGEMENT

(225) Although there are indications that anti-competitive
contacts between zinc phosphate producers did take
place before the initial multilateral meeting on 24 March
1994, the Commission has in the present case limited
the competition rules and the
its assessment under
application of any fines to the period from 24 March
1994, the date of the first multilateral cartel meeting,
until 13 May 1998, the date of the Commission and
ESA investigations.

(226) The participation in the infringement of Britannia (until
15 March 1997, when it was replaced by Trident),
Heubach, James Brown, SNCZ and Waardals from 24
March 1994 onwards is established by the participation
in the first multilateral cartel meeting of their respective
higher
Chairmen, General
including
Managers and Managing Directors and Managers as the
case may be (see recital 71).

executives,

(227) On 24 March 1994, it was decided to fix a ‘status quo'
on quantities of zinc phosphate supplied in Europe. It
was also decided that the allocated market shares would
be agreed upon with reference to the sales figures of
1991 to 1993. The setting-up of a monitoring system
the
that would allow to control
agreement was also decided. It was also decided that
prices should not be too different from one country to
another, so that the product would not be shifted across
borders. Finally, there was an agreement to have another
meeting in the future.

respect of

the

(228) The Commission concludes from the foregoing that the
an
this Decision

addressees
anti-competitive agreement on 24 March 1994.

entered

into

of

(229) The cartel continued at

least until

the simultaneous
Commission and ESA investigations on 13 May 1998.
All five producers were present at the last identified
cartel meeting in April 1998. The fact that the next
cartel meeting was due to take place in Amsterdam on
22 July 1998 demonstrates
infringement
continued in any event until the date on which the
investigations took place.

that

the

long before Waardals
take
‘admittedly it did not
concluded it had to cooperate and started providing
sales volumes again' (171). Waardals
submits
however that ‘after having pulled out of the Club in
April 1995, Waardals did obtain an order from Teknos,
on its own and outside the sharing agreement operated
by the others, and delivered a container to Teknos on
week 16' (172).

further

(231) The Commission takes the view that the arguments put
forward by Waardals
temporary
withdrawal do not suffice to get to the conclusion that
Waardals did not infringe Article 81(1) of the EC Treaty
and Article 53(1) of the EEA Agreement during that
period of time.

in respect of

its

(232) First, Waardals took part in a meeting with Heubach on
12 June 1995, on the same date as a cartel meeting, the
existence of which is not contested by the other
addressees of this Decision. Whilst it is true that the
date in question corresponds with the period during
which Waardals claims it pulled out of the meeting, the
presence of a representative of Waardals on the same
a
date
representative of Heubach show that Waardals did not
really withdraw from the cartel.

that he met

in London,

and the

fact

(233) Secondly, in any event, the ‘withdrawal' of Waardals, if it
occurred at all, was of very short duration. The sole
cartel meeting which, allegedly, was not attended by
that of 12 June 1995, as Waardals
Waardals was
attended the preceding (27 March 1995) and subsequent
(15 September 1995) cartel meetings. Moreover, as
already mentioned in the preceding paragraph,
its
non-attendance was not real. Moreover, the company
totally
has not
autonomous commercial behaviour. The knowledge that
the zinc phosphate cartel was still in place, must have
had a bearing, over this period, on the commercial
decisions made by Waardals.

established that

resulted in a

it

(234) The Commission therefore concludes

that Waardals
participated in the infringement from 24 March 1994
until 13 May 1998.

2.2.8. ADDRESSEES

(230) Waardals contends that it pulled out from the cartel in
April 1995 ‘and was out of the club for five or six
months' (170). The company contends that this should be
taken into consideration by the Commission, although

(235)

In order to identify the addressees of this Decision, it is
the
necessary to determine to which legal entities
responsibility for the infringement should be imputed.

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2.2.8.1. Principles applicable

(243)

(236)

In order to determine whether a parent company should
be held responsible for
the unlawful conduct of a
subsidiary, it is necessary to establish that the subsidiary
‘does not decide independently upon its own conduct
on the market, but carries out, in all material respects,
the instructions given to it by the parent company' (173).

In its reply to the Statement of Objections, Britannia
says that it ceased all economic and trading activities
after the business assets were transferred to Trident.
Britannia says it continued to exist as a legal entity, but
claims to be a mere shell company, an not a functioning
economic entity. Britannia says that in accordance to
the ‘succession' principle to be applied in such case,
pursuant
the economic and
functional successor Trident should be held liable for
the entire period of infringement.

to Community case-law,

(237) When an infringement of Article 81(1) of the Treaty or
Article 53(1) of the EEA Agreement is found to have
is
been committed over a given period of
necessary to identify the natural or legal person who
was responsible for the operation of the undertaking at
the time when the infringement was committed, so that
it can answer for it.

time,

it

(238) When an undertaking committed an infringement of
Article 81(1) of the EC Treaty or Article 53(1) of the
and when this undertaking later
EEA Agreement
disposed of
the
infringement and withdrew from the market concerned,
the undertaking in question will still be held responsible
for the infringement if it is still in existence (174).

the assets that were the vehicle of

(239)

If the undertaking which has acquired the assets carries
on the violation of Article 81(1) of the EC Treaty or
liability for the
Article 53(1) of the EEA Agreement,
infringement should be apportioned between the seller
and the acquirer of the infringing assets (175).

2.2.8.2. Addressees

(240) Over the entire period of reference for the establishment
of the infringement, Heubach, James Brown, SNCZ and
Waardals participated directly in the cartel. They will
consequently be addressees of this Decision.

(241)

From 15 March 1997 onwards, Trident participated
actively in the cartel. Therefore, the latter will be an
addressee of this Decision.

(242) Prior to 15 March 1997, Britannia, the predecessor of
Trident, was actively involved in the cartel operations.
Although Britannia sold its zinc phosphate business on
15 March 1997, it is still in existence. Over the period
March 1994 to 15 March 1997 Britannia's zinc
phosphate business did not have any separate legal
personality. The company can therefore not claim that it
was not aware of anti-competitive activities in the zinc
phosphate business. Consequently, Britannia will be held
responsible for the infringement from March 1994 until
15 March 1997 when the zinc phosphate business was
divested and acquired by Trident.

(244)

that

In addition, Britannia purports
any contrary
to
conclusion from the Commission would amount
unfair and unequal treatment: if instead of operating a
transfer of assets, Britannia had been merged into the
newly created Trident, the legal personality of Britannia
would have disappeared, thus passing on the totality of
the liability to Trident. Furthermore, if the management
buy-out had been structured as a share sale, so that the
the zinc phosphate business had
management of
purchased the shares of Britannia,
then the Trident
would have been held responsible for the entire period
of the infringement.

(245) Trident opposes Britannia's

analysis. According to
Trident, in view of the continuing legal existence of its
predecessor Britannia and in conformity with the
the
current
infringement should be apportioned between Britannia
and Trident on the basis of
their
respective involvement in the infringement.

the duration of

case-law of

the Court,

liability

for

(246) Trident

if

that

even

submits

nevertheless

the
Commission took the view that the basic amount of any
fine should be set separately with regard to Trident and
Britannia, ‘it would be unfair if it meant that the sum of
the two fines were higher than any fine which would
have been imposed on a single owner for the whole
period of Trident and Britannia's combined alleged
infringements' (176).

the ‘economic continuity'

(247) The Commission must reject the arguments put forward
by Britannia. It is clear from the case-law of the Court
is to be applied
that
exclusively
entity which
case where
committed the infringement has ceased to exist in law.
When such entity is still in existence,
it must be held
liable for the infringement, irrespective of the nature of
its current activities in the market.

in the

test

the

(248) Over the period where it actively took part

in the
infringement, Britannia and its shareholders benefited
from its illegal behaviour. Although Britannia ceased to

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for

responsibility

it still has assets. It must
trade after 15 March 1997,
therefore bear
infringement
committed over the relevant period of time. The fact
that the transfer of the ‘infringing assets' could have
leading to differing
been operated in a different way,
liability, has no
conclusions as to the attribution of
bearing on that conclusion.

the

for

the whole of

(249) The argument of Trident according to which the sum of
the two fines that might be imposed should not be
higher than any single fine which would have been
imposed on a single owner
the
infringement must also be rejected.
In setting the
amount of any fine, the Commission takes into account
the period of time during which the infringment was
committed by each undertaking. Moreover, when two
distinct undertakings commit an infringement, even in
the case where one undertaking had succeeded to the
other, they must separately endorse responsibility for
the infringement committed, and the fine applicable to
them must be calculated in accordance to the normal
practice of the Commission. Any ‘splitting' of the fine
between the two would confer on them an unjustifiable
advantage.

(250) When the management buy-out of the zinc phosphate
business was completed and as Trident was created on
15 March 1997, a new legal entity was formed and a
business
strategy was defined. The management of
Trident could at this occasion have decided to put an
end to the participation of the business into the cartel.
It did not do so. A new decision to keep on with the
illegal behaviour was then at least implicitly made. This
fully justifies the imposition of a fine on both Britannia
and Trident.

(251) On the basis of the considerations set out above, this
following

addressed

the

be

to

Decision will
undertakings:

the EEA Agreement

the
53 of
undertakings concerned to bring such infringement to
an end in accordance with Article 3 of Council
Regulation No 17 (177).

it may require

(253)

In the present case the participants in the cartel went to
considerable lengths to conceal their unlawful conduct.
Virtually all documentary traces of the activities of the
cartel were suppressed: no minutes, records,
lists of
participants or invitations were maintained.

(254) The participants in the cartel continued to provide the
trade association with statistical information for months
after the Commission had carried out its investigations.
Four of
(Heubach, SNCZ,
Trident and James Brown) established a new association
in which market outlooks and statistics were discussed.

the five cartel members

(255)

In these circumstances,
the Commission stated in its
Statement of Objections that it was not possible to say
with certainty that
the infringement had ceased as
regards all the participants in the cartel.

(256)

In their replies to the Statement of Objections, Heubach,
SNCZ and Trident claim that they put an end to their
participation in the cartel as soon as investigations were
carried out. Heubach and SNCZ also state that
the
meeting that
the investigation had
took place after
perfectly legitimate goals and were totally lawful.

(257) Notwithstanding these assertions and for the avoidance
of doubt, it is necessary for the Commission to require
the undertakings to which this Decision is addressed to
they have not
bring the infringement
already done so, and henceforth to refrain from any
agreement or concerted practice which may have the
same or similar object or effect.

to an end,

if

— Britannia Alloys & Chemicals Limited,

— Dr. Hans Heubach GmbH & Co. KG,

— James M. Brown Limited,

— Société Nouvelle des Couleurs Zinciques SA,

— Trident Alloys Limited,

— Waardals Kjemiske Fabrikker A/S.

2.3. REMEDIES

2.3.2. ARTICLE 15(2) OF COUNCIL REGULATION No 17

2.3.2.1. General considerations

(258) Under Article 15(2) of Council Regulation No 17 (178),
the Commission may by decision impose upon
undertakings fines of from one thousand to one million
euro, or a sum in excess thereof not exceeding 10 % of
the turnover in the preceding business year of each of
infringement
the undertakings participating in the
where, either intentionally or negligently, they infringe
Article 81(1) of the EC Treaty or Article 53(1) of the
EEA Agreement.

2.3.1. ARTICLE 3 OF COUNCIL REGULATION No 17

(259)

(252) Where

an
infringement of Article 81 of the EC Treaty or Article

the Commission finds

there

that

is

to

regard

In fixing the amount of any fine the Commission must
and
have
circumstances
particularly the gravity and the duration of
the
infringement, which are the two criteria explicitly
referred to in Article 15(2) of Regulation No 17.

relevant

all

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(260) The role played by each undertaking party to the
infringement will be assessed on an individual basis. In
particular,
in the fine
imposed any aggravating or mitigating circumstances
and will apply, as appropriate,
the Notice on the
non-imposition or reduction of fines in cartel cases (the
‘Leniency Notice') (179).

the Commission will

reflect

2.3.2.2. Basic amount of the fines

(261) The basic amount is determined according to the gravity

and duration of the infringement.

Gravity

(262)

(263)

In assessing the gravity of
Commission will take account of its nature,
impact on the market and the size of
geographic market.

the

the
its actual
the relevant

infringement,

Nature of the infringement

follows

foregoing

from the

It
the present
infringement consisted mainly of market-sharing and
price-fixing, which are by their nature very serious
violations of Articles 81(1) of the Treaty and 53(1) of
the EEA Agreement.

that

(264) The cartel constituted a deliberate infringement of
Article 81(1) of the EC Treaty and Article 53(1) of the
EEA Agreement. With the full knowledge that
their
actions restrict competition, the producers combined to
set up a secret and institutionalised system designed to
restrict competition in the zinc phosphate market. In
any event,
to conclude that an infringement was
intentional, it is not even necessary for an undertaking
to have been aware that it was infringing Article 81(1)
of
the EEA
Agreement (180). It is sufficient that it could not have
been unaware that
the contested conduct had as its
object the restriction of competition. This was doubtless
the case as far as the zinc phosphate cartel is concerned.

the EC Treaty and Article 53(1) of

(265) The cartel arrangements involved all major operators in
the EEA and were conceived, directed and encouraged at
high levels in each participating company and operated
entirely to the benefit of the participating producers and
to the detriment of their customers.

(266)

In their replies to the Statement of Objections,
the
addressees of this Decision have put forward a number
of arguments according to which the Commission
the
should conclude
anti-competitive agreement constituted only a serious,

in view of

its nature,

that

but not a very serious infringement of the competition
rules.

(267) Britannia, Heubach and Trident

that

submit

the
Commission should take in consideration the fact that
that market share quotas were not allocated in the EEA
on a country-by-country basis. Volume allocations were
in the form of western Europe-wide quotas, and there
countries within
was no subdivision for different
Europe.

(268) Heubach contends that it is only from 1996 onwards
that the cartel participants discussed and fixed the prices
for the product. In support of this assertion, Heubach
quotes a sentence of paragraph 99 of the Commission's
‘Handwritten
Statement of Objections, which reads:
notes of
later meetings put in evidence that national
“recommended” prices were widely used'. As the first
contemporaneous document
showing specific prices
fixed country by country quoted by the Commission
consists of handwritten notes taken at a meeting on 21
May 1996, Heubach jumps
to the conclusion that
price-fixing started only from that date.

(269) Britannia states on its part

that

the cartel generally
aimed at
setting a European benchmark price, by
reference to the DEM price, which was converted into
local currency: ‘the general aim was to create a uniform
European benchmark price and not separate national
prices' (181). As to Trident,
it contends that ‘the exact
prices
rigidly fixed',
although it ‘agrees that prices were discussed and that it
the
reflected the recommended prices discussed at
meetings in its internal price list' (182).

for zinc phosphate were not

(270) Britannia, Heubach and Trident, also submit that the
allocation of customers was not a systematic feature of
the cartel agreement, and that this practice occurred
only with regard to one customer, namely Teknos.
this customer was shared out
Heubach submits that
because it was a traditional customer of Waardals,
which did not accept that the other cartel participants
supplied it. However, Trident submits that ‘allocation of
Teknos at
the meetings arose partly because Teknos
demanded particularly low prices' (183).

(271) Finally, Britannia, Heubach, SNCZ and Trident submit
that no ‘enforcement' mechanism was used and that this
should be taken into account in so far as this made it
easier for some cartel participants to cheat upon the
others.

(272) The Commission rejects the contention that the above
the

should lead to the
elements
infringement was only of a serious nature.

conclusion that

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(273)

It is clear that price-fixing and market-sharing cartels by
nature jeopardise the proper functioning of the single
market and therefore constitute one of
the worst
infringements of competition law. There can be no
distinction, with regard to their gravity, between price
and sales quotas fixed on a transnational/European basis
and those fixed on a national basis.

in no way contradicts

(274) Heubach's assertion that price-fixing occurred only from
1996 onwards must be rejected. Firstly, the quotation of
the Commission's sentence referred to in recital 268 is
clearly misleading. The Commission stated here that
concrete illustrations of the price-fixing practice can be
found in contemporaneous handwritten notes of later
cartel meetings. This
the
Commission's finding that discussion on prices was a
feature of the cartel agreement as early as in 1994.
Secondly, whilst it is true that the initial rationale of the
cartel was to secure price rises through compliance to
the allocated market shares, Waardals declares that as
early as the first cartel meeting on 24 March 1994 it
was ‘decided that prices should not be too different
from one country to another so those products would
not be shifted across borders' (184). As for Trident, it says
in its statement that ‘price levels were also discussed at
each meeting. At each meeting a price per tonne was
set in sterling for the market of the United Kingdom
and a price in deutschmarks was set for the German
market. At the initials meetings,
local currency prices
for each territory were set (…)' (185).

(275) The fact that the prices agreed upon during the cartel
meetings might have been, from time to time, subject to
negotiations with customers can in no way lead to the
conclusion that the infringement was of a lesser gravity.
The implementation of a cartel agreement, which is a
plan to artificially raise prices above the level
they
competitive
would
conditions, inherently meets resistance from customers.

attained

normal

under

have

is

there

evidence

single customer, does not detract from the conclusion
in question was of a very
that the cartel agreement
serious nature. Moreover,
that
customers allocation did not occur solely in the case of
Teknos. For example, as mentioned in recital 122, notes
of Waardals show that allocation of customers and the
possibility of selling to Jotun were discussed in that
meeting. Also, as referred to in recital 180, handwritten
notes from the cartel meeting of 19 January 1998 reveal
that small customers as well as International Paint were
allocated to James Brown.

(278) The Commission therefore considers that the present
infringement constituted by its nature a very serious
infringement of Article 81(1) of
the EC Treaty and
Article 53(1) of the EEA Agreement.

The actual impact of the infringement on the zinc phosphate
market in the EEA

(279) The actual impact in the market of an anti-competitive
arrangement cannot always be measured in a reliable
manner. In the case of a collusion consisting, inter alia,
of a collaborative strategy of higher pricing, the fact that
a number of external factors may simultaneously have
affected the price development of the product makes it
extremely difficult to draw conclusions of the relative
importance of all possible causal effects.

(280)

(281)

(276) The absence of a mechanism of enforcement does not
mitigate the gravity of the infringement. Even if the
cartel agreement was of the nature of a ‘gentlemen's
agreement', the cartel participants were clearly expected
to strictly adhere to their market shares and a rather
sophisticated system was put in place, via successive
trade organisations,
to render possible the mutual
control of each member's behaviour on the market. The
fact that the enforcement of the sales quotas was solely
achieved through pressure brought
to bear on the
members during the cartel meetings does not allow to
draw the conclusion that the infringement was of a
lesser gravity.

the actual

In any event,
impact of a complex of
agreements in the market depends on, firstly, whether
these arrangements where implemented and, secondly,
these arrangements
whether
produced an effect in the market.

the implementation of

as

the

agreements were
complex of
In so far
implemented,
founded to
the Commission is well
consider that this had an actual impact in the market.
There is no need to quantify in detail the extent of this
actual impact when this is not feasible in regard of the
facts concerned.

(277) Finally,

that customer allocation may have
happened sporadically, or indeed only in the case of one

the fact

(282) To the greatest extent possible, a distinction is drawn
the
between the question of
agreements and the question of their actual impact in

the implementation of

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there is, understandably,
the market. None the less,
some overlap between the evidence used to reach
conclusions on these two points.

Implementation of the illegal scheme

(283) The cartel agreements considered above were carefully

implemented.

(284) From 9 August 1994 onwards (the day on which the
market shares were allocated) and at the occasion of
each subsequent cartel meeting, the actual sales of each
company were disclosed and compared to the quotas
initially agreed. The first meeting of each year was the
occasion of updating the annual western European
market share allocated to each cartel participant.

territory.

(285) Price levels were discussed at each cartel meeting, where
a price per tonne was set in the local currency of each
relevant
for each
country, but later on the price in DEM set for Germany
was
simply converted into the relevant currencies.
Trident confirmed that its internal price list reflected the
price agreed at the latest cartel meeting.

Initially a price was set

(286) The allocation of at least a customer was implemented:
the account of
the Finnish company Teknos was
effectively shared out by the cartel participants (see
recital 277).

(287) The parties devised and applied a detailed reporting and
monitoring system to ensure implementation of
the
quotas. Each individual firm's level of compliance was
regularly monitored.

Effect of the infringement on the zinc phosphate market

(288) With regard to what precedes and in the light of the
efforts put by each participant into the organisation of
practical
of
effectiveness
the
implementation cannot be questioned.

cartel,

the

the

the

that

(289) Since it was carefully implemented,
infringement,

the Commission
considers
by
committed
undertakings which during the period covered by this
Decision covered over 90 % of the EEA-wide market,
had a real impact on this market. As the arrangements
were specifically aimed at restricting sales quantities,
and raising prices higher than they would otherwise
have been and restricting sales to certain customers,
they must have altered the normal pattern of market
behaviour and therefore have had an actual impact in
the market.

(290) Britannia

and Trident, however,

the
infringement has a very limited impact on the market as
the
the
participants
market-sharing agreement.

contend that

respect

cartel

not

did

(291) Failure to adhere to the agreed prices is also put
forward by Britannia, Heubach, SNCZ, Trident and
Waardals. All of them contend that there was no impact
on the market, as the fixed prices were not respected
and competition continued to prevail. Waardals states in
particular
its price war with Britannia (later
that
Trident) never really stopped.

(292) Britannia, Heubach and Trident submit that the setting
of the prices for zinc phosphate was largely dependent
on the variations in price of metal zinc, used as a raw
material for the production of zinc phosphate. Given
that the raw material represents some 50 % of the sales
price, the strong variation in the price of metal zinc
would have made it impossible to artificially increase
the sales margin.

that

(293) Britannia, Heubach,
their

James Brown, SNCZ and Trident
submit
primarily
multinational companies, enjoy strong buying power.
This allegedly had a ‘capping effect' on the prices, which
made their increase virtually impossible.

clients, which

are

(294) Trident further submits that exchanges rate fluctuations

may have hindered the control of prices.

(295) Heubach contends that the infringement had no impact
on the final consumers, as zinc phosphate represent
only a small ingredient in paints.

(296) Finally, SNCZ submits that the potential substitutability
of other products to zinc phosphate demonstrates that
the infringement has no actual impact.

other

(297) All these arguments must be dismissed. The fact that the
results
sought by the cartel participants were not
entirely achieved does not prove in any way that the
implementation of the cartel agreements had no effects
in the market. In particular, the potential substitutability
of
not
demonstrated. SNCZ refers merely to the fact that one
customer would have replaced zinc phosphate by
calcium phosphate, but does not support this assertion
by any concrete elements. SNCZ even acknowledges at
though the use of calcium is
the same time that
small
it
developing,
quantities' (186).

phosphate

relatively

products

‘used

zinc

still

for

in

is

is

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(298) Finally, it is inconceivable that the parties would have
repeatedly agreed to meet in locations across the world
to allocate sales quotas, fix prices and allocate customers
over such a long period, having regard, inter alia, to the
risks involved, if they had perceived the cartel as having
impact on the zinc phosphate
no, or only a limited,
market.

The size of the relevant geographic market

(299) The cartel covered the whole of the EEA, nearly every
part of which was under the influence of the collusion.
For the purposes of calculating gravity, the Commission
therefore considers the entirety of the EEA to have been
affected by the cartel.

(305)

it will be necessary,

In the circumstances of this case, which involves several
undertakings,
in setting the basic
amount of the fines, to take account of the specific
weight and therefore the real
impact of the offending
conduct of each undertaking on competition.

(306) For this purpose, the undertakings can be divided into
two categories according to their relative importance in
the market concerned.

undertaking

(307) As the basis for comparing the relative importance of
an
the
Commission considers it appropriate in the present case
to take the EEA-wide product turnover. The comparison
is made on the basis of the EEA-wide product turnover
in the last year of the infringement.

the market

concerned,

in

Conclusion of the Commission on the gravity of the
infringement

(308)

(300) Taking into account the nature of the behaviour under
scrutiny, its actual impact on the zinc phosphate market
and the fact that it covered the whole of the common
market and, following its creation, the whole EEA, the
Commission considers that the undertakings concerned
by this Decision have committed an infringement of
Article 81(1) of the EC Treaty and Article 53(1) of the
EEA Agreement, which was very serious.

It is clear from the table at recital 50 and from the
information available to the Commission that Britannia
(from March 1997
(before 15 March 1997), Trident
onwards), Heubach, SNCZ and Waardals were the major
producers of zinc phosphate in the EEA, with rather
similar market shares above or around […]* %. They
will
James
therefore be placed in the first category.
Brown, which had a significantly lower market share in
the EEA market, will be placed in the second category.

(301) Britannia, Heubach,

SNCZ Trident

and Waardals
contend in their replies that the product market is of
very small size, with an annual value of approximately
EUR 15 to 16 million annually. Britannia submits in
particular in this respect that the infringement should
be considered as serious, and not very serious.

(302) The Commission underlines that a clear distinction must
the
be made between the question of
impact of the
product market and that of the actual
infringement on this product market.
the
is not
It
practice of the Commission to consider the size of the
product market as a relevant factor to assess gravity.

the size of

(303) Nevertheless, without prejudice to the very serious
nature of an infringement, the Commission will in this
case take into consideration the limited size of
the
product market.

Differential treatment

(309) On the basis of the foregoing, the appropriate starting
point
the
for a fine resulting from the criterion of
relative importance in the market concerned is for each
category as follows:

— Britannia, Heubach, SNCZ, Trident and Waardals:

EUR 3 million,

— James M. Brown: EUR 750 000.

Duration of the infringement

(310) As mentioned in recitals 225 to 229, the Commission
James Brown, SNCZ and
that Heubach,
considers
Waardals infringed Article 81(1) of
the Treaty and
Article 53(1) of the EEA Agreement from 24 March
1994 until 13 May 1998. They
committed an
infringement of medium duration, of four years and one
month. The starting amount of the fines determined for
gravity is therefore increased by 40 % for each company.

(304) Although the infringement constitutes a very serious
infringement, it is possible for the Commission to apply
differential treatment to undertakings in order to take
account of
the
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 effective economic capacity of

(311) Britannia infringed Article 81(1) of

the Treaty and
Article 53(1) of the EEA Agreement from 24 March
1994 until 15 March 1997. It committed a infringement
of medium duration, of two years and eleven months.
The starting amount of the fine determined for gravity
is therefore increased by 25 %.

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(312) Trident infringed Article 81(1) of the Treaty and Article
53(1) of the EEA Agreement from 15 March 1997 until
13 May 1998. It committed an infringement of medium
duration, of one year and one month. The starting
amount of the fine determined for gravity is therefore
increased by 10 %.

(318) Waardals, contends that, for its part, it was contacted by
the Managing Director of Heubach in early 1994, and
that
the latter invited representatives of Waardals in
London to an informal meeting (the cartel meeting of
24 March 1994) to talk about zinc phosphate. Waardals
mention that ‘the invitation was also made on behalf of
Britannia' (189).

Conclusion on the basic amounts

(313) The Commission accordingly sets the basic amounts of

the fines as follows:

— Britannia: EUR 3,75 million,

(319)

In the light of the above, the Commission considers that
the cartel was a joint
the
competitors in the zinc phosphate sector, and that no
specific ringleader can therefore be identified.

initiative of most of

— Heubach: EUR 4,2 million,

2.3.2.4. Attenuating circumstances

— James Brown: EUR 1,05 million,

— SNCZ: EUR 4,2 million,

— Trident: EUR 3,3 million,

— Waardals: EUR 4,2 million.

(320)

2.3.2.3. Aggravating circumstances

Role of leader in, or instigator of, the infringement

Exclusively passive, or ‘follow my leader' role in
the infringement

James Brown submits that it was ‘in the position of a
very minor producer approached and pressurised to join
the trade association' and that the Commission should
bear in mind ‘the obvious repercussion if [it] had not
done so' (190). However, James Brown has not provided
the Commission with any evidence to show that it was
subject to any pressure or coercion by the other cartel
participants.

(314) The Commission is in possession of elements indicating
this Decision took

the addressees of

that certain of
initiatives to launch the cartel.

(315) As mentioned in recital 79, it appears that as early as
1980, Pasminco Europe-ISC Alloys, the predecessor of
Britannia, suggested setting up anti-competitive price
arrangements in the zinc phosphate market. It seems
also,
that Pasminco
seen in recital 84,
Europe-ISC Alloys was the initiator of the first meeting
in October 1993, whose aim was to end the price war
and bring some order in the market.

as was

(316) On the other hand, in a written report of a meeting at
the end of 1991, an employee of Waardals, confesses
that he said to the chairman of SNZ ‘that a voluntary
reduction in produced quantities was in [his] opinion,
the only way to obtain stability in the market — and
thus better prices' (187).

(321) The Commission likewise has no reason to consider that
James Brown played a passive or ‘follow my leader' role
James Brown participated in the
in the infringement.
vast majority of
the cartel meetings that have been
identified and took part directly and actively in the
infringement.

(322) For

in an attempt

to broker better

example, on 9 January 1995,

James Brown
organised a meeting in Manchester with Britannia and
relations
Waardals,
between the two firms, which were often in conflict in
the cartel meetings. As already described in recital 118,
the representative of
James Brown tried to persuade
Waardals to stop targeting customers in the United
Kingdom with low prices, whilst Britannia would
restrict its activities in Scandinavia. This has not been
contested by James Brown.

(317) The same document reports that the Chairman of SNCZ
would then have indicated that he would ‘take initiative
for a meeting with the other producers' (188).

(323) The Commission therefore concludes that James Brown
is not in a position of benefit from a reduction in fine
in respect of its allegedly purely passive of ‘follow my
leader' role in the cartel.

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Non-implementation in practice of the offending
agreements

(324) As already mentioned in recitals 290 to 298, Britannia,
Heubach, SNCZ, Trident and Waardals claim that they
the cartel agreements,
did not
in
particular with respect
to the minimum prices set,
which were allegedly rarely complied with.

fully implement

(325) SNCZ claims that it kept some ‘margin of manoeuvre'
throughout
it purposely
the cartel and declares that
underestimated, by 15 % approximately, the sales figures
that were reported to the trade associations (191).

(326) Trident declares for its part that from the start of its
the
activity on 15 March 1997 (after completion of
management buy-out),
it developed a new strategy of
increasing sales and was not restrained any more by the
cartel agreements.

(327) As discussed above, even if on the hypothesis that the
parties to the cartel did not always charge the minimum
prices they had agreed, it cannot be considered by the
Commission as an attenuating circumstance.
is
inherent in a cartel that its participants do not fully
trust each other and, assuming for the sake of argument
that some companies sold under
the recommended
it simply illustrates a willingness to maximise
price,
individually the gain obtained from the unlawful
agreement.

It

(328) The fact that SNCZ reported ‘false' figures to the trade
association in charge of collecting sales data, or that
Trident did not
feel constrained any longer by the
agreement after March 1997 cannot be considered a
Instance
mitigating factor. As
underlined in its Cascades
‘an undertaking
which despite colluding with its competitors follows a
more or less independent policy on the market may
simply be trying to exploit
its own
benefit' (192).

the Court of First

the cartel

judgment,

for

(331) Britannia and Trident submit that they have adopted
this
an attenuating

law compliance programmes and that

taken into account

as

antitrust
should be
circumstance.

(332) The Commission welcomes the fact

that

the above
companies set up antitrust law compliance policies. It
cannot, however, as a prevention tool,
release the
Commission from its duty to punish the infringement of
the
and Trident
committed in the past.

competition rules

that Britannia

(333) Heubach submits

that zinc phosphate can damage
human health and the environment when not properly
handled, and that zinc phosphate producers have to
comply in this regard with numerous laws. It further
states that this leads to very frequent, legitimate contacts
between the competitors in the market, which would
have as a consequence that ‘the step towards unlawful
contacts is easily made' (193).

(334) The Commission must vigorously dismiss this argument.
The fact that the industry has a duty to comply with the
legislation regarding the handling of a given product
can in no way exonerate those companies operating in
the market from their obligation to comply strictly with
the existing rules on competition.

(335) Trident

that

says

finally

in the
infringement only from March 1997 until May 1998,
and therefore that its participation had an insignificant
impact on the cartel and on the market.

it participated

(336) The Commission must reject this argument. Firstly, over
the period in question, Trident was actively involved in
the cartel and participated in the cartel meetings as a
full member. Secondly, the duration of the infringement
is duly taken into account by the Commission in the
in any case be
calculation of any fine, and cannot
construed to constitute a mitigating circumstance.

Other attenuating circumstances

2.3.2.5. Specific economic context

(329) Trident submits that it has not made any significant
profit from its involvement in the cartel and that this
should constitute a mitigating circumstance.

(337) Heubach,

SNCZ and

the
Commission should taken into account, in determining
the fines to be imposed, the poor economic context in
which the infringement took place.

Trident

submit

that

(330) The Commission, however, does not consider that,

either non-benefit

in
general,
any
economic disadvantage suffered due to participation in a
cartel constitutes attenuating circumstances in the fixing
of a fine. The argument of Trident must therefore be
dismissed.

cartel or

from a

(338) Heubach submits that the zinc phosphate market is a
mature market
the
producers are currently confronted with cheap imports
from Asia, CEEC (194) and Australia. Heubach, Trident

in a critical situation, and that

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renders,

and SNCZ also say that the strong fluctuations of the
price of zinc metal, combined with the buying power of
multinational customers
the situation even
more critical, all the more so since calcium phosphate
tends increasingly to compete with zinc phosphate as a
substitutable product. Heubach and Trident conclude
that […]* and Heubach submits that the Commission
should take this into account as it did in Decision
98/247/ECSC (Alloy Surcharge) (195).

— James Brown: EUR 1,05 million,

— SNCZ: EUR 4,2 million,

— Trident: EUR 3,3 million,

— Waardals: EUR 4,2 million.

(339) The Commission accepts that in view of the maturity of
the market, of its strong dependence on the price of
zinc metal and of the buying power enjoyed by the
customers,
in which the
context
infringement took place was difficult.

economic

the

(345) However, since the final amounts calculated according
to the above method may not in any case exceed 10 %
of the worldwide turnover of the addressees (as laid
down by Article 15(2) of Regulation No 17), the fines
to not exceed the
will be set as follows,
permissible limit:

in order

(340) Nevertheless, the Commission takes the view that some
of those elements should not be overestimated. Firstly,
according to Waardals' declaration, imports from third
countries are still
limited, notably due to the cost of
freight, and the quality of the product is significantly
lower (196). Secondly, the fluctuations of the zinc metal
during the period of infringement do not necessarily
constitute a relevant argument as the strong increase in
the price of zinc metal occurred only in 1997, whereas
the cartel was in force from 1994 onwards.

(341) The argument relating to the bad economic context

must therefore be dismissed.

— Britannia: EUR 3,75 million (197),

— Heubach: EUR 4,2 million,

— James Brown: EUR 1,05 million,

— SNCZ: EUR 1,7 million,

— Trident: EUR 3,3 million,

— Waardals: EUR 700 000.

2.3.2.6. Specific characteristics of the undertakings in

question

2.3.2.7. Application of the Leniency Notice

(342) All the addressees of this Decision submit that they are
very small companies and that this should be taken into
account by the Commission when setting the fines.

(343) The Commission rejects this argument. The fact that the
addressees of
this Decision are small or medium
enterprises does not exempt them from their strict duty
to comply with the competition rules. Setting up a
cartel can under no circumstances be considered a
legitimate way to compensate for the difficulty of doing
business with customers enjoying strong purchasing
power.

Conclusion on the amounts of fines prior to any
application of the Commission notice on the
non-imposition or reduction of fines in cartel cases
(The Leniency Notice)

(344) The Commission accordingly sets the amounts of the
fines prior to any application of the Leniency Notice as
follows:

— Britannia: EUR 3,75 million,

— Heubach: EUR 4,2 million,

(346) Certain addressees of this Decision have cooperated with
the Commission, at different stages of the investigation
into the infringement for the purpose of receiving the
favourable treatment set out in the Leniency Notice. In
the
legitimate
order
undertakings concerned as to the non-imposition or
reduction of fines on the basis of their cooperation, the
Commission examines in the following section whether
the parties concerned satisfy the conditions set out in
the notice.

expectations of

to meet

the

Opportunity to file an application under the
Leniency Notice

(347) Britannia and James Brown submit that they were not
informed of the proceedings before they received the
Statement of Objections. In this regard, they claim that
they have not been put in a position to be able to file
an application under the leniency Notice.

(348) This argument must be dismissed. The fact that certain
addressees of this Decision were subject to on-the-spot
investigations or received requests for information from
the Commission did not confer on them any advantage,
not did that hinder Britannia's or James Brown's right of

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Inspections and request

for information are
defence.
investigatory steps which, as such, are not meant to be
any specific vehicle of the exercise by an undertaking of
its right of defence.

(349) Britannia also contends that

it could not have been
aware of
the people
the infringement because all
involved in the infringement at the time where Britannia
participated in the cartel were transferred to Trident as a
result of the management buy-out.

(350) This argument must equally be dismissed. As Britannia
in its reply to the Statement of
rightly points out
Objections, the objective of the Leniency Notice is to
encourage enterprises involved in cartel activities to
come forward and cooperate on a voluntary basis. The
argument according to which the undertaking was no
longer aware of the infringement cannot exempt it from
its responsibilities. Whilst it was active in the cartel,
Britannia had every opportunity to file an application
under the Leniency notice

Non-imposition of a fine or very substantial
reduction of its amount ( Section B)

(351) During the investigations carried out on 13 and 14 May
1998 pursuant to Article 14(2) of Regulation No 17, the
sufficient
the
Commission
information to established the evidence of
the zinc
phosphate cartel.

ESA collected

and

(352) None of the addressees of this Decision was therefore in
a position to fulfil condition (b) of Section B of the
Leniency Notice, which is therefore not applicable.

(357)

Substantial reduction of a fine (Section C)

(353) As mentioned above, the Commission collected decisive
evidence of the cartel's existence before any undertaking
filed an application under the Leniency Notice. None of
this Decision was therefore in a
the addressees of
the
position to fulfil condition (b) of Section B of
Leniency Notice. Section C of the Leniency Notice is
therefore not applicable.

Significant reduction of a fine (Section D)

Waardals

(354) Waardals approached the Commission on 17 July 1998,
and announced its intention to cooperate fully with the

September

1998, Waardals

Commission under the Leniency Notice. At a meeting
on 2
the
Commission with a detailed oral account of the cartel's
activities. The Commission sent to Waardals the draft
the content of which was
minutes of
a written declaration from
confirmed by
finally
Waardals on 3 December 1999.

the meeting,

provided

the cartel given by Waardals, which
(355) The account of
included,
inter alia, a list of the cartel meetings held
between 1994 and 1998, allowed the Commission to
form a clearer idea of the history and mechanisms of
in its
the cartel, and to interpret
possession in a more accurate way. The explanations
given by Waardals enabled the Commission to send to
the other cartel participants very detailed requests for
information.

the documents

(356) On the basis of the above, the Commission concludes
that Waardals fulfils the conditions as set out in Section
D(2), first indent, of the Leniency Notice and grants
Waardals a 50 % reduction of the fine that would have
been imposed if
it had not cooperated with the
Commission.

Trident

It was only after it had received the first request for
information from the Commission, dated 5 March 1999,
that Trident informed the Commission, by letter of 12
April 1999, of its intention to cooperate fully with the
investigation under the Leniency Notice. Trident then
provided the Commission with a written statement
giving a detailed account of the cartel, as well as a
number of documents relevant to the case.

(358) The Commission accepts that

enabled

submitted

the statement and the
the
Trident
by
documents
Commission to cross-check the information in its
possession and to get a clearer picture of some factual
aspects of the cartel. The Commission notes, however,
that Trident approached the Commission only after it
had received a request for information under Article 11
of Regulation No 17, sent on 5 March 1999. This
forward to the Commission
reluctance
spontaneously and before any further
investigatory
measure was taken will be taken into account. The
Commission also takes note that at least one of the
documents
Leniency Notice
under
corresponded in fact to the type of information that
Trident was requested to supply to the Commission in
for information of 5 March
response to the request
1999, pursuant to Regulation No 17 (198).

to come

provided

the

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(359) On the basis of the above, the Commission concludes
that Trident fulfils the conditions as set out in Section
D(2), first indent, of the Leniency Notice and grants
Trident a 40 % reduction of the fine that would have
been imposed if
it had not cooperated with the
Commission.

Conclusion of the application of the Leniency
Notice

(366)

In conclusion, with regard to the nature of
their
cooperation and in the light of the conditions set out in
the Leniency Notice, the Commission will grant to the
addressees of this Decision the following reductions of
their respective fines:

Britannia, Heubach, SNCZ

(360) Britannia, Heubach and SNCZ stated in their written
replies to the Statement of Objections that they do not
substantially contest the facts as set out in the latter.

(361) Britannia submits that ‘Trident has cooperated with the
Commission in respect of
the business operated by
[Britannia] and then by Trident as a whole, and [that
Britannia] should benefit
from this cooperation and
receive at least the same amount of reduction in any
fine as is granted to Trident' (199). For its part Trident
puts forward the same argument and states that any
reduction in fine arising from its cooperation should
also extend to benefit Britannia because Trident's
cooperation also related to Britannia's period of
operation in the zinc phosphate market (200).

— Waardals: a reduction of 50 %,

— Trident: a reduction of 40 %,

— Britannia: a reduction of 10 %,

— Heubach: a reduction of 10 %,

— James Brown: a reduction of 10 %,

— SNCZ: a reduction of 10 %.

2.3.2.8. Ability to pay

(367)

[…]* (201).

(368)

[…]*.

(369)

[…]*.

(362) The Commission must dismiss this argument. The fact
that Trident submitted to the Commission information
regarding Britannia's involvement in the cartel does not
create any entitlement on the part of Britannia to
benefit from the same reduction in fine as Trident. As
already mentioned, Britannia had the opportunity the
file an application under the Leniency Notice at any
time and did not do so.

2.3.2.9. The final amounts of the fines imposed in the

present proceedings:

(370)

the fines to be imposed, pursuant

In conclusion,
to
Article 15(2)(a) of Regulation No 17, are to be as
follows:

(363) Britannia, Heubach and SNCZ will

therefore receive,
pursuant to Section D(2), second indent of the Leniency
Notice, a reduction of their fine of 10 %.

James Brown

(364)

It is quite unclear from the correspondence received
from James Brown whether or not it contests the facts
as set out in the Statement of Objections. Nevertheless,
the Commission concludes from a careful reading of
such correspondence that
the responses from James
Brown imply that this company does not, as a matter of
fact, contest the facts as set out in the Statement of
Objections.

— Britannia Alloys & Chemicals Limited:

EUR 3,37 million,

— Dr Hans Heubach GmbH & Co. KG:

EUR 3,78 million,

— James M. Brown Limited: EUR 940 000 EUR,

— Société Nouvelle des Couleurs Zinciques SA: EUR

1,53 million,

— Trident Alloys Limited: EUR 1,98 million,

— Waardals Kjemiske Fabrikker A/S: EUR 350 000

EUR.

HAS ADOPTED THIS DECISION:

Article 1

(365)

James Brown will therefore receive, pursuant to Section
D(2), second indent of the Leniency Notice, a reduction
of its fine of 10 %.

Britannia Alloys & Chemicals Limited, Dr Hans Heubach
GmbH & Co. KG, James M. Brown Ltd, Société Nouvelle des

20.6.2003

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L 153/35

Couleurs Zinciques SA, Trident Alloys Ltd. and Waardals
Kjemiske Fabrikker A/S have infringed the provisions of Article
81(1) of the Treaty and Article 53(1) of the EEA Agreement by
participating
concerted
practice in the zinc phosphate sector.

in continuing

agreement

and/or

that period,

interest shall automatically be
After expiry of
payable at the interest rate applied by the European Central
Bank to its main refinancing operations on the first day of the
month in which this Decision is adopted, plus 3,50 percentage
points, namely 6,77 %.

The duration of the infringement was as follows:

(a)

in the case of Dr Hans Heubach GmbH & Co. KG, James
M. Brown Limited,
des Couleurs
Zinciques SA and Waardals Kjemiske Fabrikker A/S: from
24 March 1994 until 13 May 1998;

Société Nouvelle

(b)

in the case of Britannia Alloys & Chemicals Limited: from
24 March 1994 until 15 March 1997;

(c)

in the case of Trident Alloys Limited: from 15 March 1997
until 13 May 1998.

Article 2

The undertakings referred to 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.

They shall refrain from repeating any act or conduct referred
to in Article 1, and from adopting any measure having
equivalent object or effect.

Article 3

Article 5

This Decision is addressed to:

(a) Britannia Alloys & Chemicals Limited

Botany Road
Northfleet
Gravesend,
Kent DA11 9BG
United Kingdom;

(b) Dr Hans Heubach GmbH & Co. KG

Heubachstraße 7
D-38685 Langelsheim
Germany;

(c)

James M. Brown Limited
Napier Street
Fenton
Stoke-on-Trent
Staffordshire ST4 4NX
United Kingdom;

For the infringement referred to in Article 1, the following
fines are imposed:

(a) Britannia Alloys and Chemicals Limited: EUR 3,37 million,

(d) Société Nouvelle des Couleurs Zinciques SA

F-59111 Bouchain
France;

(b) Dr Hans Heubach GmbH & Co. KG: EUR 3,78 million,

(c)

James M. Brown Limited: EUR 940 000,

(d) Société Nouvelle des Couleurs Zinciques SA:

EUR 1,53 million,

(e) Trident Alloys Limited: EUR 1,98 million,

(f) Waardals Kjemiske Fabrikker A/S: EUR 350 000.

Article 4

The fines imposed in Article 3 shall be paid, within three
months of the date of notification of this Decision, to the
following bank account:

Account No 642-0029000-95
European Commission
Banco Bilbao Vizcaya Argentaria (BBVA)
SWIFT code: BBVABEBB —
IBAN code: BE 76 6420 0290 0095
Avenue des Arts/Kunstlaan, 43
B-1040 Brussels

(e) Trident Alloys Limited

Alloys House
Willenhall Lane
Bloxwich
Walsall
West Midlands WS3 2XW
United Kingdom;

(f) Waardals Kjemiske Fabrikker A/S

Strandgaten 223
N-5004 Bergen
Norway.

This Decision shall be enforceable pursuant to Article 256 of
the Treaty.

Done at Brussels, 11 December 2001.

For the Commission

Mario MONTI

Member of the Commission

L 153/36

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Official Journal of the European Union

20.6.2003

Notes

(*) The square brackets marked with an asterisk denote confidential

information which has been deleted from the text.

(1) OJ L 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) OJ C 144, 20.6.2003.
(5) Dun & Bradstreet Comprehensive Report on the company.
(6) See letter from Trident of 3.8.1999 (5769).
(7) This product is quoted daily on the London Metal Exchange (LME).
(8) To 31.3.2000 (exchange rate calculated on the average monthly

exchange rate from April 1999 until March 2000).

(9) For instance in 1992, Colores Hispanias (Spain) and ICS (Italy) were
reported to have sold a few hundred tonnes in their respective
domestic markets. Inspection13.5.1998 (SNCZ), document CRO22A
(1801 and 1802).

(10) CEFIC, created in 1972, presents its mission as follows: ‘to provide
forum for structured discussion of supra-national issues affecting
chemical companies operating in Europe and represent
the
industry's position on such issues'. ZIPHO meeting
chemical
12.12.1995,
JR1 [1062].
insp. 13.5.1998 (Waardals), document
CEFIC sector groups are specialised, product-oriented forums. As
presented by CEFIC, the mission of ZOPA is to ‘represent, promote
and defend the zinc oxide and zinc dust industries at national and
international
the
opportunity to give its opinion and input to the competent bodies
on all regulatory matters pertaining to health, safety, environment
and trade issues concerning zinc oxide and zind dust'.
(11) Respectively on 12.12.1995, 13.2.1996 and 11.3.1996.
(12) Draft statutes of EMZP, enclosed with VdMI's letter of 6.7.1998 to
Trident: document 13, Annex IB to Trident reply of 15.4.1999 to
the request for information of 5.3.1999 (2981 to 2992).

and to ensure

industry has

levels,

that

(13) E.g, inter alia: zinc chromates, polyphosphates, borates, silicates.
(14) See Trident statement of 23.4.1999 (4977).
(15) i.e. their chemical formula is modified in order to improve some

properties of the product.

(16) See for instance: Trident statement of 23.4.1999 (4976); Waardals
reply of 22.10.1999 to the request for information of 8.10.1999
(5892); documents on prices
collected at SNCZ,
inter alia
document collected at
the inspection of 13.5.1998 (Inspection
13.5.1998 document) CRO13 A (1706) and CRO19A (1745 and
1746); Heubach reply of 29.10.1999 to the request for information
of 8.10.1999 (5928).

(17) Estimates calculated from the figures supplied by Heubach, James

Brown, SNCZ, Trident Alloys and Waardals.

(18) All tonnage figures hereafter are given in metric tonnes.
(19) As will be seen below, 1998 is considered to be the last year of the
infringement subject to the present Decision, with the exception of
the case of Britannia, which ceased the infringement in March
1997. As far as Britannia is concerned, 1996 is the last year for
which figures are available on an full annual basis.

(20) Replies to the requests for information of 12 October 2001:
(7994), (8019 and 8020), (8029 and 8030), (8128), (8211), (8229
to 8232).

(21) To 30.6.1996 (exchange rate calculated from the average monthly

exchange rates from July 1995 until June 1996).

(22) Including anti-corrosion and decorative paint.
(23) European Chemical News, 5 to 11 April 99 issue, p. 22. (Statistical
source: European Council of Printing Ink and Artist's Colour
Industry).

(24) OJ C 207, 18.7.1996, p. 4.
(25) Trident statement of 23.4.1999 (4984).
(26) Trident statement of 23.4.1999 (4983). Waardals oral statement of
2.9.1998 (see minutes of meeting, points 63 and 67 (5993)).

(27) Trident reply of 15.4.1999 to the request

for information of
5.3.1999 (2870 to 2872); Heubach reply of 13.4.1999 to the
request for information of 5.3.1999 (2765 to 2767); James Brown

reply of 26.3.1999 to the request for information of 5.3.1999
(2703); SNCZ reply of 19.4.1999 to the request for information of
5.3.1999 (5036 to 5037); Waardals statement of 30.10.1998
(2620).

(28) Waardals oral statement of 2.9.1998: see minutes of meeting,

point 67 (5993).

(29) Inspection 13.5.1998 (Waardals): in 1996 the biggest deviation was
0,5 % (document BB2f (45)); in 1997 James Brown undersold by
1,3 % (document BB2e (44)).

(30) Waardals oral statement of 2.9.1998: see minutes of meeting,

point 39 to 42 (5989).

(31) Trident statement of 23.4.1999 (4978).
(32) Trident statement of 23.4.1999 (4979).
(33) Inspection 13.5.1998 (Waardals), document BB49 (762 and 763)

(translated from Norwegian).

(34) Inspection 13.5.1998 (Waardals), document W7 (1395 to 1397)

and BB49 (738 to 740) (translated from Norwegian).

(35) Trident statement of 23.4.1999 (4979).
(36) Waardals oral statement of 2.9.1998: see minutes of meeting,

point 44 (5990).

(37) The Commission has collected evidence, as is shown below, that

detailed sales figures were also exchanged at these occasion.

(38) Trident statement of 23.4.1999 (4985).
(39) Trident statement of 23.4.1999 (4982). Waardals oral statement of

2.9.1998: see minutes of meeting, point 55 (5991).

(40) Trident statement of 23.4.1999 (4984).
(41) Waardals oral statement of 2.9.1998: see minutes of meeting,

points 73 and 74 (5994 and 5995).

(42) Waardals oral statement of 2.9.1998: see minutes of meetings,

point 74 (5995).

(43) Trident statement of 23.4.1999 (4983).
(44) Waardals' reply to the Statement of Objections (7878).
(45) Waardals oral statement of 2.9.1998: see minutes of meeting,
reply to the Statement of

point 69 (5994), and Waardals'
Objections (7878).

(46) Trident statement of 23.4.1999 (4983).
(47) See above footnote 26.
(48) Waardals oral statement of 2.9.1998: see minutes of meeting,

points 50 and 51 (5991).

(49) See for instance Inspection 13.5.1998 (Waardals), document BB2a

(38 and 39), BB13 (592), BB2f (45) and BB32 (677).

(50) Waardals oral statement of 2.9.1998: see minutes of meeting,

point 51 (5991).

(51) Inspection 13.5.1998 (Waardals), document BB 49 (751 and 752)
R.W. are the initials of the Purchase Director of International Paint
(translated from Norwegian).

(52) Trident reply of 15.4.1999 to the request

for information of

5.3.1999, Annex 6, Part I-B, No 152 (4131 and 4132).

(53) SNCZ reply of 19.4.1999 to the request
5.3.1999, Annex to Question 8 (5304).

for

information of

(54) Inspection 13.5.1998 (Waardals), document BB 50 (842).
(55) Inspection 13.5.1998 (Waardals), document BB 50 (857). Also

SNCZ reply of 19.4.1999, annex to Question 8 (5293).
(56) Inspection 13.5.1998 (Waardals), document BB 50 (785).
(57) See footnote 26.
(58) Trident statement of 23.4.1999 (4981).
(59) Trident statement of 23.4.1999 (4982).
(60) See footnote 26.
(61) Waardals reply to the Statement of Objections (7880).
(62) Inspection 13.5.1998 (Waardals), document BB31 (670).

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Official Journal of the European Union

L 153/37

(63) Trident reply of 15.4.1999 to the request

for information of
5.3.1999 (2870 to 2872), Heubach reply of 13.4.1999 to the
request for information of 5.3.1999 (2775 to 2777) and Waardals
letter of 30.10.1998 (2620).

(64) James Brown reply of 26.3.1999 to the request for information of

5.3.1999 (2703).

(65) Inspection 13.5.1998 (SNCZ), document CRO6B (1833).
(66) Inspection 13.5.1998 (Waardals), document BB50 (874).
(67) Idem.
(68) Inspection 13.5.1998 (Waardals), document BB31 (670): Waardals

employee's diary on 27.3.1995.

(69) Idem: ‘1 to 5 not communicated' (translated from Norwegian).
(70) Waardals oral statement of 2.9.1998: see minutes of meeting,

point 63 (5993).

(71) […]*.
(72) Translated from Norwegian.
(73) Inspection 13.5.1998 (Waardals), document BB50 (786):

fax of

24.4.1995.

(74) SNCZ reply of 19.4.1999 to the request

for

information of

5.3.1999, Annexes to question 8, monthly meclarations (5282).

(75) SNCZ reply of 19.4.1999 to the request

for

information of

5.3.1999, Annexes to question 8, monthly declarations (5279).

(76) SNCZ reply of 19.4.1999 to the request

information of
5.3.1999, Annexes to question 8, monthly declarations (5258 to
5276).

for

(88) Inspection 13.5.1998 (Waardals), document BB32 (676 and 677).

(89) SNCZ reply of 19.4.1999, Annexes to question 8 (5270 to 5276);
Trident reply of 15.4.1999, Annex 6, file 3, part 3, document 5
and 6 (4464 to 4476).

(90) Words in square brackets translated from Norwegian.

(91) Trident statement of 23.4.1999 (4986). Letters from CEFIC: of
27.2.1996, Inspection 13.5.1998 (Waardals), document BB7 (567);
of 2.7.1996,
Inspection 13.5.1998 (Waardals), document BB7
(547); of 5.12.1996, Inspection 13.5.1998 (Waardals), document
BB7 (535). Fax of 9.7.1996 from Heubach to CEFIC: SNCZ reply of
19.4.1999 to the request for information of 5.3.1999, Annexes to
question 2 (5393); Trident reply of 15.4.1999 to the request for
information of 5.3.1999, Annex 6,
file 2, document No 166
(4172).

(92) Inspection 13.5.1998 (Waardals), document DBW6 (985) and

DBW7 (986).

(93) Inspection 13.5.1998 (Waardals), document BB43 (702).

(94) See footnote 26. Travel expenses: the representative of Heubach
inspection 13.5.1998 (Heubach),

was in London on 4.2.1997:
document EF17 (2526).

(95) Inspection 13.5.1998 (Waardals), document BB2f (45).

(96) SNCZ reply of 19.4.1999 to the request

information of
5.3.1999, Annexes to question 8 (5258 to 5269); Trident reply of
15.4.1999 to the request for information of 5.3.1999, Annex 6,
file 3, part 3, document 12 (4511 to 4523).

for

(77) Trident reply of 15.4.1999 to the request

for information of

(97) Words in square brackets translated from Norwegian.

5.3.1999 (2870).

(78) Waardals oral statement of 2.9.1998: see minutes of meeting point
66 (5993). Inspection 13.5.1998 (Waardals), document BB31 (671)
(translated from Norwegian.), document RA3 (918) and document
RA4 (929).

(79) Waardals's reply to the Statement of Objections (7881).
(80) Inspection 13.5.1998 (Waardals), document BB7 (518).
(81) Waardals's reply to the Statement of Objections, (7881).
(82) See above footnote 26. A representative of Waardals was in
London Heathrow, Novotel.
Inspection 13.5.1998 (Waardals),
document RA3 (915) (travel expenses mentioning: Hotel Novotel
Heathrow ). His diary on 15.9.1995 indicates ‘Meeting Novotel'.
Inspection 13.5.1998 (Waardals), document BB31 (672).

(83) Waardals employees' travel expenses forms indicate that they were
in Hotel Mercure on 21 to 22 January.
Inspection 13.5.1998
(Waardals), document RA3 (919-920). The travel expenses form
regarding a representative of Heubach indicate that the latter was
in Paris on 22 January, Inspection 13.5.1998 (Heubach), document
EF18 (2538).

(84) The diary of the representative of Waardals indicates on 20.5.1996
‘Departure for London Heathrow Hotel' and on 21.5.1996:
‘Meeting London'.
Inspection 13.5.1998 (Waardals), document
BB30 (661). On day 10.9.1996, The diary of the representative of
Heubach indicates
Inspection 13.5.1998 (Heubach),
document EF6 (2239). Also the travel expenses form confirms that
Inspection 13.5.1998 (Heubach),
this person was in London.
document EF18 (2544).

‘London!':

(85) The diary of a representative of Waardals indicates on 9.9.1996
‘Departure for London, Novotel' and on 10.9.1996:
‘London
Meeting'. Inspection 13.5.1998 (Waardals), document BB30 (662).
The travel expenses forms of the two representatives of Waardals
indicate that they were in Hotel Novotel, United Kingdom on 9 to
10.9.1996; document RA4 (927 and 928) The diary of
the
representative of Heubach reads on 10.9.1996:
‘London!'. Also,
travel expenses
form indicates his presence in London on
10.9.1996. Inspection 13.5.1998 (Heubach), document EF6 (2239)
and document EF18 (2550).

(86) See footnote 26.
(87) See Trident statement of 23.4.1999 (4981 to 4987) and Waardals
oral statement of 2.9.1998: see minutes of meeting, points 73 to
76 (5994 and 5995).

(98) Inspection 13.5.1998 (Trident), document FWP11 (1520).

(99) Inspection 13.5.1998 (Waardals), document BB2f (45).

(100) Inspection 13.5.1998 (Waardals), document BB2c (42).

(101) Words in square brackets translated from Norwegian.

(102) Inspection 13.5.1998 (Waardals), document BB7 (532).

(103) Waardals oral statement of 2.9.1998: see minutes of meeting,

point 78 (5995).

(104) Inspection 13.5.1998 (Waardals), document JR1 (1033).

(105) Trident reply of 15.4.1999 to the request

for information of

5.3.1999, Annex 6, file 2, document No 172 (4182).

(106) Inspection 13.5.1998 (Waardals), document BB9 (585).

(107) See the standard form used by VdMI for the collection of sales

data.

(108) Inspection 13.5.1998 (Waardals), document BB9 (588).

(109) Inspection 13.5.1998 (SNCZ), document FPFA2 (1838) and

document FPFC5 (2068).

(110) See footnote 26.

(111) A reimbursement claim mentions:

(name of an employee of Heubach).

‘5 representasjon: Alloys; 5
representasjon:
Inspection
13.5.1998 (Waardals), document BB2h (49), document DBW1
(942 and 943); document DBW2 (954), document DBW4 (971).
The travel expenses forms of the two representatives of Heubach
for April 1997 indicate' Paris » on 22.4.1997 (departure 5.30 am,
return same day).
Inspection 13.5.1998 (Heubach), document
EF17 (2532) and document EF18 (2554).

(112) Inspection 13.5.1998 (Waardals), document BB2h (50). Same

information also in document BB2a (38).

(113) SNCZ reply of 19.4.1999 to the request

information of
5.3.1999, Annexes to question 9 (5943). Heubach reply of
13.4.1999 to the request for information of 5.3.1999, Annex 11
(2858). Trident reply of 15.4.1999 to the request for information
of 5.3.1999, annex 7 part B, document 2 (4619).

for

(114) Inspection 13.5.1998 (SNCZ), document CRO 1A (1629).

(115) Waardals says the Hotel name was ‘Scandinavia', whereas Trident

says it was ‘Scandic'.

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(116) See footnote 26. Travel expense forms: a representative of
Inspection
Waardals was in Copenhagen on 16 to 20.7.1997:
13.5.1998 (Waardals), document DBW1 (946). The representative
of Trident was in Denmark on 16-17 July 1997:
Inspection
13.5.1998 (Trident), document FWP3 (1480 to 1484). The
representative of Heubach was in Copenhagen on 17.7.1997:
Inspection 13.5.1998 (Heubach), document EF18 (2565). A
representative of SNCZ was
in Copenhagen on 17.7.1997:
Inspection 13.5.1998 (SNCZ), document FPFC7 (2070 to 2073).
Inspection 13.5.1998 (Trident), document
Apparently (diary:
FWP5 (1489))
there was a CEFIC meeting on 17.7.1997 in
Copenhagen, Hotel Dan Kastrup.
original
(Waardals), document BB29 (654).

(117) Translated,

in Norwegian.

Inspection

13.5.1998

(118) Inspection 13.5.1998 (Waardals), document BB2a (38 and 39). An
employee of Waardals stated at
the investigation that he had
written these notes at around the end of July 1997, after having
received the ‘statistics'.

(119) Heubach reply of 13.4.1999 to the request for information of
5.3.1999, Annex 11 (2858 and 2859). Trident reply of 15.4.1999
to the request for information of 5.3.1999, Annex 7, part B,
document 2 (4619 and 4620). SNCZ reply of 19.4.1999 to the
request for information of 5.3.1999, Annexes to question 9 (5492
and 5493).

(120) Words in square brackets translated from Norwegian.
(121) Inspection 13.5.1998 (Trident), document FWP11 (1514).
(122) See footnote 26. Travel expense form: a representative of
Waardals was in Hamburg, Hotel Reichshof on 15 to 19.10.1997:
Inspection 13.5.1998 (Waardals), document DBW1 (947-bis).

(123) Inspection 13.5.1998 (Waardals), document BB51 (875).
(124) Inspection 13.5.1998 (Waardals), document BB10 (589).
(125) Inspection 13.5.1998 (Trident), document FWP8 (1500 and 1501);
Heubach reply of 13.4.1999 to the request for information of
5.3.1999, Annex 11 (2860). SNCZ reply of 19.4.1999 to the
request
for information of 5.3.1999, Annexes to question 9
(5491).

(126) Words in square brackets translated from Norwegian.
(127) Inspection 13.5.1998 (Trident), document FWP12 (1526).
(128) See footnote 26. Travel documents: a representative of Waardals
was in London on 18.1.1998 and 19.1.1998: inspection 13.5.1998
(Waardals), document MH2 (889). Also document JR25 (1289)
and JR26 (1290). Also another representative of Waardals was in
London on 18.1.1998: inspection 13.5.1998 (Waardals), document
DBW4 (974). A representative if Trident was in London on
19.1.1998:
inspection 13.5.1998 (Trident), document FWP12
(1521). A representative of Heubach was on the same date on a
one-day mission starting at 7.00 and ending at 22.30: inspection
13.5.1998 (Heubach), document EF18 (2577).

(129) Translated,

original
(Waardals), document BB29 (655).
original

(130) Translated,

in Norwegian.

in Norwegian.

Inspection

13.5.1998

Inspection

13.5.1998

(Waardals), document BB12 (591), document JR27 (1291).

(131) Inspection 13.5.1998 (Waardals), document BB51 (875).
(132) Inspection 13.5.1998 (SNCZ), document CRO1B (1817).
(133) Inspection 13.5.1998 (Heubach), document EF4 (2223).
(134) Inspection 13.5.1998 (Heubach), document EF5 (2227).
(135) Inspection 13.5.1998 (Waardals), document BB2e (44).
(136) Heubach reply of 13.4.1999 to the request for information of
5.3.1999, Annex 11 (2861). Trident reply of 15.4.1999 to the
request for information of 5.3.1999, Annex 7, part B, document 2
(4622). SNCZ reply of 19.4.1999 to the request for information
of 5.3.1999, Annexes to question 9 (5490).

(137) Words in square brackets translated from Norwegian.
(138) Inspection 13.5.1998 (Waardals), document BB2d (43). An
employee of Waardals stated at the investigation that he had
written this document in the beginning of January 1998.

(139) Words in brackets translated from Norwegian.
(140) See recitals 112 to 115.
(141) Inspection 13.5.1998 (Waardals), document BB13 (592).

(142) Words in square brackets translated from Norwegian.
(143) Inspection 13.5.1998 (Trident) document FWP11 (1507).
(144) Inspection 13.5.1998 (Waardals), document BB2e (44).
(145) Words in brackets translated from Norwegian.
(146) See footnote 26. Travel expense forms: a representative of
Waardals was in Denmark, France and the Netherlands between
17.4.1998 and 21.4.1998,
invoice from Hotel Novotel dated
20.4.1998, flight ticket and hotel invoice proves that he arrived
in Paris CDG on 19.4.1998 and left on 20.4.1998. Inspection
13.5.1998 (Waardals), document MH3 (890 to 894). A
representative of Heubach was on 20.4.1998 on a one
day-mission starting at 5.30 am and ending at 22.30: Inspection
13.5.1998 (Heubach), document EF18 (2580). A representative
Trident was in France and Holland between 19 and 22.4.1998:
Inspection 13.5.1998 (Trident), document FWP2 (1474 to 1479).

(147) Inspection 13.5.1998 (Waardals), document BB51 (875).
(148) Inspection 13.5.1998 (Heubach), document EF4 (2225).
(149) Inspection 13.5.1998 (Heubach), document IK2 (2163).
(150) Inspection 13.5.1998 (Waardals), document BB2b (410).
(151) Trident reply of 15.4.1999 to the request

for information of
5.3.1999, Annex 7, part B, document 7 (4643). SNCZ reply of
19.4.1999 to the request for information of 5.3.1999, Annexes to
question 9 (5489).

(152) Words in brackets translated from Norwegian.
(153) Inspection 13.5.1998 (Trident), document FWP11 (1504).
(154) Inspection 13.5.1998 (Waardals), document

JR42 (1325) and
document BB 46 (718) (identical). This document is a reservation
for a meeting room in Hilton Schiphol on 22.7.1998, for 10
persons. Reserved under the name of Waardals.

(155) Waardals oral statement of 2.9.1998: see minutes of meeting,

point 80 (5995).

(156) See forms sent to CEFIC for the collection of sales data.
(157) See Final Act of the Agreement on the European Economic Area,

OJ L 1, 3.1.1994, p. 3.

(158) Pursuant to Article 56(1)(b) of the EEA Agreement, and without
prejudice to the competence of the EC Commission where trade
between EC Member States is affected, the ESA is also competent
on cases where the turnover of the undertakings concerned in the
their
territory of
turnover in the territory of the EEA.

the EFTA States equals 33 % or more of

(159) See below under ‘Effect on trade Member States and between EEA

contracting Parties'.

the Court of

(160) The case-law of

Justice and the Court of First
Instance in relation to the interpretation of Article 81 of the
Treaty applies equally to Article 53 of the EEA Agreement.
(161) Joined Cases T-305/94 etc. Limburgse Vinyl Maatschappij NV and
others v Commission, 20.4. 1999 (1999) ECR II-9831, at paragraph
715.

(162) Case 48/69, Imperial Chemical Industries v Commission (1972) ECR

619.

(163) Joined Cases 40 to 48/73, etc. Suiker Unie and others v Commission

(1975) ECR 1663.

(164) See judgment in Case C-49/92 P Commission v Anic Partecipazioni

SpA (1999) ECR I-4125.

(165) Judgment in case C-199/92 P Hüls AC v Commission, (1999) ECR

I-4287, paragraphs 158 to 166.

(166) See judgment in Case T-7/89 Hercules v Commission, (1991) ECR

II-1711, paragraph 264.

(167) Case T-141/89 Tréfileurope v Commission,

(1995) ECR II-791,
paragraph 85. See also,
inter alia, case T-334/94 Sarrió v
Commission, ECR II-1439, paragraph 118. Judgment upheld by the
ECJ
in Case C-291/98 P Sarrió v Commission of 16.11.2000,
(2000) ECR I-9991, at paragraph 50.

(168) The majority of which is exported in countries of the EEA.
(169) See for instance reply of Waardals of 22.10.99 to the request for

information of 8.10.99 (5892 to 5897).

(170) Waardals's reply to the Statement of Objections (7881).
(171) Waardals' reply to the Statement of Objections (7881).

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L 153/39

(172) Waardals's reply to the Statement of Objections (7881).
(173) Case 48/69 Imperial Chemical

Industries

(1972) ECR 619,

(185) Trident Statement of 23.4.1999, p. 19 (4984).
(186) SNCZ's reply to the Statement of Objections (7630). Translated

paragraphs 132 and 133.

from French.

(174) Case T-80/89 BASF and others v Commission (polypropylene),
(1995) ECR II 729. Judgment upheld by the ECJ in case C-49/92 P
Commission v Anic Partecipazioni SpA, ECR I-4125. See also case
T-327/94 SCA Holding v Commission of 14.5.1998 (1998) ECR
II-1373. Judgment upheld by the ECJ in Case C-297/98 P SCA
Holding v Commission of 16.11.2000 (not yet reported).

(175) Commission Decision PVC case of 21 December 1988 in Case

IV.31.865, OJ L 74, 17.3.1989, p. 1 at paragraph 43.
(176) Trident's reply to the Statement of Objections (6814).
(177) OJ L 13, 21.2.1962, p. 204. Under Article 5 of Council
Regulation (EC) No 2894/94 concerning arrangements of
implementing the Agreement on the European Economic Area,
‘the Community rules giving effect to the principles set out in
Articles 85 and 86 (now Articles 81 and 82) of the EC Treaty
[…] shall apply mutatis mutandis' (OJ L 305, 30.11.1994 p. 6).

(178) Idem.
(179) OJ C 207, 18.7.1996, p. 4.
(180) See Joined Cases T-305/94 etc LVM v Commission, (1999) ECR
II-931, at paragraphs 1111 and 1112; Case T-143/89, Ferriere Nord
v Commission, (1995) ECR II-917, paragraph 41; Case 19/77, Miller,
(1978) ECR 131, paragraphs 17 and 18; Case 246/86, Belasco
(1989) ECR 2117, paragraph 41.

(181) Britannia's reply to the Statement of Objections (7033).
(182) Trident's reply to the Statement of Objections (6083).
(183) Trident's reply to the Statement of Objections (6084).
(184) Waardals oral statement of 2.9.1998: see minutes of meeting,

paragraph 51 (5991).

(187) Inspection 13.5.98, Waardals, document BB49 (762 and 763).
(188) Idem.
(189) Waardals oral statement of 2.9.1998: see minutes of meeting,

point 44 (5990).

(190) Letter of James Brown of 22 November 2000 (6794).
(191) SNCZ's reply to the Statement of Objections (7627). Translated

from French.

(192) Case T-308/94 Cascades SA v Commission (1998) ECR II-925, at

paragraph 230.

(193) Heubach's reply to the Statement of Objections (7686). Translated

from German.

(194) Central east European Countries.
(195) OJ L 100, 1.4.98, p. 55.
(196) Waardals oral statement of 2.9.1998: see minutes of meeting,

point 33 (5988).

(197) For the purpose of calculating the upper limit applicable to the
fine of Britannia, the Commission took into account its global
tunover for the business year ending 30 June 1996, which is the
last available figure reflecting an entire year of normal economic
activity.
(198) (5011).
(199) Britannia's reply to the Statement of Objections (7045 to 7047).
(200) Erwiderung von Trident auf die Mitteilung der Beschwerdepunkte

(6816).

(201) […]*.