2003/207/EC: Commission Decision of 24 July 2002 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/E-3/36.700 — Industrial and medical gases) (notified under document number C(2002) 2782)
Date: 2002-07-24
Institutions: European Commission
Subjects: Netherlands, fine, gas, infringement procedure (EU), price agreement

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 24 July 2002

relating to a proceeding pursuant to Article 81 of the EC Treaty

(Case COMP/E-3/36.700 (cid:151) Industrial and medical gases)

(notified under document number C(2002) 2782)

(Only the English and Dutch texts are authentic)

(2003/207/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

PART I (cid:151) FACTS

Having regard to the Treaty establishing the European
Community,

A. SUMMARY OF THE INFRINGEMENT

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

by Regulation

amended

last

as

1. INTRODUCTION

(1)

This decision concerns the following undertakings:

Having regard to the Commission Decision of 9 July 2001 to
open a proceeding in this case,

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

(cid:151) AGA AB,

(cid:151) Air Liquide BV,

(cid:151) Air Products Nederland BV,

(cid:151) BOC Group Plc.,

(cid:151) Messer Nederland BV,

(cid:151) NV Hoek Loos,

Having regard to the final report of the hearing officer in this
case (4),

(cid:151) Westfalen Gassen Nederland BV.

consulting the Advisory Committee on Restrictive

After
Practices and Dominant Positions,

Whereas:

(1) OJ 13, 21.2.1962, p. 204/62.
(2) OJ L 148, 15.6.1999, p. 5.
(3) OJ L 354, 30.12.1998, p. 18.
(4) OJ C 78, 1.4.2003.

(2)

The infringements consist of the participation of those
producers of gases for industrial and medical purposes
in a continuous agreement and/or concerted practice
contrary to Article 81(1) of the Treaty. The companies
concerned took part in agreements/concerted practices
regarding price increases for the products concerned,
moratoria to implement these price increases, minimum
prices and various other trading conditions concerning
these products. The undertakings involved belong to
some of the world’s leading industrial gases groups. The
infringements are limited to the industrial and medical
gases market in the Netherlands.

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(3)

(4)

(5)

(6)

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The Commission has evidence that
the undertakings
participated in the infringements from 1989 until 1991
and from 1993 until 1997 in the case of AGA Gas BV,
Air Liquide BV, Air Products Europe Inc. and NV Hoek
Loos, in 1990/91 and from 1993 until 1997 in the case
of Messer Nederland BV, from 1994/95 to 1997 in the
case of Westfalen Gassen Nederland BV and in 1994/95
in the case of BOC Group plc.

2. THE PRODUCTS

in air

in some languages called technical
Industrial gases,
gases, are either derived from air (atmospheric gases:
oxygen, nitrogen, argon)
separation (cid:145)tonnage
plants(cid:146) or are produced in tonnage plants through a
chemical process (carbon dioxide, hydrogen, acetylene),
often as a by-product. The core of the industrial gases
industry is
formed by the three atmospheric gases
oxygen, nitrogen and argon, which together are believed
to account for some 60 % by value (cid:151) and considerably
more by volume (cid:151) of the total European industrial
gases markets. Some atmospheric and non-atmospheric
gases are offered in extremely pure forms or in mixtures
for medical or special purposes, for example medicinal
oxygen.

(7)

(8)

(9)

industries

and
are used in most
Industrial gases
manufacturing processes. Medical gases are used in
hospitals, clinics and in home treatment. The largest
volumes of industrial and medical gases are used for
producing, cutting and welding metals and in the
electronics
chemical
industry and health care are each believed to account
for some 10 % of the gases market. Each gas serves
specific purposes and therefore has a user’s market of its
own.

food industry,

industry. The

industrial gases,

In 1989, following a Commission investigation into the
industrial gases sector and the initiation of proceedings
under Community competition rules (5),
the world’s
major producers of
including Air
Liquide SA, AGA AB, Union Carbide, Air Products
Europe Inc., Linde AG and Messer Griesheim GmbH,
the Commission to
committed themselves vis-(cid:224)-vis
modifying
and
Supply
purchasing commitments under on-site and pipeline
contracts would no longer be of an exclusive nature but
fixed
to quantities
would relate
minimum/maximum range (6).

falling within a

contracts.

tonnage

their

Air gases and other gases such as carbon dioxide are
delivered to medium-sized customers in liquid form
(bulk) at low temperatures. The gas is transported to
customers by road or rail tankers; the customers are
supplied with storage tanks and vaporisation equipment.
Pipelines are used between air separation plants or large
production units and liquefaction plants;
liquefaction
plants are often constructed at the same site as tonnage
plants (piggyback plants), thus avoiding investment in a
pipeline between the two.

supplier

The commitments provided to the Commission in 1989
industrial gases
by the world’s major producers of
referred to in recital 7 also covered sales of the liquid
air gases nitrogen, oxygen and argon under bulk
contracts. Here too, supply and purchase commitments
should relate to quantities up to a fixed maximum. The
to maintain the
Commission allowed a
exclusive right to fill and to maintain storage tanks for
reasons of safety. A customer wishing to use more than
one supplier would need more than one storage tank.
The duration of liquid air gas contracts was reduced to
three years. Customers would continue to be free to
purchase or lease cryogenic tanks from the gas supplier;
they can stipulate that tank rental contracts should be
separate from the gas supply contract. Tank rental
contracts can be made for a maximum period of five
years.

There are three different types of gases markets based
on delivery methods: tonnage sales are made to certain
large customers who require very large quantities of,
primarily, the atmospheric gases oxygen and nitrogen.
These supplies are made through either dedicated
(cid:145)on-site(cid:146) production plants or dedicated pipeline links.
investment
The contracts, which include the capital
such plant or pipeline
necessary
are
links,
in view of the importance of those
tailor-made and,
last up to 15 years. The Netherlands and
investments,
Belgium have very dense pipeline networks. Tonnage
sales
few
companies which need such large quantities would not
consider bulk or cylinder supplies an alternative, save as
a back-up system.

separate market, given that

are a

the

for

(10)

Smaller customers of air gases, as well as buyers of
welding gases, gas mixtures and special or very pure
gases, are supplied by means of cylinders usually made
of steel. Cylinders may be filled at, and distributed from,
liquid
the supplier’s production plant. Alternatively,
gases are transported in tankers
filling
to cylinder
centres, where the transformation into compressed gas
and the filling of cylinders takes place. From there
cylinders in various sizes holding gas under pressure are
either transported directly to the customer, or to depots,

(5) Case IV/30.869.
(6) Press release IP (89) 426, 7 June 1989.

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sometimes
independent undertakings, which supply
retail customers. Welding gases, such as acetylene, are
only transported in cylinders and under low pressure.

customers can obtain the different types of industrial
gases they need from a single supplier.

(11) Although the volumes of cylinder gases sold are limited,
their importance in revenue terms is quite important.
the higher prices and related
This is so because of
charges that go with cylinder sales.
In the cylinder
business, large suppliers usually categorise customers on
the basis of the quantities purchased in a given period.
The more important cylinder customers will usually be
served directly by the industrial gases undertaking,
whereas
smaller customers will deal with a depot
holder. The commitments given to the Commission in
1989 by the world’s major producers of industrial gases
did not cover supplies of gases in cylinders.

(12)

(13)

(14)

these

industry generally views

three different
The
distribution methods as separate product markets and
the Commission took the same view in case IV/30.869
(cid:151) Industrial Gases (7) and in the merger decisions Air
Liquide/BOC (8) and Linde/AGA (9). The customer will
generally choose the supply method on economic
grounds within the possibilities available for a specific
gas at a specific user’s location. This does not mean that
a given customer cannot buy from a single undertaking
several gases supplied in different forms, for example
oxygen by pipeline, carbon dioxide in liquid form and a
specific argon mixture in cylinders.

themselves. Usually both the

In all three forms of delivery the price of transport and
packaging is very high compared with the value of the
gases
tank and the
cylinders remain the property of the supplier of the
gases and are rented by the customer. Cylinders and
tanks need to undergo regular safety checks by the
owner.

Because transportation is expensive and because few
suppliers are able to produce all
industrial gases
themselves in every region, the industrial gases groups
and their national subsidiaries tend to supply each other
with large quantities of gases by pipeline or in liquid
form. They do so by means of swap deals or under
take-or-pay or other contracts. Such supplies between
groups are often of a cross-border nature. Filling depots
sometimes also fill
belonging to one supplier will
In this way
cylinders on behalf of

competitors.

(7) Press release IP (89) 426, 7 June 1989.
(8) COMP/M.1630, Decision of 18.1.2000.
(9) COMP/M.1641, Decision of 9.2.2000.

3. THE SUPPLIERS

(a) Hoek Loos

(15)

(16)

The largest industrial gas company in the Netherlands at
the time of the investigation, was NV Hoek’s Machine
en Zuurstoffabriek, now named NV Hoek Loos, and
hereinafter referred to as (cid:145)Hoek Loos(cid:146). It was founded in
1891 and is located in Schiedam. On 31 December
1996 Hoek Loos had 1 798 employees, 826 of whom
worked in the Netherlands. Hoek Loos’s structure was
modified in 1996, when the NV became a holding
company for a number of working companies including
Hoek Loos BV, Hoek Loos Medische Gassen BV, the
Belgian company Hoek Loos NV and the company
Holox Inc., United States of America.

The ultimate parent company of Hoek Loos is Linde AG
in Wiesbaden, Germany. The Linde group achieved a
turnover of DEM 8,801 billion worldwide in 1996 with
a staff of over 30 000. Besides producing, marketing
and selling industrial and medical gases
in many
countries of
the world, Linde also engineers and
produces various types of installations for the chemicals
sector,
transportation vehicles, hydraulic systems and
refrigeration systems. Linde’s gases activity accounted
for a turnover of [(cid:133)] (*) in 1996.

(17)

[(cid:133)].

(18)

In 2000 Hoek Loos became a 100 % subsidiary of Linde
when Linde bought up all remaining Hoek Loos shares
traded on the stock exchange.

(19) Hoek Loos is active in the Netherlands, Belgium and the
south-east of the United States of America. Hoek Loos
produces, markets and distributes industrial and medical
gases as well as related equipment, systems and services.
Until 1996 it also manufactured medical equipment. In
the Netherlands, where it owns air separation units
located in IJmuiden and Botlek/Rotterdam, Hoek Loos
supplies gases in cylinders, in bulk and by pipeline and
also offers gases through on-site installations. Hoek Loos
is a founding member of the Dutch sector association
VFIG. Being the largest member, Hoek Loos has always
chaired the VFIG.

(*) Business secrets have been omitted from the text.
(*)

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(b) AGA

(c) Air Products

(20) At the material time the second important industrial
gases company in the Netherlands was AGA Gas BV,
founded in 1971 and located in Amsterdam (10). At this
time, AGA Gas BV was owned by AGA Invest BV,
which in turn was owned by AGA AB of Liding(cid:246), the
ultimate Swedish parent of the AGA group. AGA AB
achieved a turnover of SEK 12,860 billion worldwide in
1996 with a staff of over 10 000.

as

exists

(21) AGA Gas BV has undergone a change of corporate
structure since the period under investigation and no
such. Following the Commission
longer
decision on the merger of Linde and AGA (11), AGA AB
was acquired by Linde AG and one of the remedies
offered in order
the Commission to reach its
favourable decision, was the divestiture of AGA Gas
BV’s cylinder gas business in the Netherlands.

for

(22)

In December 2000, AGA Gas BV was split by a legal
demerger into AGA Gas BV (the remainder) and AGA
Transfer BV, renamed AGA Amsterdam BV. AGA Gas
BV basically retained the liquid business, the medical
the speciality gases business and the
gases business,
Mison business. AGA Amsterdam took over the cylinder
gases business.

(23)

In 2001 AGA Gas BV (the remainder) was subsequently
merged into AGA Invest B.V and the latter sold by AGA
AB to Hoek Loos. AGA Amsterdam BV was sold to Air
Products Holdings BV and Prodair Corporation.

(24) At the material time AGA Gas BV (hereinafter AGA)
produced, marketed and sold industrial and medical
gases as well as related equipment, systems and services.
Until 1995 AGA and Hoek Loos had a joint production
joint venture called Cryoton in the Rotterdam area.
From that year on AGA retained a
liquid CO2
production unit, whereas the air separation unit was
allocated to Hoek Loos.

(25) AGA is

a

founding member of VFIG. As

the
second-largest member, AGA has traditionally supplied
the treasurer of the VFIG.

(10) AGA has, however, been present in the Netherlands since 1917.
(11) COMP/M.1641, Decision of 9.2.2000.

(26) A third long established player in the Netherlands is Air
Products Nederland BV (hereinafter Air Products),
located in Waddinxveen. [(cid:133)]. Air Products is a founder
member of the VFIG.

(27)

Incorporated in the State of Delaware (United States of
America), Air Products Europe Inc. is in charge of the
European operations of Air Products and has
its
headquarters in the United Kingdom.

(28) Air Products’ ultimate parent

is Air Products and
Chemicals Inc., Allentown, Pennsylvania, United States
of America. The group employed 16 700 employees in
1998; [(cid:133)].

(d) Air Liquide

(29) Air Liquide BV (hereinafter Air Liquide) was founded in

1988 and is today located in Eindhoven.

(30)

(31)

It also serves one large customer

Its ultimate parent is Air Liquide SA, France. Air Liquide
in the
markets and sells bulk and cylinder gases
Netherlands.
in
Belgium. Tonnage contracts are dealt with by an
intermediary company within the Air Liquide group
called Air Liquide Nederland BV. Air Liquide is a
founding member of the VFIG.

Liquide

group employed

some 27 000
The Air
employees in 1996. The Air Liquide group holds a
strong position in the industrial gases markets of France
and Belgium.

(e) Messer

(32)

The parent company of Messer Nederland BV, until
1997 called Messer Griesheim Nederland BV (hereinafter
Messer),
is the Messer group in
Frankfurt, Germany, with a turnover of DEM 2,300
billion in 1996 and some 7 200 employees worldwide.

located in Moerdijk,

(33) At the material time the ultimate parent company was
the Hoechst group, which held a two-thirds stake in the
Messer group (the other third being owned by the
Messer
about 120 000
employees in 1996. Messer, which started operations in
1989, became a member of the VFIG in October 1991.

and which

family)

had

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(34) At present

and Goldman Sachs, which

the Messer Group is majority owned by
a
stake in the Messer Group when they

acquired

Allianz
two-thirds
purchased Hoechst’s shares.

(f) Westfalen

(35) Westfalen Gassen Nederland BV (hereinafter Westfalen)
started operating in the Netherlands in 1989. Located in
Deventer, its ultimate parent company is Westfalen Gase
AG of M(cid:252)nster, Germany, which had approximately
1 100 employees in 1997. Westfalen became a member
of the VFIG in July 1994.

(g) BOC

in 1985. NTG became a member of
the VFIG in
mid-1989. Until an air separation unit owned by its
sister company BTG started operations in Belgium in
late-1998, NTG purchased most of its bulk gases from
other gas companies. NTG only markets and sells gases
in bulk and in cylinders, it is not active in the tonnage
markets.

(40) NTG’s ultimate parent company is SOL SpA in Monza,
Italy, founded in 1927, which is a multinational group
engaged in the production,
applied research and
marketing of industrial, pure and medicinal gases. The
SOL Group employed some 900 people in 1996.

4. OTHER ACTORS

(a) Hydrogas

(36)

Based in Guildford, Surrey, United Kingdom, the BOC
Group plc had about 40 000 employees
in 1996.
Approximately 70 % of the group’s turnover in 1996
came from the gases business. At the time it was also
active in the semiconductor and vacuum technology,
distribution and health-care sectors. The BOC Group has
its Community stronghold in the United Kingdom.

in Sluiskil

(41) Hydrogas Holland BV (hereinafter Hydrogas) is located
in Vlaardingen. It has access to several carbon dioxide
production plants
and is very much
specialised in the bulk supply of this particular gas to
other gas companies and to end-users. Hydrogas realised
a turnover on liquid gases of NLG 25,4 million in 1996,
mostly in sales to other gas companies within the Norsk
Hydro group and to competitors. Hydrogas became a
member of the VFIG in May 1991.

for

through four
company

(37) At the material time the BOC Group conducted its gases
activities in the Benelux (operated out of Zaventem,
legal entities: BOC NV (the
Belgium)
Belgian
the Zaventem
responsible
headquarters function), BOC Gas BV (a Dutch company
the tonnage and bulk business
responsible for
in
the Netherlands), BOC Cylinder Gas NV
Terneuzen,
filling operation in
cylinder
(responsible
Herenthout, Belgium) and BOC Gaz SA (a French
company responsible for sales in France). These BOC
companies, which together constitute the undertaking
BOC Gases Benelux (hereinafter BOC), are responsible
inter alia for marketing cylinder and bulk gases in
Belgium,
the Netherlands and neighbouring areas of
northern France and western Germany. BOC Gas BV
became a member of the VFIG in May 1991.

the

for

(42) Hydrogas’s ultimate parent company is Norsk Hydro
ASA of Oslo, Norway, which is active in the fertilisers,
industrial chemicals, oil and natural gas, aluminium,
magnesium and petrochemicals
sectors. The Norsk
Hydro group achieved a turnover of some NOK 70
billion in 1996 with 32 000 employees. 51 % of Norsk
is held by the Norwegian
Hydro’s
government.

capital

share

(43)

The Commission notes that although Hydrogas will be
the VFIG
mentioned as having attended some of
meetings below, no conclusion is drawn for
this
company as regards any infringement.

(38)

The BOC Group sold its gases operations in the Benelux
and Germany to the Air Liquide Group at the end of
1998 for a total cash consideration of GBP 112 million.

(b) UCC, Praxair, Indugas

(h) NTG

(39) Nederlandse

BV
(hereinafter NTG) is located in Tilburg and was founded

Gasmaatschappij

Technische

(44) Union Carbide Corporation of Danbury, Connecticut,
United States of America, manufactures, markets and
sells various chemicals in many countries of the world.
included
Until 1 July 1992 its product branches
industrial gases.
Its subsidiary in the Netherlands and
Belgium, Union Carbide Benelux NV (hereinafter Union
Carbide), was also a supplier of industrial gases. Union
Carbide is not and has never been a member of the
VFIG.

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as

(45) On 1 July 1992 Union Carbide Corporation hived off its
industrial gases branch, which took the name Praxair
Inc.,
a Delaware, United States of America,
corporation. Praxair Inc. achieved a turnover of USD
4,449 billion in 1996.
In the Netherlands, Praxair
operates as Praxair NV (hereinafter Praxair), located in
Olen, Belgium. The Praxair Group owns and operates a
number of
facilities producing atmospheric gases in
Belgium and the Netherlands. Most are on-site plants
dedicated to serving the customer on whose site the
located in
facilities are located. Two such plants,
Zwijndrecht and the Belgian town of Lommel, produce
atmospheric gases that are sold on the market by
pipeline and in liquid form. The Praxair Group does not
operate any filling plants for atmospheric and medical
gases in the Netherlands and does not sell gases in
cylinders there. Praxair is not and has never been a
member of the VFIG.

(46)

(47)

Indugas NV (hereinafter Indugas),
located in Schoten
(Belgium), was founded as a reseller and distributor of
industrial gases and welding products in 1979 by Union
Carbide and the Belgian company Antwerpse Chemische
Bedrijven LCB NV. Union Carbide (Praxair since 1 July
1992) and LCB each own 50 % of
Indugas’s capital
stock. Indugas purchases bulk atmospheric gases from
Praxair, most of which it then fills into cylinders. Since
1979 Indugas has been the sole distributor for Union
Carbide/Praxair’s atmospheric gases and mixtures of
such gases.
It also became sole reseller for Praxair’s
specialty gases in the Netherlands on 1 January 1995. In
1996 Indugas sold gases worth NLG 16 million in the
Netherlands through its subsidiary Indugas BV. Indugas
became a member of the VFIG in September 1993.

The Commission notes that the statement of objections
was not sent to the companies referred to in section
A.4(b) and that therefore no conclusion will be drawn
as regards any infringement, even though some of those
companies
documents
described below.

are mentioned

certain

in

(c) ACP and IJsfabriek Strombeek

(48)

Two small, independent Belgian producers of industrial
gases are, to a certain degree, also active on the Dutch
market.

(50)

(51)

industrial gases groups,
sells cylinder gases on the
Belgian market only. ACP also produces carbon dioxide
in Geleen (Netherlands), which it sells in liquid form
mainly in Belgium,
the Netherlands, Germany and
France. ACP’s total turnover for industrial gases is BEF
526 million.

independent public
Ijsfabriek Strombeek is another
limited company and is located in Meise in Belgium. In
1996 it sold cylinder gases in the Benelux, Germany
and the United Kingdom, and liquid gases in Belgium,
the Netherlands, Germany, France and Greece. The
company realised a total turnover of BEF 567 million.
In
only
significant market share is for nitrous oxide (laughing
gas), which it sells both in cylinders and in bulk.

the Netherlands

Strombeek’s

Ijsfabriek

5. THE TRADE ASSOCIATION (cid:151) VFIG

association (cid:145)Vereniging

van Fabrikanten van
The
(VFIG) was founded on 23 March
Industriºle Gassen(cid:146)
1989. There was no notarial deed, nor was
the
association included in the public register of associations
its
(Verenigingenregister). According to Article 5 of
statutes, VFIG’s members
are undertakings which
manufacture and sell industrial gases in the Netherlands.
Article 4 of its statutes defines VFIG’s objective as being
to promote the interests of its members in technical
matters and regarding safety issues of industrial gases
within Community industry. The secretariat of VFIG is
managed by Teppema BV, which is a daughter company
of Moret Ernst & Young (12) Management Consultants.

(52) At the material time VFIG membership was as follows:

Hoek Loos

Founding Member, Chair Holder, 1989

AGA

Founding Member, Treasurer, 1989

Air Products

Founding Member, 1989

Air Liquide

Founding Member, 1989

NTG

BOC

Member since mid-1989

Member since May 1991

Hydrogas

Member since May 1991

Messer

Indugas

Member since October 1991

Member since September 1993

Westfalen

Member since July 1994

(49) Acide Carbonique Pur NV/SA (hereinafter ACP)

is
located in Heusden-Zolder in Belgium. This undertaking,
the multinational
which does not belong to one of

(12) The name changed to Ernst & Young in 1999.

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(53)

Pursuant to Article 7 of the statutes, members meet at
least once a year. At these meetings member companies
are usually represented by their general manager and/or
another manager. Since 1990 members have usually
met two to four times a year, as shown in the list at
larger member
recital 106. This list also shows that
companies attend all meetings, but smaller ones do not.
Minutes of
those meetings are drawn up by the
secretariat and put on the agenda of the next meeting
for approval. The members meeting can decide to set
up commissions. A Technical Commission was thus
created in 1991 and has met at least once a year ever
since.

is used

to improve

(57) Oxygen accounts for 21 % of our atmosphere; it has a
Its oxidative
liquefaction point of minus 183 (cid:176)C.
efficiency of
property
the
combustion processes
reactions. As
and chemical
technical or industrial oxygen it is mainly used for the
ceramics,
production of
chemicals, pulp and paper;
it is also used for cutting
and welding; newer applications include water treatment
and fish farming. Oxygen is supplied by pipeline,
in
bulk and in cylinders. Oxygen is also used for medical
purposes in a purer and more expensive form, in which
form it is supplied in cylinders or in bulk.

steel, other metals, glass,

(54) Moret Ernst & Young produce quarterly statistics on the
amounts of liquid and cylinder gases sold by members
on the Dutch market. The data is presented in
aggregated form, allowing each participant to assess its
own market share only. Members of VFIG are not
obliged to participate in the statistical system, but since
1993 most have.

is even more inert

(58) Argon is a noble gas, which accounts for only 1 % of
it has a liquefaction point of minus
our atmosphere;
186 (cid:176)C.
than nitrogen and is
It
therefore used in blanketing operations, including as a
shielding gas in welding and in certain highly inert
processes in electronics and metallurgy. Argon is not
only produced in air separation units, but also as a
by-product of the ammonia process. Argon is generally
supplied in bulk or in cylinders.

6. THE INDUSTRIAL AND MEDICAL GASES MARKETS

(59)

(a) The relevant product markets

(55)

This Decision only concerns supplies of gases in liquid
form (bulk) and in cylinders. Tonnage contracts fall
outside of the scope of this Decision. In bulk form, the
most relevant gases for this Decision are the three
atmospheric gases nitrogen, oxygen and argon as well
as carbon dioxide (CO2). Supplied in cylinders, nitrogen,
oxygen, argon, carbon dioxide, acetylene and argon
mixtures are the most relevant gases. Every one of these
gases has several fields of use.

Its

and solids

(56) Nitrogen accounts for 78 % of our atmosphere; it has a
specific
liquefaction point of minus 196 (cid:176)C.
properties are its inertia and, in liquid form, its ability
to absorb heat. In gaseous form it is used to protect
liquids
from corrosion, microbiological
attack, the formation of explosive mixtures and other
effects which can arise from their being in contact with
traditionally used in the steel and other
air.
It
metallurgical
in the oil and petrochemicals
industries and, increasingly, in the foods (freezing and
packaging)
industries. Nitrogen is
and electronics
supplied by pipeline, in bulk or in cylinders.

industries,

is

a

as

Carbon dioxide is mainly produced as a by-product of
chemical processes, notably
by-product of
hydrogen. Industrial gases companies generally buy CO2
from chemical and petrochemical companies and sell it
in bulk and in cylinders. CO2 is used as dry ice for
freezing purposes;
in gaseous form for fertilisation in
greenhouses and carbonisation of soft drinks and beer;
it is also used in fire extinguishers, as a protective gas
for storage of flammable and explosive substances and
for many other purposes. For some applications it is
interchangeable with nitrogen.

(60) Argon mixtures are sold in cylinders only. They are

used for welding and for calibration purposes.

(61) Acetylene is a fuel gas, based on carbide production,
is used for
with a very high flame temperature.
welding, cutting and other purposes. It is supplied in
cylinders under low pressure.

It

(62)

It is generally recognised in the industry that, for each
gas, each method of distribution gives rise to a distinct
product market (13). The cost to the producer, the main
factors being labour, energy, depreciation and transport,

(13) Also confirmed in merger decisions M.1630 Air Liquide/BOC and

M.1641 Linde/AGA.

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considerably

varies
to the method of
according
distribution. Therefore, prices charged to the consumers
of the gases differ enormously depending on the form
of delivery used. Cylinder gases are far more expensive
than the same gases in liquid form, which are in their
turn more expensive than those supplied by pipeline in
gaseous
for
transportation and rent, as well as possible safety and
therefore differ according to the
other charges, will
method
gases
commercialised by the different methods are tailored to
different customer requirements.

form. The cost charged to customers

Furthermore,

delivery.

the

of

(63) One aim of the agreements concerned by this Decision
was to fix the cost of delivery of cylinder gases in
general. The Commission notes that those agreements
applied to the delivery of all cylinder gases and not just
the most important ones described above. The other
oxide,
include
gases
hydrogen,
and
and various
mixtures. Similarly, in the field of bulk gases, the supply
less important gases, for instance
conditions of other,
nitrous oxide, were also affected by the agreements in
question.

concerned
tetrene

helium,

nitrous

special

gases

(b) The relevant geographic market

The geographic market for supplying industrial gases is
limited by the costly means of transport described under
(a) above and can therefore be defined as local or
regional
IV/M.926 Messer
Griesheim/Hydrogas, in 1997, the Commission based its
assessment on an effective transport range of 200 km.

scope.

Case

In

in

(64)

(65)

(67)

(68)

(69)

distances made in the 1980s still hold true. ACP puts
the effective radius for liquid CO2 at 300 km.

in the file indicate that

By transport over water the radius, at least for sales
between industrial gases groups, can be much greater:
references
liquid argon is
shipped from the Netherlands to Greece and that liquid
CO2 can be shipped from the Netherlands to Poland and
Russia. For acetylene, which is only transported in
cylinders,
the effective radius is estimated at 300 to
400 km.

In 1997, in Case IV/M.926 Messer Griesheim/Hydrogas,
the Commission considered the relevant geographic
market for the joint venture in question to be local or
regional because transportation over longer distances
was so costly.

the

than

level

suppliers of

suggests
be

industrial
the opinion that

The fact that some gas companies, such as AGA for its
liquid gases and BOC until December 1998, operate on
relevant
a Benelux-wide
that
geographic market might
the
larger
in reply to the Commission’s
Netherlands. However,
gases
queries,
in the
all
the geographic
Netherlands are of
market for cylinder gases is a national one. The main
reason they mention is
regulation
regarding cylinders, which makes it impossible to use
(cid:145)Belgian(cid:146) cylinders for sales in the Netherlands and vice
its own (15).
versa; Germany too has
Cultural and language differences and the important
service aspect involved in the supply of cylinder gases
are also mentioned as arguments in favour of national
markets.

governmental

standards of

Back in 1989, in the context of a case (14) examining
the conditions applied by suppliers of industrial gases to
their customers, the Commission established that simple
liquid gases, such as oxygen and nitrogen, have an
economic distribution radius of 300 to 400 km and the
more costly argon a radius of 600 to 800 km.
are not usually
in cylinders
Atmospheric
transported beyond a range of 100 km, with the
exception of the more expensive argon.

gases

(70)

For liquid gases the situation is less obvious. There are
differences
in regulations between Member States
regarding bulk tanks, but once these are installed
cross-border supply would not seem to constitute a
barrier. However, most of the companies stated to the
Commission that they consider markets for liquid gases
to be national too. AGA, Praxair and ACP differed in
that
to depend
more on the effective radius.

they believed the geographic market

(66)

This estimation for cylinder gases was confirmed in the
present case by Air Liquide, which, however, limited the
effective radius
liquid oxygen and nitrogen to
150 km and for liquid argon to 400 km. Praxair and
BOC, on the other hand, believe that the estimations of

for

(14) Case 30.869, see Commission press release IP(89) 426 dated

7 June 1989.

(71)

The Commission notes that the production and supply
of industrial gases in the Community is dominated by a

(15) Council Directive 99/36/EC on transportable pressure equipment
was not adopted and published until May 1999 (OJ L 138,
1.6.1999). It was to be implemented by the Member States by July
2001 at the latest.

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few large, multinational groups, which have national
subsidiaries in most Member States. These subsidiaries
to local depot holders and to
supply bulk gases
end-customers and cylinder gases
to end-customers
within that particular Member State only. These
commercial
subsidiaries
conditions for supplies within that Member State.

also set prices

and other

(72) An end-customer in one Member State will

to obtain supplies from subsidiaries of

find it
difficult
the
multinational groups located in other Member States.
This is not only because of the limited effective radius
the internal division of geographic
but because of
a
responsibilities
the
within
consequence, prices and conditions of sale for both bulk

groups (16).

As

(73)

(74)

and cylinder gases differ between Member States, a fact
borne out by several documents in the file (17).

the Commission notes that

Finally,
the structure of
supply is different between Member States: Air Liquide
is the clear market leader in France and Belgium, Messer
and Linde are strong in Germany and Hoek Loos is the
market leader in the Netherlands, followed by AGA.

the
concludes
The Commission therefore
this Decision the relevant geographic
purposes of
markets for both cylinder gases and liquid gases is
confined to the Netherlands (18).

that

for

(c) Market structure

(75)

Table 1 shows the overall size of each addressee of this Decision in 2001 and gives an estimation
of its relative importance on the Netherlands market for industrial and medical gases (cylinders and
bulk only) in 1996. The figures provided are based on the companies’ responses to request for
information and estimates of the Commission (19).

Table 1

Undertaking

Total turnover of the addressees of the
Decision for 2001 (EUR)

Turnover in cylinder and liquid gases in
the Netherlands (EUR) and estimated
market shares for 1996

NV Hoek Loos

AGA Gas BV (20)

Air Products
Nederland BV

Air Liquide BV

Messer Nederland BV

BOC Group plc

Westfalen Nederland BV

[(cid:133)]

[(cid:133)] (21)

[(cid:133)]

[(cid:133)]

[(cid:133)]

[(cid:133)]

[(cid:133)]

[(cid:133)]

[(cid:133)]

[(cid:133)]

[(cid:133)]

[(cid:133)]

[(cid:133)]

[(cid:133)]

(20) Following the liquidation of AGA Gas BV in 2000 to 2001, AGA AB has accepted liability for the acts of its subsidiary

and is the addressee of the Decision.

(21) 2000 is the last complete business year for which turnover figures are available for AGA Gas BV.

(cid:33)(cid:33)(cid:33)(cid:33)(cid:33)(cid:33)

(16) For example, file AGA, p. 852; AL, p. 5609; HL, p. 2788.
(17) For example file AGA, pp. 290, 6755 and 1056.
(18) Also confirmed in merger decisions M.1630 Air Liquide/BOC and M.1641 Linde/AGA.
(19) The sales for the year 1996 are provided as an example. The relative importance of each undertaking’s
annual cylinder and bulk sales may have varied from year to year over the period of the infringement. The
market share estimates are derived directly from the data submitted by the undertakings and are provided
on a purely indicative basis. The market share estimates are based on the assumption that the companies in
Table 1 together covered over 90 % of the Dutch market in 1996.

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(76)

Total annual sales of the relevant industrial gases in the Netherlands in 1994 to 1996 are estimated
as follows:

Table 2

Industrial oxygen in cylinders

approximately 7 million m3

Nitrogen in cylinders

Argon in cylinders

approximately 2 million m3

approximately 2,5 million m3

Argon mixtures in cylinders

approximately 5,3 million m3

Acetylene

CO2 in cylinders

Liquid oxygen

Liquid nitrogen

Liquid argon

Liquid CO2

approximately 2 million m3

approximately 1,3 million m3

approximately 100 000 tonnes

approximately 280 000 tonnes

approximately 10 000 tonnes

approximately 120 000 tonnes

(77)

Tables 3 and 4 provide an indication of the market shares of the companies involved for each
gas (22), for cylinder deliveries and liquid deliveries, on the Netherlands market for 1996:

Table 3

Cylinder gases

(in %)

1996

Acetylene

Argon

Carbon dioxide

Argon mix

Nitrogen

Oxygen

Hoek Loos

[30 to 35]

[30 to 35]

[40 to 50]

[20 to 25]

[40 to 45]

[30 to 35]

AGA

[40 to 45]

[35 to 40]

[25 to 35]

[35 to 40]

[20 to 25]

[25 to 30]

Air Liquide

[5 to 10]

[0 to 10]

[0 to 5]

[5 to 10]

[5 to 10]

[5 to 10]

Air Products

[0 to 10]

[5 to 10]

[5 to 10]

[5 to 15]

[5 to 10]

[5 to 10]

Messer

[0 to 5]

[0 to 10]

[0 to 5]

[0 to 10]

[0 to 10]

[0 to 10]

Westfalen

[0 to 5]

[0 to 5]

[0 to 5]

[0 to 5]

[0 to 5]

[0 to 5]

BOC

NTG

[0 to 5]

[0 to 5]

[0 to 5]

[0 to 5]

[0 to 5]

[0 to 5]

[0 to 5]

[0 to 5]

[0 to 10]

[0 to 5]

[0 to 5]

[0 to 5]

TOTAL

93 %

92 %

94 %

87 %

92 %

88 %

(22) Based on their replies to the Commission’s requests for information.

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L 84/11

Table 4

Liquid gases

1996

Oxygen

Nitrogen

Argon

Carbon dioxide

(in %)

Hoek Loos

AGA

Air Liquide

Air Products

Messer

Westfalen

BOC

NTG

[5 to 15]

[15 to 20]

[20 to 30]

[25 to 30]

[0 to 5]

[0 to 5]

[5 to 10]

[0 to 5]

TOTAL

91 %

[20 to 30]

[20 to 25]

[10 to 20]

[20 to 25]

[0 to 5]

[0 to 5]

[5 to 10]

[0 to 5]

91 %

[10 to 20]

[20 to 30]

[25 to 35]

[15 to 20]

[0 to 5]

[0 to 5]

[0 to 5]

[0 to 5]

87 %

[15 to 20]

[25 to 35]

[25 to 30]

[0 to 5]

[5 to 10]

[0 to 5]

[0 to 5]

[0 to 5]

80 %

(78)

The Commission notes that since the late-1980s a number of newcomers have entered the Dutch
industrial gases market: Air Liquide, Messer, BOC and Westfalen and, in the CO2 market, Hydrogas.
In a mature market, where there is little prospect for growth over and above that of the economy
as a whole, the arrival on the market of new players is likely to enhance competition. Newcomers
will try to acquire a sufficient share of the market, whereas the established companies will defend
their market shares. This enhanced competition for customers is likely to lead to lower average
prices.

(79) Data supplied by Hoek Loos, Air Products and AGA confirm that there was indeed a negative
development in the price level of all major industrial gases since 1989, whether supplied in bulk or
in cylinders. This development took place for gases facing declining general demand (such as
acetylene) as well as for gases in more stable markets.

(80)

The Commission notes that, despite the entrance of newcomers the markets for cylinder gases in
the Netherlands have remained highly concentrated. The Herfindahl-Hirschmann Index (HHI) (23)
exceeded 1 800 for each of the cylinder gases in Table 3 in every one of the years 1993 to 1997,
and the combined market share of the five larger undertakings AGA, Air Liquide, Air Products,
Hoek Loos and Messer was never lower than 80 %. Variations in the market shares of each
individual company were small.

(81)

for

the liquid gases oxygen, nitrogen, argon and carbon dioxide were also
The markets
concentrated. With the exception of oxygen, the five leading companies together held a share of
more than 80 % in each of the years 1993 to 1997. Their individual market shares were less stable
than for cylinder gases, however. The HHI oscillated around 1 800.

(82)

It appears from the Commission’s file that Air Liquide, Hoek Loos, Air Products and AGA tried to
maintain their market shares by a policy of retaliation against each other or against
third
companies whenever one of their customers was taken over by a competitor (24).

(23) Index calculated by adding the squares of market shares. An HHI below 1 000 indicates a dispersed market, an
HHI between 1 000 and 1 800 indicates a moderately concentrated market, an HHI above 1 800 indicates a highly
concentrated market.

(24) For example, file AGA, pp. 189 and 4960.

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(83)

(84)

(85)

In this context it should be noted that gas suppliers are rather well informed about each other’s
clients. Because cylinders and gas tanks usually belong to the gas supplier and bear that company’s
markings, a salesman visiting a customer or a potential customer can easily see who the current
supplier is. A supplier can therefore react immediately if a customer with which it has a contract
starts buying from a competitor. The larger suppliers of industrial gases certainly maintain lists for
each competitor detailing customers they have lost and won. These lists also indicate price
concessions
they had to accept because of competitive offers made by that particular
competitor (25). This knowledge, together with lists of that competitor’s potentially interesting
clients, allows the supplier in question to set up (cid:145)hit lists(cid:146) for a retaliation campaign (26). In AGA
documents this retaliation policy is referred to as the (cid:145)balance of terror(cid:146) (27).

Retaliation campaigns need not be restricted to the same geographic market. Several documents in
the Commission’s file refer to cross-border retaliation, notably in order to hit an aggressive
competitor on its home market, where suitable targets may be easier to find (28). Other documents
refer to campaigns at a Benelux level. Cross-border retaliation campaigns are usually organised or at
least coordinated by the group to which the gas supplier in question belongs (29).

It is common in the sector for prices and other supply conditions for cylinder and bulk gases to
differ according to the customer. New customers are won by offering low prices and favourable
supply conditions. These prices and conditions are increased on a yearly basis, usually at the
beginning of each calendar year. Although each gas is a homogenous product and customers can
easily switch between suppliers, studies made by some undertakings in the industrial gases sector
show that there is nevertheless a high degree of loyalty among customers to (cid:145)their(cid:146) supplier (30).
This can be explained by the service aspect of the industrial gas business, which includes speedy
and reliable supply as well as good advice to customers on the use of the product in question.
Consequently, customers tend to stick to their supplier despite the regular price increases they have
to pay. Only when the difference between what they are paying and the much more favourable
prices and conditions offered by competitors exceeds a certain level will customers contemplate
switching. The current supplier must then either match the price offered or lose the customer. In
both cases it is likely to retaliate by offering favourable conditions to one of its competitor’s
customers with a similar offtake.

(86)

Thus, two price levels can be distinguished for each supplier of industrial gases in cylinders, a
variable level for existing customers and a minimum price used to attract new customers. A similar
difference exists for prices of industrial gases in bulk.

B. PROCEDURE

1. THE INSPECTIONS

(87) On 11 and 12 December 1997 investigations pursuant to Article 14(3) of Regulation No 17 took
place simultaneously and without prior warning at the premises of AGA, Air Liquide, Air Products
and Hoek Loos.

(25) For example, file AL, pp. 2104 to 2111, 2152; AL, p. 2161; AGA, p. 368 and AP, pp. 1563 to 1565.
(26) For example, file AGA, p. 4938; BOC, p. 3614; MG, p. 7294 and AGA, p. 919.
(27) For example, file AGA, p. 4954.
(28) For example, file HL, pp. 2651 and 3041; BOC, pp. 3762 to 3772; AGA, pp. 867 and 877 and MG, p. 4814.
(29) For example, file AL, p. 2161; BOC, pp. 3762 to 3773; HL, p. 3041 and AP, pp. 1503 and 1508.
(30) For example, file AP, p. 1645 and AGA, p. 6557.

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(88)

In the course of 1998 investigations pursuant to Article 14(2) of Regulation No 17 took place at
BOC, Hydrogas, Messer and Westfalen.

2. REQUESTS FOR INFORMATION

(89) On 24 July 1998 the Commission addressed requests for information pursuant to Article 11 of

Regulation No 17 to AGA, Air Liquide, Air Products, Hoek Loos, NTG and Praxair.

(90)

Requests for information under Article 11 of Regulation No 17 were also addressed to ACP and
IJsfabriek Strombeek on 14 September 1998, to Westfalen, BOC and Indugas on 12 October 1998,
again to ACP on 13 October 1998, to Messer on 30 October 1998, to Hydrogas on 12 November
1998 and again to BOC on 22 December 1998.

(91)

Further requests under Article 11 of Regulation No 17 were sent
Products, Hoek Loos and Messer on 7 April 1999 and to Hydrogas on 12 April 1999.

to AGA, Air Liquide, Air

(92) On 20 January 1998 a request for information pursuant to Article 11 of Regulation No 17 was

addressed to the trade association VFIG.

(93)

(94)

The last requests for information pursuant to Article 11 of Regulation No 17 were addressed to
AGA, Air Liquide, Air Products, Hoek Loos, Messer, Westfalen, BOC and NTG on 22 February
2002 and on 5 June 2002 to AGA, Air Liquide, Air Products, Hoek Loos, Messer, Westfalen and
BOC.

In these requests for information,
the undertakings were required to provide information on
meetings with competitors, clarifications on documents found at their premises during inspections
and data on their general increases in prices and in other supply conditions. They were also asked
to give their views on the definition of the market, to estimate their market shares and the total
value of the market and to provide additional data on their business activities.

3. THE ADMINISTRATIVE PROCEDURE

(95) On 9 July 2001 the Commission initiated proceedings in the present case and adopted a statement
of objections against the following eight undertakings active in the industrial and medical gases
sector in the Netherlands. The addressees of the statement of objections were: AGA Gas BV, Air
Liquide BV, Air Products Europe Inc., BOC Group plc, NV W.A. Hoek’s Machine- en
Zuurstoffabriek, Messer Nederland BV, Nederlandse Technische Gasmaatschappij BV and Westfalen
Gassen Nederland BV.

(96) All addressees of the statement of objections submitted written observations in response to the

Commission’s objections.

(97)

The undertakings had access to the Commission’s file via a CD-ROM copy of the Commission’s file,
which was sent to them shortly after proceedings were opened.

(98) An oral hearing was held on 10 January 2002. The following undertakings took part: AGA AB as
successor of AGA Gas BV, Air Liquide BV, Air Products Europe Inc. on behalf of Air Products
Nederland BV, BOC Group plc, NV Hoek Loos, Messer Nederland BV and Westfalen Gassen BV.

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(99) As they had done in their written replies, two of the companies concerned, Air Liquide and
Westfalen, contested the facts as set out in the statement of objections and four companies, AGA,
Hoek Loos, Air Products and Messer, said they did not substantially contest the facts. BOC made
only a few minor comments in view of its minimal presence on the market at the time, and NTG
did not attend the hearing.

(100) Most of the undertakings present, whether contesting the facts or not, raised the issue of limitation.
They alleged that there was a lack of documentary evidence in the Commission’s file for the period
1992 to 1994, and that the alleged infringements before 1992 were therefore time-barred because
the surprise inspections took place on 11 and 12 December 1997. This point will be addressed in
Part II, section E.

C. DETAILS OF THE INFRINGEMENTS

1. INTRODUCTION

(101) The Commission has evidence in its file that in the period 1989 to 1997 the leading undertakings

supplying industrial gases in the Netherlands met regularly. At these meetings they:

(a) discussed and fixed the percentage or the amount by which they intended to increase prices
and other trading conditions for cylinder, and sometimes bulk, gases supplied to their existing
customers in the following year;

(b) agreed not to deal with each other’s existing customers for a period of two to five months

every year in order to implement these price increases;

(c) agreed to respect minimum prices when offering gases in cylinders and in bulk to new

customers; and

(d) agreed to respect other minimum trading conditions for supplies in cylinders and in bulk.
These conditions notably concerned the rent and transportation cost charged to customers.
They furthermore agreed to introduce a drop charge for supplies in bulk and a charge for
safety and environment on supplies in cylinders.

(102) Although these points are linked and had the common purpose of raising, or at least avoiding a
deterioration of, the price level for industrial gases in the Netherlands, they will be described and
analysed separately.

(103) The Commission has evidence of regular meetings between the leading undertakings in the
industrial gases sector in the Netherlands in the period 1989 to 1997. Some of these meetings
were also attended by smaller competitors. At these meetings the participants discussed various
issues of common interest. These meetings provided them with a regular opportunity to discuss
and fix the setting and implementation of their price increases and trading conditions for bulk and
cylinder gases. Bilateral contacts between various undertakings supplemented these anti-competitive
meetings.

(104)

In the early years of the cartel,
industrial gases attended (cid:145)safety
from 1989 on, suppliers of
meetings(cid:146). Such meetings took place in restaurants several times every year. They were sometimes
combined with lunches and were organised by one of the undertakings in question. A draft agenda
was distributed, which did not carry items relating to prices or other trading conditions. As will be

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shown in the following reictals,
items not mentioned on the agenda were nevertheless also
these meetings. Union Carbide, Hoek Loos, AGA, Air Products and Air Liquide
discussed at
attended one or more safety meetings in the years 1989 to 1991. Air Products notes that its senior
manager stopped participating in 1990 and that Union Carbide was not always present in the
meetings he attended (31).

(105) Meetings of VFIG members later became the forum of choice for discussing and fixing prices and
other supply conditions. The official VFIG meetings started in 1989 and usually took place in
Utrecht, where the VFIG has its secretariat. The secretary invited the member companies to attend
by sending them a draft agenda together with the draft minutes of the last meeting.

(106) Further to a request for information under Article 11 of Regulation No 17, the VFIG provided the
reports of the meetings that had been organised. Attendance of VFIG meetings is shown in the
table below:

Table 5

VFIG meetings

Messer

Air
Products

Hydro-
gas

Indugas

West-
falen

NTG

Hoek
Loos

AGA

Air
Liquide

BOC

X

X

0

0

X

X

X

X

X

X

X

X

X

X

X

0

0

X

X

0

0

X

X

X

X

X

0

X

0

0

X

X

X

X

X

X

X

11.10.1989

14.3.1990

19.9.1990*

20.12.1990

27.3.1991

18.9.1991

12.12.1991*

11.2.1992

23.9.1992*

5.11.1992*

17.2.1993

15.6.1993

3.9.1993

16.9.1993
no information

16.12.1993

17.3.1994

18.5.1994*

23.6.1994

14.10.1994

18.11.1994

25.1.1995*

(31) File AP, p. 5964 bis.

X

X

X

0

0

X

X

0

0

X

0

X

X

X

0

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

0

X

X

X

0

0

X

X

X

X

X

X

X

X

0

0

0

0

0

0

0

0

X

X

X

X

0

X

0

0

0

X

X

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VFIG meetings

Messer

Air
Products

Hydro-
gas

Indugas

West-
falen

NTG

Hoek
Loos

AGA

Air
Liquide

BOC

28.4.1995

26.9.1995

23.1.1996*

14.3.1996

23.10.1996

14.3.1997

2.10.1997

5.2.1998

20.3.1998

X

0

0

0

0

0

0

X

X

X

X

X

X

X

0

0

X

X

X

X

X

X

0

X

X

0

X

0

X

0

X

0

X

X

X

X

0

X

0

X

X

0

X

0

X

0

0

X

X

X

X

X

X

X

X

X

X

X

0

X

X

X

X

X

X

X

X

X

X

X

0

X

X

X

0

0

X

0

0

X

* = cancelled, 0 = absent, X = present.

(107) From 1995 on, the larger undertakings in the sector, AGA, Air Liquide, Air Products, Hoek Loos
and Messer, also started meeting informally outside the VFIG framework. These meetings were
organised by each of the undertakings in turn at a restaurant in Breda and, in 1997, in Barendrecht
too. There was no formal agenda for such meetings, nor were formal minutes taken. The meetings
took place several times a year and they continued until at least the end of 1997 (32). At these
meetings the companies discussed and set prices and other supply conditions, as will be shown
below.

(108) The attendance of meetings of AGA, Air Liquide, Air Products, Hoek Loos and Messer at Breda or
Barendrecht is shown in the table below and based on replies received from the companies:

Table 6

Breda/Barendrecht
meetings

Air Products

AGA

Air Liquide

Messer

Hoek Loos

9.3.1995

11.5.1995

15.9.1995

23.11.1995

5.6.1996

2.10.1996

19.3.1997

20.6.1997

8.7.1997

9.9.1997

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

Note: Air Liquide: no data on 1995 available, Messer: no data available, Hoek Loos: no data available.
X = dates which the Companies recal.
blanks = no reply from the Company.

(32) File AGA, p. 5169; AP, p. 5965 and MG, p. 5280.

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(109) Throughout the period 1989 to 1997 there were also
bilateral contacts in the form of letters, fax messages
and meetings. These served to convey what had been
agreed in meetings
to competitors which had not
participated and to discuss the implementation of those
agreements. In many of those contacts the prices and
other supply conditions charged to particular customers
were discussed and in some instances agreed (33).

2. FIXING PRICE INCREASES

(a) Overview

(110) The Commission has evidence in its file that from 1989
on, competitors regularly discussed and agreed the price
increases they would apply the following year for their
existing customers for cylinder, and in some instances
liquid, gases. At least the following companies took part
in these illicit practices: Hoek Loos, Air Products and
AGA in the periods 1989 to 1991 and 1993 to 1997,
Air Liquide and Messer in the periods 1990 to 1991
and 1993 to 1997, Westfalen and BOC in the period
1994 to 1995.

(b) Cartel meetings and collusive contacts

try to improve

All will
customers.
AFTER READING, PLEASE DESTROY.(cid:146) (34)

liquid prices at

L 84/17

existing

(113) The joint agreement lifted the price increase for 1990 to
than that AGA would have applied
a level higher
without
the agreement. Only a month before the
agreement AGA, according to an internal note dated 30
found at Messer), was
October 1989 (which was
contemplating increasing prices
in 1990 by only
4 % (35).

(114) That AGA implemented the agreement

to increase
prices by 5 % is shown by internal instructions of 28
November 1989 to focus on implementing the 5 %
price increase with existing customers (36), which read
as follows:

(cid:145)Re: price increase and filling addition
(cid:133)
1. Prices cylinder gases/ rent and freight
These will be increased as from 1st January with 5 %.
This percentage also counts for freight. The rent tariff
will be adjusted with 1 cent for loose cylinders and with
2 cents for cylinders in packages. The adjustment of the
percentage is due to the new expectations concerning
the developments in 1990.
2. (cid:133)(cid:146).

(111) There was an agreement

in force on 24 November
1989 between Hoek Loos, AGA and Air Products to
raise the price level for their cylinder gases in 1990 by
approximately 5 %.

(115) Representatives of Hoek Loos, Air Products, AGA and
Air Liquide met again on 22 November 1990 and
agreed on a price increase of 5 to 7 % from 1 January
1991:

(112) At AGA an internal memo dated 24 November 1989
was found concerning a (cid:145)safety meeting(cid:146). Written in
English and marked (cid:145)confidential(cid:146), it reads:

(116) At Air Liquide were found internal notes dated 22
November 1990 (37), in which (cid:145)price increases(cid:146) were one
of the items discussed:

(cid:145)All participants agree upon price increase cylinder gases
of +/- 5 %.
HL 4,9 %, UC 5 %, AGA 5 %, AP 5 %.
This information will be passed on to AL by [(cid:133)] of HL.
We will ask AL for moratorium 4-5 months. Starting
right from this moment. Same applies for HL, AGA, UC,
AP. Meaning we should only deal with our own
customers from now on.
All shall work out proposal for liquid price list.
Meeting is set for January 12th for final discussion and
consensus on such a price list.

(cid:145)1. Bulk (cid:151) drop charge
2. Minimum prices (cid:151) increase
3. Price increase 1.1.91 (5 to 7)
ad 1:
HL: all clients approached (cid:151) starting 1.11.90. App. 30
reactions (few, therefore). DFL. 36,-
AP: letter sent 16.11. Integrally everyone starting 1.12.
DFL. 36,-. Already oral/written reactions.
AGA: The large do not accept it (Nedstaal, AKZO), app.
50 % approached. Starting date 1.12.

(33) Examples: AL-AGA (File AL, p. 2159; AGA, p. 4987); AGA-HL
(File AGA, pp. 4944, 4960, 4963 and 4972, 4988); AGA-MG
(File AGA, pp. 4952 and 4961; MG, pp. 7247, 4814 and 4815)
and AGA-AP (File AGA, p. 4979).

(34) File AGA, p. 782.
(35) File MG, p. 4816.
(36) File AGA, p. 5193.
(37) File AL, p. 2112 (own translation).

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AL: Queue charge introduced. Drop charge per 1.1.
legislation on driving hours, queues, fuel,
Arguments:
higher insurance cost, stricter regulations, training cost.
Introduce as a rule in new contracts.
(cid:133)(cid:146).

of

undertakings

(121) The above memo shows that Messer had now joined the
anti-competitive
group
meetings. The Commission notes that on one of the two
copies of this document (41), a representative of AGA
wrote next to (cid:145)price increase of 6 %(cid:146)(cid:145), But Messer has
limited this to when possible(cid:146).

holding

(117) Air Liquide was unable to tell the Commission in what
framework this meeting took place and who attended
on behalf of Air Liquide, apart from the sales manager
[(cid:133)], whose handwriting they identified (38). In its reply
to the statement of objections, Air Liquide stated that
this document merely concerned personal notes made
by [(cid:133)] and was not proof of any binding commitment
on its part (39).

(122)

In its reply to the statement of objections, Messer
the conclusion drawn regarding Messer’s
argued that
involvement
the
in the agreements on the basis of
above AGA memo is too far-reaching. Messer argues
that
the personal
interpretation of AGA’s view of Messer’s attitude and
shows that AGA was aware of the fact that Messer was
following its own policy (42).

the internal memo only reflects

(118) The Commission does not find this reply to be credible
since the notes clearly sum up what competitors were
planning to do, and it appears from the notes that they
were taken at a discussion.

(123) The Commission notes, however, that Messer must have
communicated with its competitors in order to discuss
its intentions as to the agreed price rise as the comment
representative referred to in recital 120
of AGA’s
indicates.

(119) There was an agreement in force in 1990/1991 between
at least AGA, Air Liquide, Air Products, Hoek Loos and
Messer about price increases of 6 % for gas and services
that were implemented between November 1990 and
February 1991:

(124)

In addition to the above, the Commission knows that,
possibly at the beginning of 1991, representatives of Air
Liquide, Air Products, Hoek Loos and AGA met and
discussed the success of the recent implementation of
the 6 % price increase for 1991:

(120) An AGA internal memo (in English) dated 27

November 1991 (40) concerning Messer states:

(125) A handwritten memo (in Dutch) on that meeting found

at Air Liquide (43) states amongst other things:

(cid:145)All gas companies incl. MG agreed on using bottom
prices (cid:151) rent and transport charges (see annex).
In reality MG uses prices that are far below these prices:
20(cid:151)30 %. This results in a lot of price decreases and/or
lost customers.
In the past years we created a service sensitive market.
Competitors like MG educate the market only to discuss
pricing.
MG also agreed on price increases of 6 % on gas and
services.
MG also agreed on a cease fire during November (cid:151)
December (cid:150) January and February, in order to be able
to have negotiations on price increases with customers.
All gas companies including AGA suffer a lot of the
uncontrolled way MG is behaving in the market.
I have two suggestions:
Discuss this with Stephan Messer
Prepare for retaliation on short term in Germany.(cid:146)

(cid:145)Price increase
[(cid:133)]: everything increased
transport costs
bulk BOC/Messer
cyl. Westf./Messer/AL
HL: about 6 % both bulk/cyl.
Index shows 6 % growth
AGA: only 20 % of the plan realised
index shows 6 % growth
(cid:133)
Drop charge bulk introduced by most (cid:133)(cid:146).

(126)

In reply to the Commission’s questions, Air Liquide
dated the document to (cid:145)around 1990(cid:146) and called them
(cid:145)personal notes of [(cid:133)], presumably made after a social
contact(cid:146) (44). The representative of Air Products in this

(38) File AL, p. 5612.
(39) File AL, non-confidential reply to the statement of objections,

p. 10, point 52.

(40) File AGA, pp. 867 and 877.

(41) File AGA p. 877.
(42) File MN, non-confidential reply to the statement of objections,

p. 17, point 61 and p. 18 point 62.

(43) File AL, p. 2096 (own translation).
(44) File AL, p. 5612 (own translation).

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L 84/19

meeting seems to have been the general manager [(cid:133)].

(127) Also at Air Liquide a handwritten note was found which
this company dates to early-1991 (45). It reads:
(cid:145)AGA
decreased level despite agreement to raise prices.(cid:146) (46)

and does not prove

author was only writing down what the others said (the
any
word (cid:145)apparently(cid:146))
commitment was made on Air Liquide’s part. Air
Liquide further argues that the date of mid-December
does not seem realistic either for a binding promise to
be made for implementation of a price increase by 1
January 1994 (50).

that

(128) At

the meeting of VFIG members on 16 December
1993, AGA, Air Liquide, Air Products, Hoek Loos and
Messer agreed on a price increase as from 1 January
1994. Indugas, BOC and NTG were absent.

(133) The Commission notes that Air Liquide attended the
its

above meeting and took careful notes of what
competitors said.

(129) A handwritten memo on that meeting in Dutch found

at Air Liquide (47) states among other things:

(134)

(cid:145)Price increase.
HL per 1/1’ 94 up by 4,5 %. (cid:151) Also MG and AP will
increase prices. Apparently agreement on price increase
per 1/1 but not on percentage or minimum level.(cid:146)

(130) This is confirmed in handwritten notes submitted by

AGA (48):

(cid:145)16.12.93 VFIG.
(cid:133)(cid:133)(cid:133)
Price increase:
H-L: Letter to customers begin January.(cid:146)

In reply to the statement of objections Messer argued
that taking part in a meeting is not in itself sufficient to
prove involvement in an agreement. It claims that the
handwritten note found at the premises of Air Liquide
refers only to the fact
that Messer was planning to
increase its prices (51). Messer made no statement on the
exact amount of the increase, and it is common practice
to increase prices at that time of year to adjust them to
inflation. Furthermore, the notes found at AGA and at
Air Products do not mention Messer.

(135) The Commission notes, however, that Messer attended
the above meeting and stated its intentions as regards
an element of
its commercial policy, namely price
increases.

(131)

It
in
is also confirmed by handwritten comments
English found in Air Products concerning that same
meeting:

(136) A first discussion on price increases for cylinder gases
regarding 1995 took place at the VFIG meeting held on
14 October 1994. This meeting was attended by AGA,
Air Liquide, Air Products, BOC, Hoek Loos, Hydrogas,
Messer, NTG and Westfalen:

(cid:145)AGA 15 Jan
H/L most of contracts 1 January
Longer period 1 February
Go negotiation
Already negotiating with customers
Major customers have been sold [told?]
All major customers + 4,5 %
Sometimes have to negotiate less
(cid:133)(cid:133)
Moratorium until April 1(cid:146) (49).

(137) Handwritten notes referring to this meeting were found

at AGA. They include the words:

(cid:145)Prices + 6 %
Bulk Contracts 4,5 % (HL index)
Energy + 6-8 %(cid:146) (52).

(132)

In reply to the statement of objections, Air Liquide
argued that the handwritten Air Liquide memo on the
VFIG meeting of 16 December 1993 shows that the

(138) AGA also submitted handwritten notes dated 17
October 1994 made by another employee concerning
that same meeting:

(45) File AL, p. 5612 (own translation).
(46) File AL, p. 2098 (own translation).
(47) File AL, pp. 2171 and 2172 (own translation).
(48) File AGA, p. 4964.
(49) File AP, pp. 1761 to 1762.

(50) File AL, non-confidential reply to the statement of objections,

pp. 10 and 11, point 53.

(51) File MN, non-confidential reply to the statement of objections,

p. 18, point 63.

(52) File AGA, p. 453.

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(cid:145)VFIG
Price increase
(cid:133)(cid:133)
Gas price cylinders + 6 % + rent and transp.
Bulk contracts + 4,5 %, Index formula?
(cid:133)(cid:133)
Moratorium: 1 December + 3-4 months(cid:146) (53).

(143)

In its reply to the statement of objections (58), BOC also
emphasised that its general manager, Mr Celis, did not
accept the 6 % figure proposed by the others at the
meeting referred to in recital 139 but only indicated
that its plans related to a 5 % increase.

(139) These price increases for cylinder gases for 1995 were
worked out in detail by, AGA, Air Liquide, Air Products,
BOC, Hoek Loos, Messer and Westfalen at the VFIG
meeting held on 18 November 1994:

(140) A handwritten table was submitted by AGA (54): The
table was written by sales manager [(cid:133)], who did not
himself participate in the meeting. His notes were taken
in an internal debriefing meeting on the agreements
reached. The table refers
to the VFIG meeting in
question and lists for Hoek Loos, AGA, Messer, Air
the
Liquide, Air
percentage of price increases for cylinder gases for 1995
as well as increases in rent and transportation charges.
The table also indicates a moratorium period of two
be
months
implemented. There is furthermore a reference to price
increases for liquid gases and tank rents.

Products, BOC and Westfalen

increases were

in which

those

to

(141) A second table, which was found in Air Products (55),
seems to refer to the same meeting, although not all
items in the two tables are identical. Air Products at first
believed that the table had been drawn up in a meeting
with competitors held in 1995, but later agreed that it
could be the result of
the VFIG meeting held in
November 1994 (56). This table again shows increases
for prices, transportation cost and rent, as well as the
moratorium period for implementing those increases,
for Hoek Loos, AGA, Messer, Westfalen, BOC, Air
Liquide and Air Products.

(142) The general manager of BOC for the Benelux,

in the
light of the evidence, voluntarily made the following
statement, which was
recorded in the investigation
report and signed by him:

(cid:145)Mr Celis recalled that at the end of two meetings (VFIG)
(cid:151) in late-1994 and 1995 (cid:151) the subject of prices in the
year
to his
surprise.(cid:146) (57)

ahead had been raised by others,

(53) File AGA, p. 4983.
(54) File AGA, p. 4990.
(55) File AP, p. 1755.
(56) File AP, p. 6336.
(57) File BOC, p. 3576.

(144) The Commission notes, however,

that BOC was
represented at the above meeting, its general manager
volunteered information on BOC’s planned price
increases and at no time distanced himself
from the
discussions relating to an agreement on a price increase.
that Mr Celis was taken by surprise may
The fact
highlight the fact that his role was not a very active
one.

(145)

In its reply to the statement of objections, Westfalen
drew attention to the fact that it had never been an
active participant in these meetings and that it had not
been aware that such issues as price increases were
being discussed as these topics were not mentioned on
the agenda of the meetings (59).

(146) The Commission notes that Westfalen attended the
meeting referred to above and gave an indication to its
competitors as to its intentions regarding an element of
its commercial policy, namely price increases (60).

(147) Handwritten comments found at Messer on the agenda
of an internal meeting of directors held on 25 October
1994, i.e. before the VFIG meeting, state:
(cid:145)VFIG! Price
increase 95(cid:146) (61).
instructions were found at
Internal
Messer regarding a moratorium in combination with
price increases in January 1995 (62), and the report on
the first quarter of 1995 states that price increases were
implemented without major difficulties as of 1 January
1995 and adds: (cid:145)we have received more or less identical
news from our competitors(cid:146) (63).

(148) On 23 November 1995 AGA, Air Liquide, Air Products,
Hoek Loos and Messer met and came to a collusive
arrangement on price increases for the following year
1996.

(58) File BOC, non-confidential reply to the statement of objections,

p. 9.

(59) File WF, non-confidential reply to the statement of objections,

pp. 8 to 10, points 42 to 52.

(60) File AGA, p. 4990.
(61) File MG, p. 4786 (own translation).
(62) File MG, p. 4833 (own translation).
(63) File MG, p. 4782 (own translation).

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(149) A handwritten note found at Hoek Loos (64) and dated
increases by certain
indicates price

23 November
competitors from 1 January 1996:

(152) Although BOC is mentioned briefly in the report, this
to the Commission’s knowledge,

company did not,
participate in those Breda/Barendrecht meetings.

(cid:145)AP increases per 1/1/96 4,75 % gas
0,75 rent/month/cyl.
1,50 rent special gases cyl.
0,50 transport cylinder

AGA between 5 and 8 %
product rent?
freight?

MG large clients > 15 000 7,2 %
0,90 freight
0,02 rent
4 turnover groups 7,2 % and 15 % small clients freight
freight 0,90 and 2,50 per cylinder rent
0,01 and 0,05/cyl.

1st half December letter with price increase 1/10
fl. 12,50 (cid:82) fl. 15,00 MVT mentioned on invoice
Up to – fl. 5 000 (cid:151) minimum prices

AL 6-7,5 % product
freight interest
rent interest
(cid:133)
BOC would [to increase] prices by 5 %
(cid:133)(cid:146)

(150)

it was unable

In reply to the Commission’s questions Hoek Loos
stated that
the date,
participants and framework of this meeting and even
doubted whether it was a meeting report. It declared
that it might concern information received from its own
salesmen (65).

to indicate

(153) Hoek Loos, Air Products, Air Liquide, AGA and Messer
met in late-1996, possibly on 2 October 1996, and
came to a collusive arrangement on price increase for
cylinder gases for 1997:

(154) An undated and handwritten document found at Air
Products (66), which the company believes to have been
written in late-1996,
is another report on a meeting
between competitors. After a discussion on the market
between Hoek Loos, Air Products, Air Liquide and AGA,
the note concludes
the VFIG will declare the
following year (= 1997) the year of transportation and
that transport will be included in the index: + 0,2 to
0,3 %. The Commission believes that this refers to the
Hoek Loos index for bulk gases mentioned in previous
documents (67). For cylinder gases prices would increase
by 4,5 % between November and March. There is also a
reference to a 6 % to 8 % increase for Air Liquide.

that

increase

(155) Both the period November to March and the 6 % to 8 %
referred to above are also
general price
mentioned in a (cid:145)Proposal cylinder gases 1997(cid:146) dated 28
September 1996 found at Hoek Loos (68). The proposal
found at Hoek Loos matches in every respect
the
handwritten notes found at both Air Products (69) and
Messer (70).

(156)

In reply to the Commission’s request for information,
Hoek Loos claimed that this proposal, once adopted,
was to be supplied to its own sales force and was
therefore intended for internal use only (71).

(151) The

not

does

find Hoek

Commission

Loos’
interpretation credible. The very detailed information on
the future behaviour of competitors and the reference to
a letter which had not yet been sent, warrant
the
conclusion that the report concerns a meeting of AGA,
Air Liquide, Air Products, Hoek Loos and Messer. The
date shows that it was not a meeting on the fringes of a
VFIG meeting. The Commission believes that it was one
of several meetings which took place in 1995 to 1997
between AGA, Air Liquide, Air Products, Hoek Loos and
Messer
in Breda and Barendrecht. The Commission
notes in this context that 23 November 1995 is indeed
listed by both Air Products and AGA as the date of such
a meeting in Breda.

(64) File HL, pp. 2904 and 2905 (own translation).
(65) File HL, p. 5551.

(157)

In view of what is set out above, this statement is not
credible: the modified prices were indeed announced to
staff at Hoek Loos on 7 October 1996 (72) but there is
very strong evidence that they were also discussed with
this
competitors. The Commission
discussion took place in Breda on 2 October 1996.
That date was mentioned by Air Liquide, Air Products

believes

that

(66) File AP, pp. 1724 and 1725.
(67) File AGA, pp. 453 and 4983.
(68) File HL, p. 2653.
(69) File AP, pp. 1724 and 1725.
(70) File MG, p. 4834.
(71) File HL, p. 5549.
(72) File HL, p. 3532.

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and AGA (73) and falls between the date on which Hoek
Loos drafted its proposal and the date on which that
proposal was announced to its own staff.

3. ANNUAL MORATORIA

(a) Overview

(158) The same companies which met regularly from 1989
on and which agreed on annual price increases for their
existing customers, as set out in section C.2, also agreed
at those meetings to respect annual cease-fires lasting
several months for the purpose of
implementing the
agreed price increases. The Commission has evidence in
its files that
in
collusive arrangements concerning moratorium periods:
Hoek Loos, Air Products and AGA in the periods 1989
to 1991 and from 1993 to 1997, Air Liquide and
Messer in the periods 1990 to 1991 and 1993 to 1997
and Westfalen and BOC in the period 1994 to 1995.
The moratorium from 1 November 1996 to 1 March
1997 applied to both bulk and cylinder customers. The
earlier moratoria applied to cylinder customers only.

the following companies took part

(b) Cartel meetings and collusive contacts

(159) There was an agreement

in force on 24 November
1989 between Hoek Loos, AGA and Air Products on
price increases. In order to implement these increases
they also agreed on a moratorium for four to five
months.

(160) Recital 112 cites a (cid:145)confidential(cid:146)

internal memo in
English dated 24 November 1989 found at AGA
concerning a (cid:145)safety meeting(cid:146). It reads:

(cid:145)All participants agree upon price increase cylinder gases
of +/- 5 %.
HL 4,9 %, UC 5 %, AGA 5 %, AP 5 %.
This information will be passed on to AL by [(cid:133)] of HL.
We will ask AL for moratorium 4(cid:151)5 months. Starting
right from this moment.
Same applies for HL, AGA, UC, AP. Meaning we should
only deal with our own customers from now on.
((cid:133))
AFTER READING, PLEASE DESTROY.(cid:146) (74).

(161) That AGA put the moratorium into effect is shown by
the internal instructions it issued on 28 November 1989
(quoted in recital 114), to focus on implementing the
5 % price
and
explaining that competitors could be expected to do the
same. Were attacks by competitors nevertheless to lead
to price
should be
concessions,
reported to the management (75).

increase with existing

such concessions

customers

(162) An agreement was in force in 1990/1991 between at
least AGA, Air Liquide, Air Products, Hoek Loos and
Messer
for 1991 in
combination with price increases:

on a moratorium period

(163)

In recital 120 an AGA internal memo (in English) dated
27 November 1991 (76) concerning Messer was quoted,
which states:

(cid:145)All gas companies incl. MG agreed on using bottom
prices (cid:151) rent and transport charges (see annex).
In reality MG uses prices that are far below these prices:
20(cid:151)30 %.
This results in a lot of price decreases and/or lost
customers.
In the past years we created a service sensitive market.
Competitors like MG educate the market only to discuss
pricing.
MG also agreed on price increases of 6 % on gas and
services.
during
MG
November(cid:151)December(cid:151)January and February, in order
to be able to have negotiations on price increases with
customers.
All gas companies including AGA suffer a lot of the
uncontrolled way MG is behaving in the market.
I have two suggestions:
1. Discuss this with Stephan Messer
2. Prepare for retaliation on short term in Germany.(cid:146)

cease-fire

agreed

also

on

a

(164)

In its reply to the statement of objections Messer argued
that the AGA memo of 27 November 1991 shows that
AGA thought Messer did not live by the (cid:145)agreements(cid:146)
and strongly denied having been part in any agreement
at all (77).

(73) File AL, pp. 5642 and 5643; AP, p. 5965 and AGA, pp. 5169

and 5170.

(74) File AGA, p. 782.

(75) File AGA, p. 5193; see also p. 5196.
(76) File AGA, pp. 867 and 877.
(77) File MN, non-confidential reply to the statement of objections,

p. 19, point 68.

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(165) The Commission notes however that it must have been
Messer’s stated intention at the time to implement the
moratorium, even if it might not have implemented it.

(166) There was an agreement between AGA, Air Liquide, Air
Products, Hoek Loos, and Messer on a moratorium
period in December 1993 until 1 April 1994 in
connection with price increases:

(167) Handwritten comments in English already quoted in

recital 131 found in Air Products state:

(cid:145)AGA 15 Jan
H/L most of contracts 1 January
Longer period 1 February
Go negotiation
Already negotiating with customers
Major customers have been sold [told?]
All major customers + 4,5 %
Sometimes have to negotiate less
(cid:133)(cid:133)
Moratorium until April 1(cid:146) (78).

(168) At the VFIG meetings of October and November 1994
price increases for 1995 were discussed and agreed
between AGA, Hoek Loos, Air Liquide, Air Products,
Messer, BOC and Westfalen in combination with a
moratorium from 1 December 1994 to 31 January
1995:

(169) AGA

submitted

17
handwritten
October1994 (already quoted in recital 138) made by
another employee concerning the October meeting:

dated

notes

(cid:145)VFIG
Price increase
(cid:133)(cid:133)
Gas price cylinders + 6 % + rent and transp.
Bulk contracts + 4,5 %, Index formula?
(cid:133)(cid:133)
Moratorium: 1 December + 3(cid:151)4 months(cid:146) (79).

the percentage price increases for cylinder gases and
increases in rent and transportation charges. The table
also indicates a moratorium period of two months from
1 December 1994 to 31 January 1995 in which those
increases were to be implemented.

(171) A second table (quoted in recital 141) (81) found at Air
Products seems to refer to the same meeting, although
not all items in the two tables are identical. Air Products
at first believed that the table had been drawn up in a
meeting with competitors in 1995 but later agreed that
it could be the result of
the VFIG meeting held in
November 1994 (82). This table shows increases for
prices,
transportation cost and rent, as well as the
moratorium period for implementing those increases,
for Hoek Loos, AGA, Messer, Westfalen, BOC, Air
Liquide and Air Products.

(172)

that

In its reply to the statement of objections, Westfalen
show that
the Commission did not
argues
Westfalen by its own action entered into an agreement
with its competitors on a moratorium period at the end
of 1994 at the two VFIG meetings. Westfalen adds that
there is no evidence of any behaviour that can be
qualified as an agreement or a concerted practice (83).

(173) The Commission, however, notes that Westfalen was
present at the said meeting with competitors and took
part
in the discussion on price increases and the
moratorium.

(174) Hoek Loos did in fact

implement

the moratorium

period from 1 December 1994 until 31 January 1995:

(175) The annual moratorium is also referred to in an internal
meeting report of 15 December 1994 found at Hoek
Loos, which records
the following in reply to a
question:

(170) AGA submitted a handwritten table concerning the
VFIG meeting on 18 November 1994 (already quoted in
recital 140) (80): the table was written by sales manager
[(cid:133)], who did not himself participate in the meeting. His
notes were taken at an internal debriefing meeting on
the agreements reached. The table refers to the VFIG
meeting in question and lists for Hoek Loos, AGA,
Messer, Air Liquide, Air Products, BOC, and Westfalen

(78) File AP, pp. 1761 and 1762.
(79) File AGA, p. 4983.
(80) File AGA, p. 4990.

(cid:145)According to rumours a cease-fire will take place per
1.12.1994 between the various suppliers of industrial
In December and
gases. HL will
January we will not approach customers of other
suppliers. If someone attacks us, we will of course strike
back.(cid:146) (84)

increase its prices.

(81) File AP, p. 1755.
(82) File AP, p. 6336.
(83) File WF, non-confidential reply to the statement of objections,

pp. 10 and 11, points 53 to 60.
(84) File HL, p. 2984 (own translation).

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(176) Messer also implemented the moratorium period from 1

December 1994 until 31 January 1995:

which would seem to indicate that
the moratorium
period 1996/1997 would not only apply to cylinder
customers but to bulk customers as well.

(177)

Internal instructions were found in Messer regarding a
moratorium in combination with price increases in
January 1995:

information: Price increase market

(cid:145)Important
6 %.
Moratorium December 1994 and January 1995.(cid:146) (85)

leader:

to price

the VFIG and

(178) A number of documents found at Messer also contain
references
a
increases,
moratorium. These documents include a handwritten
report on the directors’ meeting of 22 November, which
reads (cid:145)VFIG (cid:151) DP, moratorium, (cid:147)pressure(cid:148)(cid:146) (86), and a
note dated 26 January, which mentions (cid:145)moratorium(cid:146) +
/-? (87). Messer’s report
for the first quarter of 1995
states that price increases were implemented without
major difficulties as from 1 January 1995 and adds: (cid:145)we
have received more or less identical news from our
competitors(cid:146) (88).

(184) The Commission takes note of Messer’s claim that this
reference had nothing to do with a moratorium period
and that the note was written in a meeting with Hoek
Loos only (93).

(185) However, handwritten notes found at Air Products and
made in a meeting with competitors which Air Products
dates to the end of 1996 also state:

(cid:145)- stay away from each others’ customers (cid:151) bulk
1 Nov(cid:151)1 March(cid:146) (94).

(186)

In Air Liquide the minutes of an internal meeting of 8
November 1996 state with regard to price increases:
(cid:145)focus on higher prices with existing customers(cid:146) (95).

(179) Air Liquide also implemented the moratorium period

from 1 December 1994 to 31 January 1995:

(187)

(180) Air Liquide submitted an internal note regarding the
price increases for 1995 which instructs salesmen to
focus on their own clients (with the effect of respecting
the moratorium):
(cid:145)In the period 1 December till 31
January we will focus on the yearly agreements(cid:146) (gericht
bezig houden met de jaarafspraken) (89).

(181) A moratorium was agreed from November 1996 to
March 1997 between AGA, Air Liquide, Air Products,
Hoek Loos and Messer. This agreement applies not only
to cylinder customers but to bulk customers too:

In its reply to the statement of objections, Air Liquide
argues that the statement in the minutes of an internal
Air Liquide meeting that Air Liquide would (cid:145)focus on
higher prices with existing customers(cid:146) is no more than
an example of the behaviour of a supplier in a saturated
market, weighing the advantages and disadvantages of
(cid:145)price level(cid:146) versus (cid:145)market share(cid:146). This internal memo
shows no more than autonomous behaviour (96).

(188) The Commission notes, however,

that it is clear the
different documents referred to at recitals 182 to 185
above
above
companies regarding the agreement on a moratorium
refer to the same period of time.

the premises of

and found at

the

(182) References to a moratorium to implement
price increase were found in Messer:
1 March(cid:146) (90).

the 1997
(cid:145)mort. 1 Nov(cid:151)

4. FIXING MINIMUM PRICES

(183)

In different handwritten notes found in Messer (91) and
dating from the same period (92) reference is made to
Hoek Loos’s proposal to increase prices, as well as to
the period from 1 November till 1 March. This note
also contains the words (cid:145)bulk customers: stay away!(cid:146),

(a) Overview

(85) File MG, p. 4833 (own translation).
(86) File MG, p. 4785 (own translation).
(87) File MG, p. 4783.
(88) File MG, p. 4782 (own translation).
(89) File AL, p. 2525 (own translation).
(90) File MG, p. 4836.
(91) File MG, p. 4834 (own translation).
(92) File MG, p. 5268.

(189) Successive lists of minimum prices for cylinder gases
were agreed between competitors. In 1989/1990 a list

(93) File MG, p. 5268.
(94) File AP, p. 1725.
(95) File AL, p. 2571.
(96) File AL, non-confidential reply to the statement of objections,

p. 12, point 61.

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of minimum prices for liquid gases was agreed upon
between Air Liquide, AGA, Hoek Loos and Air Products.
In 1990/1991 and 1994 to 1997 lists of minimum
prices for cylinder gases were agreed between Hoek
Loos, Air Liquide, Air Products and AGA. Messer joined
them in the period 1994 to 1997 and Westfalen in
1994/1995. The main purpose of the lists was to set
thresholds when competing for the same client.

(195) At Hoek Loos a letter was found addressed to Messer
Griesheim in Frankfurt, written in English, signed by the
chief executive officer and dated and sent by fax on 18
October 1990, it reads:

(b) Cartel meetings and collusive contacts

(190) Minimum prices for liquid gases were the object of
collusive contacts from end 1989 or beginning 1990
between Hoek Loos, AGA, Air Products and Air Liquide.

(191) A (cid:145)confidential(cid:146) AGA internal memo of 24 November
1989 concerning a (cid:145)safety meeting(cid:146) (97) has already been
quoted in recitals 112 and 160. It includes the sentence:

(cid:145)All shall work out proposal for liquid price list.
Meeting is set for January 12th for final discussion and
consensus on such a price list.(cid:146)

(192) This price list was found in the investigation at Air
Liquide (98), printed on AGA headed paper and entitled
(cid:145)Bulkgassen (cid:151) prijsstaffel gegevens(cid:146) (bulk gases (cid:151) price
scales). For two items the list contains not a price but
the words (in Dutch) (cid:145)Proposal Hoek Loos will follow(cid:146).

The list concerns the following gases: nitrogen, oxygen,
argon and carbon dioxide, with different prices
depending on the sector of use. The list also contains a
price mechanism for the rent of
tanks (see section
C.6(e)).

(193) An AGA internal memo dated 26 June 1990 also
mentioned the possibility of applying bottom prices for
liquid gases. Such bottom prices would (cid:145)only be
applicable in those cases where only the (cid:147)old 5(cid:148)
compete(cid:146) (99).

(194)

In October 1990 Hoek Loos, Air Liquide, AGA and Air
Products came to an agreement on a system of bottom
prices for cylinder gases:

accept

in our

(cid:145)Dear Mr. Willheim,
As per telephone conversation I herewith send you our
pricing system for the coming six month’s [sic].
All parties
should
[sic,
country
presumably be (cid:147)except(cid:148)] MG have confirmed that they
will stick absolutely to the bottom prices as mentioned
in the attached list.
For liquid supplies we will introduce a drop charge as
explained in the pricelist. We should appreciate it if you
would discuss this price system with Mr. Messer and let
us know if MG is prepared to follow this quide line [sic
(cid:147)guideline(cid:148)].
If there are any questions don’t hesitate to contact me.
Kind regards,
J.P. Jager Bruining (100)(cid:146)

(196) Attached is an untitled and undated document in Dutch,
(cid:145)Price list per
It contains prices for
the following gases (about 10
acetylene,
argon, oxygen,
It also contains prices of

as well as a list entitled (in Dutch)
1.10.1990 for cylinder gases.(cid:146)
varying quantities of
prices
tetrene (101), and nitrogen.
supply conditions: rent of cylinders and transport cost.

every

gas):

for

(197) The untitled and undated document reads as follows:

(cid:145)From today on certain agreements are in force.
and conditions below the
1. No prices

attached

2.

minimum price list will be agreed with customers.
In the course of 1990 customers’ prices and
conditions which are below this level will be raised
to this level or higher if the percentage in point 4
supersedes this level.

3. Per 1 January 1991 no prices and conditions below

the attached minimum prices are possible.

4. Per 1 January 1991 customers’ prices and conditions
which are higher than the bottom price level will be
raised by 5(cid:151)7 %.

5. Running

offers which
[conditions] above are no longer valid.

not

do

respect

the

(97) File AGA, p. 782.
(98) File AL, pp. 2150 to 2151 (own translation).
(99) File AGA, pp. 1003 to 1005.

(100) File HL, pp. 2655 to 2660 (partly own translation).
(101) Tetrene is a welding gas sold by AL, AGA and others.

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6. For supply of bulk gases and from today on: for
new customers a drop charge of fl. 34,00 (cid:151) 36,00.
For existing customers this drop charge will be
introduced in October 1990. This drop charge does
not apply to so-called horticultural carbon dioxide.
(cid:133)
Motivation drop charge: queues, energy, driving
time legislation. Motivation price level: enormous
erosion
unacceptable,
especially in view of developments of cost.
the
For
confronted will take the initiative for contact.
Attached: price list.(cid:146)

[supplier who is]

shared clients

become

prices

first

has

of

(198) Copies of the same price list were found at the premises
of AGA (102), Air Liquide (103) and Air Products (104).
At
the latter two companies it was found with the
untitled and undated covering document quoted in
recital 197.

(199) The Commission also has evidence that AGA used the
agreed minimum prices for cylinder gases in 1991 to
measure the behaviour of competitors quoting prices to
AGA customers (105). In a confidential fax from AGA to
Air Liquide dated 31 October 1990 AGA listed a
number of cases where salesmen from Air Liquide had
allegedly
below the
minimum (106).

offered AGA clients prices

(200) Representatives of Hoek Loos, Air Products, AGA and
Air Liquide met on 22 November 1990 and discussed,
among other things, an increase in minimum prices:

(201) Recital 116 quotes internal notes dated 22 November
1990 found at Air Liquide (107). Among other items
they discuss (cid:145)minimum prices(cid:146):

memo, two copies of which were found at AGA, has
already been quoted in recital 120. It states that:

(cid:145)All gascompanies incl. MG agreed on using bottom
prices (cid:151) rent and transportcharges (see annex).
In reality MG uses prices that are far below these prices:
20(cid:151)30 %.
This results in a lot of price decreases and/or lost
customers.
In the past years we created a service sensitive market.
Competitors like MG educate the market only to discuss
pricing.
(cid:133)
All gascompanies including AGA suffer a lot of
uncontrolled way MG is behaving in the market.
I have two suggestions:
Discuss this with Stephan Messer
Prepare for retaliation on short term in Germany.(cid:146)

the

(203) Handwritten comments on one of the copies of this

memo state:

(cid:145)1) Talk to Messer [general manager of MG] to respect
bottom prices. 2) If no joy talk to Wielands with [(cid:133)]
[AGA Gas GmbH]. Warn of our impending attack. 3)
After 2 weeks max attack.(cid:146)

(204) This document also shows that failure to comply with
the agreements concerning bottom prices could lead to
retaliation and retaliatory measures were not necessarily
confined to the Netherlands.

(cid:145)1. Bulk (cid:151) drop charge
2. Minimum prices (cid:151) increase
3. Price increase 1.1.91 (5 to 7)
(cid:133)(cid:146).

(205) At

the VFIG meetings of March and October 1994
(cid:145)price scales(cid:146) and (cid:145)minimum prices(cid:146) for cylinder gases for
small customers were discussed with a view to an
agreement at
least between AGA, Air Liquide, Hoek
Loos, Air Products, Westfalen and Messer.

(202) Confirmation that an agreement about

the use of
bottom prices was in force in 1990/91 between at least
AGA, Air Liquide, Air Products, Hoek Loos, Messer can
be found in an internal memo (in English) concerning
Messer dated 27 November 1991 (108). This internal

(102) File AGA, pp. 868 to 870.
(103) File AL, pp. 2394 to 2397.
(104) File AP, pp. 1559 to 1562.
(105) File AGA, p. 887.
(106) File AL, pp. 2116 and 2117.
(107) File AL, p. 2112 (own translation).
(108) File AGA, pp. 867 and 877.

(206) Handwritten notes found at AGA (109) mention that
(cid:145)price scales(cid:146) were again discussed in the VFIG meetings
of March and October 1994 and that
in the latter
meeting Hoek Loos presented a price scale for cylinder
gases. Handwritten notes dated 17 October 1994 made
by a different person in AGA and submitted by that
company confirm that (cid:145)min. prices(cid:146) were discussed at
the October meeting (110).

(109) File AGA, pp. 453 and 454.
(110) File AGA, p. 4983.

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the fringes of

(207) According to explanations provided by AGA (111) the
list of price scales for small cylinder customers was
presented by Hoek Loos at
the VFIG
meeting held in October 1994 referred to above. In its
reply to the statement of objections, AGA emphasises
that this list of price scales for 1994 (cid:145)is not asserted, let
alone substantiated to have been agreed upon(cid:146) (112). The
Commission notes, however, that the list proposed by
Hoek Loos was also found at
the premises of three
companies.

(212)

the infringement. AGA acknowledges (120) nevertheless
that it introduced the agreed minimum prices for small
customers as from 1 July 1995.

In its reply to the statement of objections, Westfalen
states that it does not know how the list came into its
possession. It claims that it is extremely likely that it
was handed out to Westfalen at the VFIG meeting of 14
October 1994 but
imply
Westfalen actually agreed on the prices mentioned on
the list. Westfalen also claims that it believes that its
the VFIG
uncooperative attitude in the context of
meetings led the larger undertakings to meet outside the
VFIG circuit (121).

fact does not

that

this

(213) The Commission has evidence that meetings were
indeed organised outside the VFIG circuit later on and
that collusive arrangements on minimum prices for
cylinder gases for small customers were made at Breda
and Barendrecht from early-1995 until 1997 between
AGA, Air Liquide, Air Products, Hoek Loos and Messer.

(214)

In reply to the Commission’s questions AGA stated the
following:

(cid:145)For early in 1995 a meeting was called, outside the
VFIG, for the purpose of approving minimum prices.
[(cid:133)a senior representative of AGA] attended, and the
meeting became his first of several meetings, in a more
restricted group, at Breda. Present were Hoek Loos, Air
Liquide, Air Products and Messer [and AGA]. Indugas
may have been invited, but not been there. At
that
meeting, minimum prices for small customers were in
fact agreed.(cid:146) (122)

(215) AGA adds that there were two to three meetings a year
in Breda,
later in Barendrecht, depending on the year.
There was no agenda and there were few notes. AGA
believes that Indugas or Praxair (which they view as one
company) participated once only, but that Indugas was
always invited by the company organising the meetings.
AGA also adds that its overall impression was that the
agreed minimum prices were not accepted in the
the
did
market

not work. At

therefore

and

(120) File AGA, p. 7013.
(121) File WF, non-confidential reply to the statement of objections,

p. 13, points 76 and 77.
(122) File AGA, pp. 7011 and 7012.

found

copy was

(208) One copy was found at Westfalen (113) in a file marked
at Air
VFIG 1995. Another
Liquide (114) in a file marked VFIG 1994. A third copy
was found at Messer (115). All three feature an identical
printed minimum price list dated October 1994 and
entitled (cid:145)price list for small cylinder customers(cid:146). The list
found at Messer also features a handwritten price list
that was added in 1996 (see recital 234). The fact that
these companies kept this proposal in their files for a
number of years means that the list was important to
them.

(209) That there was an agreement in 1995 is also confirmed
by the fact that the internal
list of minimum prices
found at Air Liquide dated 10 March 1995 (116)
matches the minimum prices implemented by AGA on
1 July 1995 (117).

(210)

fact

to the

In its reply to the statement of objections, Air Liquide
for 1995
that
points
than the
mentioned on its
internal
minimum prices also mentioned on that list.
In this
that its
regard, Air Liquide also claims that the fact
their intentions
competitors wanted to inform it of
cannot be held against it (118).

the objectives
list are lower

(211) AGA points out,

that

in its
the

reply to its
small

statement of
objections (119),
initiative
relates to one segment of the cylinder gases market only
and therefore differs from other attempts to set bottom
prices. Since small customers were only a limited part of
AGA’s business, this considerably reduces the scope of

customers

(111) File AGA, pp. 7011 and 7012.
(112) File AGA, non-confidential reply to the statement of objections,

p. 12.

(113) File WF, p. 5224.
(114) File AL, p. 2183.
(115) File MG, p. 4779 (own translation).
(116) File AL, p. 2348.
(117) File AGA, pp. 369 and 370.
(118) File AL, non-confidential reply to the statement of objections,

p. 14, points 69 and 70.

(119) File AGA, non-confidential reply to the statement of objections,

p. 13.

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Commission’s request, AGA provided a list of meeting
dates based on agendas, expense accounts and other
available data (123).

(216) Air Products

confirmed to the Commission that
discussions
than VFIG
took place on other dates
meetings, which could involve preparation or follow-up
of VFIG meetings:

(220) Air Liquide confirmed that

it had been invited to
in
participate in meetings at Breda and Barendrecht
1995 to 1997. Air Liquide itself never organised such
meetings. Air Liquide provided names of
its senior
managers who participated in such meetings in 1996
and 1997, as well as the dates of those meetings. No
data was available on 1995 because the manager then
responsible had left the company. Air Liquide stated
that the meetings in question were informal, without an
agenda or minutes. According to Air Liquide, general
questions were discussed regarding developments on the
market and in the economy (127).

(cid:145)To the best of AP recollection, informal meetings where
discussions of the last kind occurred took place two to
three times a year. Attending these meetings, on a more
or less regular basis, were, at least in the most recent
years, representatives of AP, Hoek Loos, AGA, Messer
Griesheim and Air Liquide. There was no formal
agenda, matters discussed reflected the issues with
which the industry was confronted and included topics
like general evolution of the market, prices development
and costs in the industry.(cid:146)

According to Air Products, such meetings took place in
Breda in the period 1995 to 1997. A list of meeting
dates was provided (124).

(217)

Indugas confirmed that

Indugas was also questioned on the meetings held in
its
Breda and Barendrecht.
representative in VFIG meetings had been orally invited
to attend such meetings, but that he had never done so.
Indugas also stated that
it had been aware that
minimum prices were being discussed, but that it had
never been present at such discussions and hence did
not know whether such minimum prices had indeed
been decided (125).

(218) Hoek Loos was unable to confirm its participation in
meetings with competitors held at Breda or Barendrecht.
Neither the agendas nor the expense accounts of the
responsible managers contained any useful information.

the (cid:145)Mirabelle(cid:146) restaurant

(219) Messer did confirm its participation in meetings with
competitors at
in Breda in
1995 to 1997. Messer also provided the names of the
senior managers of AGA, Air Liquide, Air Products,
Hoek Loos and Messer who regularly participated in
those meetings. According to Messer, trends in cost and
prices of gases were discussed in those meetings, but
Messer
it had not participated in
agreements on prices. Messer was unable to provide a
list of meeting dates (126).

claimed that

(123) File AGA, pp. 5169 and 5170.
(124) File AP, pp. 6333 and 5965.
(125) File Indugas, p. 5717.
(126) File MG, p. 5280.

(221) Table 6 in recital 108 lists the dates of meetings of
AGA, Air Liquide, Air Products, Hoek Loos and Messer
based on the data and recollections of those companies.
the dates indicated
The differences between some of
may be explained by the fact
in
the (cid:145)Mirabelle(cid:146)
Breda is a popular place for all kinds of meetings and
well situated for Dutch businessmen on their way to or
from Belgium. Dates mentioned by two or
three
companies are 23 November 1995, 5 June 1996, 2
October 1996, 19 March 1997, 20 June 1997 and 8
July 1997.

that

(222) Most of

the companies

that participated in those
meetings stated that only general discussions took place.
AGA and Air Products, however, acknowledge that
minimum prices were a topic. Evidence shows that lists
of minimum prices were indeed discussed and agreed
upon between AGA, Air Liquide, Air Products, Hoek
Loos and Messer.

(223) There were also a number of bilateral contacts between
suppliers of industrial gases,
in which price levels of
companies were compared. One example is a meeting
on 16 June 1995, at which representatives of AGA and
standard
Messer, compared and exchanged lists of
prices (128).

(224) The Commission has evidence that minimum prices for
cylinder gases for small customers were agreed upon
between AGA, Hoek Loos, Air Products, Air Liquide and
Messer for 1996 and 1997.

(127) File AL, pp. 5642 and 5643.
(128) File MG, pp. 7247, 7248 and 4806 to 4812.

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(225)

Identical
lists of minimum prices for 1996 and 1997
found at Air Products (129), AGA (130)
and
were
Messer (131). The lists indicate printed minimum prices
for cylinder gases applicable in 1996, as well as
handwritten minimum prices for 1997; the handwriting
is different, the updated prices are identical.

(232) The Commission has further evidence in its files of the
existence of agreements on minimum prices for small
customers between AGA, Hoek Loos, Air Products, Air
Liquide and Messer for 1996 and 1997 and which was
communicated to Westfalen in 1997.

(226) The Commission draws

the

conclusion that

this
updating of agreed price lists took place in a meeting
between competitors. The Commission notes in this
context that someone has written on the Air Products
list (cid:145)AL no demolishers(cid:146) (geen slopers) and (cid:145)HL nothing
on paper(cid:146) (niets op papier). This would seem to indicate
that Air Liquide warned against undercutting these
bottom prices, and Hoek Loos was anxious about not
leaving written traces of the agreement.

(227) According to AGA,

the list was handed out

in the
autumn of 1996 at a meeting with Hoek Loos, Air
Products, Air Liquide and Messer (cid:145)with a view to raising
the minimum prices
the
following year(cid:146) (132).

small customers

for

for

(233) The same minimum prices listed for 1996 were found
in Hoek Loos on a printed proposal entitled (cid:145)Proposal
Cylinder Gases 1997(cid:146) (138). The list also carries the
proposal to raise the minimum charge for the cost of
freight from NLG 10,00 to NLG 11,25. This proposal
was in fact adopted according to the handwritten notes
found in Air Products, AGA and Messer referred to
above at recital 225. Hoek Loos’ explanation that this
was just an internal document (139)
is therefore not
credible.
the
bottom prices agreed with competitors were in fact
passed on to the salesmen of this company.

Its internal use furthermore shows that

(228) The Commission notes that a meeting of the companies
in question took place on 2 October 1996, as depicted
in Table 6 at recital 108.

Loos (140) was

(234) The printed list of minimum prices for 1996 found in
in
also
Hoek
handwritten form on the printed (cid:145)price list for small
cylinder customers(cid:146) dated October 1994 already referred
to in recital 208 (141).

in Messer

found

a

of

(229) Air Products told the Commission that it had received
the list from AGA probably at the end of 1996 (cid:145)in the
framework
price
discussion
increases(cid:146) (133). Air Products believes that handwritten
notes in the Commission’s file were made at the same
meeting (134), and the Commission is of the opinion
that handwritten notes found in Messer were also made
at
the (cid:145)Mirabelle(cid:146)
in Breda (135), presumably on 2 October
restaurant
1996 as referred to at recital 228.

that meeting, which took place at

concerning

(230) AGA itself included the minimum prices for 1996 and
internal pricing policy note dated 30

1997 in its
October 1996 (136).

(231) Air Liquide also implemented the minimum prices for
1997. At Air Liquide the minimum prices for 1997
referred to above were included as plans for 1997 in
the minutes of
its cylinder group meeting of 8
November 1996; only for CO2 did Air Liquide plan to
apply a higher price (137).

(129) File AP, p. 1723.
(130) File AGA, p. 292.
(131) File MG, p. 4835.
(132) File AGA, p. 6995.
(133) File AP, p. 5883.
(134) File AP, pp. 1724, 1725 and 5884.
(135) File MG, p. 4834.
(136) File AGA, p. 348.
(137) File AL, p. 2572.

(235) At Air Products (142) an undated list of minimum prices
found printed on a small card is identical to a list found
on a card at Hoek Loos (143). Air Products stated that
the document was a Hoek Loos price list and that the
list took the form of a plastic wallet card to be used by
the sales force of Hoek Loos. Air Products had obtained
this card from Hoek Loos during a meeting with
competitors. Air Products dates the card to late-1996 or
early-1997 (144).

(236) Some of

the minimum prices agreed between Hoek
Loos, AGA, Air Liquide, Air Products and Messer were
communicated to Westfalen during a bilateral meeting.

(237)

In a report on a meeting between Hoek Loos, Westfalen
and Westfalen’s mother company Westfalen Gase AG
(cid:145)for small
it
held on 27 March 1997,

is noted that

(138) File HL, p. 2653.
(139) File HL, p. 5549.
(140) File HL, p. 2653.
(141) File MG, p. 4779 (own translation).
(142) File AP, p. 1820.
(143) File HL, p. 2906.
(144) File AP, p. 5886.

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customers one should for O2 not go below fl. 2,25
p/m3 and for acetylene not below fl. 12,00. Rent fl.
0,25(cid:146) (145).

(242) The 1990 list of minimum prices for cylinder gases
described in recitals 196 and 197 (147)
included a
minimum transportation cost of NLG 10,00 for direct
deliveries by the gas company and NLG 15,00 for
deliveries through a retailing depot.

(238)

In its reply to the statement of objections, Westfalen
argued that the report on the visit by [(cid:133)] and especially
heading 3 of
(quoted in recital 237)
mentions prices, but they are not the prices Westfalen
implemented or was
supposed to implement. They
merely refer to Hoek Loos’ prices (146).

the document

(239) The Commission takes the view, however,

that

the
language used in the report seems to imply that both
parties are concerned by the discussion and does not
just refer to Hoek Loos’ policy. Furthermore it would be
odd for Hoek Loos’ director to take it upon himself to
visit Westfalen’s headquarters simply to expose his own
company’s pricing policy, especially as Hoek Loos had
on several occasions been the company behind the
proposals on minimum prices made to the other
competitors (see recitals 195, 198, 206 and 207 above
for example). It therefore seems more likely that Hoek
Loos went to Westfalen’s headquarters with a view to
inform that company of the agreement reached between
the Commission
the other competitors. Nevertheless,
will not draw any conclusions
about Westfalen’s
behaviour on this point.

5. FIXING OTHER TRADING CONDITIONS

(a) Cylinder transport charges

(i) Overview

(240) Minimum transport charges for cylinder gases were first
agreed in 1990 between Hoek Loos, Air Products, Air
Liquide and AGA. In 1994 Air Products, Air Liquide,
AGA, Hoek Loos and BOC agreed to apply a minimum
transport charge of NLG 10,00. Messer
joined this
in 1996. An agreement on minimum
agreement
transport charges was still
in force in 1997 between
AGA, Hoek Loos, Air Products, Air Liquide and Messer.

(ii) Cartel meetings and collusive contacts

(241) An agreement on transport charges for cylinder gases
was in force on 18 October 1990 between Hoek Loos,
Air Liquide, AGA and Air Products.

(145) File WF, p. 7625 (own translation).
(146) File WF, non-confidential reply to the statement of objections,

p. 13, point 78.

(243) The minimum charge for transportation came up at a
bilateral meeting between Messer and AGA on 15
March 1993. According to a Messer document, Messer’s
strategy is to increase its market shares. In doing so it
would, however, in its tactics, respect certain minimum
conditions, such as not supplying rent-free or without
transportation cost (148). This document also mentions a
minimum daily rent of NLG 0,25 and a minimum
transportation cost of NLG 10,00.

(244) Minimum transportation charges for cylinder gases were
agreed on 23 June 1994 between AGA, Air Products,
Air Liquide, Hoek Loos and BOC:

(245) According to handwritten notes found in AGA (149) it
was decided at the VFIG meeting held on 23 June 1994
to fix the minimum transportation cost at NLG 10,00
for cylinder gases. According to these notes Messer did
not accept this.

(246) Other handwritten notes submitted by AGA (150), which
concern the same meeting, mention that the minimum
transportation price applies regardless of the means of
transport and that:
(cid:145)MG has reserved to apply lower
transport prices because of wish for increased market
share. All others have accepted, also WF and BOC.(cid:146)

(247) Concerning Westfalen the Commission notes that the
handwritten minutes concerning the VFIG meeting of
23 June 1994 submitted by AGA, referred to above do
mention that Westfalen had accepted the NLG 10,00.
However, Westfalen was not present at that meeting.
According to handwritten notes made by the same
person concerning the following VFIG meeting held on
14 October 1994, which was attended by Westfalen,
the latter company claimed to be unaware of
the
agreement on transportation cost:
(cid:145)WF was not
informed(cid:146)? Not accepted?? (151). This is also reflected in
other internal notes found at AGA concerning the same
meeting (152).

(147) File HL, pp. 2655 to 2660 (partly own translation).
(148) File MG, pp. 4814 and 4815 (own translation).
(149) File AGA, p. 453.
(150) File AGA, p. 4977.
(151) File AGA, p. 4983.
(152) File AGA, p. 453.

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(248)

In its reply to the statement of objections, BOC argued
the meeting on 23 June 1994 (all others have
that
accepted, also WF and BOC) was its first ever VFIG
meeting. At that meeting its representative confirmed
that BOC was charging NLG 10,00 per cylinder at the
time, not realising that the matter was being raised in
the context of possible minimum charges for the future.
This
subjectively
interpreted by the AGA representative as an (cid:145)agreement(cid:146)
to apply this amount as a minimum (153).

confirmation may

been

have

(249) Air Liquide, Hoek Loos and AGA implemented this
agreement. The minimum price to be charged for
transportation was included in Air Liquide’s internal list
of minimum prices for 1995 (154). Hoek Loos also
included the agreed minimum freight cost of NLG
for
commercial
10,00
1994/1995 (155).

programme

its

in

staff,

to sales

instructions

(250) AGA too included the minimum freight charge of NLG
10,00 in an internal note dated 29 June 1995 (156) and
in its
in a paragraph
concerning new customers, dated 5 July 1995 (157). The
minimum charge is also referred to in handwritten
notes made concerning meetings on 19 August and 13
October 1994 (158). AGA points out that the report of
the meeting on 13 October 1994 includes the initials
therefore
(cid:145)[(cid:133)](cid:146), presumably
indicating a bilateral competitor contact on trading
conditions (159).

[(cid:133)] of Hoek

Loos,

(251) That

these minimum trading conditions were agreed
upon is also confirmed by the fact
individual
customers were discussed among competitors and that
retaliation was
threat. Handwritten
possible
documents submitted by AGA which relate to a bilateral
meeting between AGA and Air Products (represented by
[(cid:133)] and [(cid:133)]) on 11 July 1994 (160) state that:

that

a

(cid:145)[(cid:133)] has understood that we want a compensation for
GEP and Shell, but has not accepted this. He (cid:147)believed(cid:148)
that
this had been solved in accordance with our
agreement on minimum rent and transport and refers to

latest meeting in Utrecht(?) (161). He says that
if we
retaliate because of GEP and Shell, he will have to
retaliate against us again.(cid:146)

(252) Later, in 1996, Messer decided that it would also apply
the agreed minimum transport price of NLG 10,00.
According to the minutes of an internal meeting held
on 7 June 1996, Messer did so that day. It is noted in
the minutes that competitors will also be forced to
apply this price (162).

(253) Minimum transportation charges were agreed upon for
1996 and 1997 between AGA, Hoek Loos, Air
Products, Air Liquide and Messer.

(254) According

to

notes

handwritten

at Air
Products (163) and in Messer (164), which match a typed
there were
proposal
for
discussions
transportation cost to NLG 11,25 by the end of 1996.

the minimum price

at Hoek
raising

found
on

Loos (165),

found

(255) This was taken up in the identical

lists of minimum
prices for 1996 and 1997 found at Air Products (166),
AGA (167) and in Messer (168)
(quoted in recital 225
above).

(b) Cylinder rent

(i) Overview

(256)

In 1990 Hoek Loos, AGA, Air Liquide and Air Products
agreed to respect a minimum level for cylinder rent. In
1994 Hoek Loos, Air Products, AGA, Air Liquide,
Messer and BOC decided to apply a minimum daily rent
of NLG 0,25 for every cylinder. This agreement was
reconfirmed by Hoek Loos, AGA, Air Liquide, Air
Products and Messer in the following years and was still
in force
in 1997. This minimum rent was also
communicated to Westfalen in 1997.

(153) File BOC, non-confidential reply to the statement of objections,

pp. 15 and 16, points 2.26 and 2.27.

(154) File AL, pp. 2348 and 2360.
(155) File HL, p. 2907.
(156) File AGA, pp. 369 and 370.
(157) File AGA, p. 363.
(158) File AGA, p. 4980, 4982.
(159) File AGA, non-confidential reply to the statement of objections,

p. 6.

(160) File AGA, p. 4979 (own translation).

(161) Presumably the VFIG meeting of 23 June 1994, which took place
in Utrecht and at which minimum rent and transportation prices
were agreed.
(162) File MG, p. 4832.
(163) File AP, p. 1725.
(164) File MG, p. 4834.
(165) File HL, p. 2653.
(166) File AP, p. 1723.
(167) File AGA, p. 292.
(168) File MG, p. 4835.

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(ii) Cartel meetings and collusive contacts

(264)

(257) An agreement on a minimum rent for cylinders was in
force on 18 October 1990 between Hoek Loos, Air
Liquide, AGA and Air Products.

(258) The 1990 list of minimum prices for cylinder gases
already described in recital 196 and recital 242 (169)
prescribed a minimum rent of NLG 0,40 per cylinder
per day and NLG 0,80 in the case of packages. The list
did not allow for rent-free periods or cylinders.

(259) The agreement on a minimum daily rent for cylinders
came up again in 1993 in a discussion between AGA
and Messer on 15 March 1993 (170) (see in recital 243
above). Various matters were discussed,
including the
possibility of applying a minimum daily rent of NLG
0,25 for gas supplies in cylinders. The minutes of that
meeting also state that (cid:145)HL has abolished rent-free days(cid:146).

that

In its reply to the statement of objections (176), BOC
the AGA internal note makes no
points out
reference to any fixed rental charge by BOC’s name and
that the Air Products note (177) states (cid:145)0,25(cid:146), meaning
that Mr Celis, BOC’s then manager, was vague as
regards his company’s cylinder rent approach and that
there was not any agreement on implementation.

(265) The Commission notes that BOC was present at the said
meeting and volunteered to share some commercially
sensitive information with its competitors.

(266) An agreement on a minimum rent for cylinders was in
force on 9 January 1996 between Messer, AGA, Air
Liquide, Hoek Loos and Air Products.

(267) An internal note in Messer dated 9 January 1996 states:
(cid:145)regrettable to note that both AGA and AL do not stick
to the fl. 0,25(cid:146) (178).

(260) Minimum rent for cylinders were agreed upon on 23
June 1994 between AGA, Air Products, Air Liquide,
Hoek Loos, Messer and BOC.

(268) An agreement on a minimum rent for cylinders was in
force in 1997 between Messer, AGA, Air Liquide, Hoek
Loos and Air Products and communicated to Westfalen
that year:

(261)

It was decided at the VFIG meeting held on 23 June
1994 to fix the minimum rent per cylinder at NLG
0,25. The notes of AGA (171) specifically mention that
Messer accepted this and specify that NLG 0,25 would
be the minimum daily rent and that no rent-free days
would be granted.

(269)

In an internal meeting report dated 20 March 1997
found at Messer, someone claims that Messer is the only
one still calculating a minimum rent of NLG 0,25, to
which the general manager replies that this should not
be possible, save in the case of Westfalen and BOC (179).

(262) Hoek Loos and AGA also implemented this agreement.
Hoek Loos included the agreed minimum rent of NLG
0,25 in its commercial programme for 1994/95 (172).
Handwritten notes on discussions found in AGA and
dated 19 August 1994 and 13 October 1994 (173) refer
to the minimum rent.

(270) This reply shows that the larger companies AGA, Air
Liquide, Air Products, Hoek Loos and Messer had
reconfirmed that they would respect the minimum rent
of NLG 0,25.

(263) AGA also included the minimum rent in an internal
note dated 29 June 1995 (174) and in its instructions to
sales staff (in a paragraph concerning new customers)
dated 5 July 1995 (175).

(169) File HL, pp. 2655 to 2660 (partly own translation).
(170) File MG, pp. 4814 and 4815.
(171) File AGA, p. 453 and p. 4977.
(172) File HL, p. 2907.
(173) File AGA, pp. 4980 and 4982; see also recital 250.
(174) File AGA, pp. 369 and 370.
(175) File AGA, p. 363.

(271) As regards Westfalen’s involvement,

in a report on a
meeting between Hoek Loos, Westfalen and Westfalen’s
mother company Westfalen Gase AG, held on 27 March
1997 and already quoted in recital 237, it is noted that
(cid:145)for small customers one should for O2 not go below fl.
2,25 p/m3 and for acetylene not below fl. 12,00. Rent
fl. 0,25(cid:146) (180).

(176) File BOC, non-confidential reply to the statement of objections,

pp. 16 and 17.

(177) File AP, p. 1755.
(178) File MG, p. 7246.
(179) File MG, p. 7273.
(180) File WF, p. 7625 (own translation).

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(272)

reply to the

statement of objections (181),
In its
Westfalen argues that the underlying aim of this visit by
[(cid:133)] was to get acquainted and that the initiative for this
meeting came from [(cid:133)]. Westfalen denies having
agreed in 1997, or at any other time of the period of
investigation, on the application of a minimum level of
rent per day of NLG 0,25 per cylinder. It claims that
this is confirmed by the declaration made by the general
director of Messer, which was taken up in the internal
notes of Messer dated 20 March 1997 mentioned at
recital 269 (182). From this note it can be read that
Westfalen did not agree on the minimum level of rent
of NLG 0,25 per cylinder.

Loos

Hoek

between

(273) The Commission notes that the internal notes of Messer
referred to in recital 269 were dated before the bilateral
meeting
and Westfalen’
headquarters took place on 27 March 1997. It could
well be that Hoek Loos went to meet with Westfalen to
communicate what had been agreed with the others, as
already explained at recital 239 above. Furthermore, the
arguments mentioned in recital 239 regarding the above
bilateral meeting could be reiterated here. Nevertheless,
the Commission will not draw any conclusions about
Westfalen’s behaviour on this point.

(277) The existence of an agreement on a minimum rent for
cylinders in the years 1996 and 1997 is also confirmed
by the identical lists of minimum prices for 1996 and
1997 found at Air Products (186), AGA (187)
and
Messer (188), already quoted in recital 225, which also
specify a minimum rent of NLG 0,25.

(c) Bulk drop charge

(i) Overview

(278) Hoek Loos, AGA, Air Products and Air Liquide jointly
decided to introduce a drop charge of NLG 36,00 for
bulk deliveries in 1990. The drop charge has remained
an element of their trading conditions and has since
been adopted by other suppliers. The drop charge was
discussed again in 1993 when a proposal was made to
raise it.

(274) That there was an agreement on a minimum rent for
cylinders in force in 1997 between Messer, AGA, Air
Liquide, Hoek Loos and Air Products is also shown by
the following.

(279) Hoek Loos, Air Liquide, AGA and Air Products agreed

on a drop charge in October 1990.

(ii) Cartel meetings and collusive contacts

(275)

In an internal meeting report of Messer dated 19 June
1997, it is said under the title (cid:145)competition(cid:146):

(cid:145)In the last months several competitors have laid down
conditions that go against all agreements. For example
Air Liquide lays down fl. 45,- rent per year. AGA fl.
0,15 per cylinder. Hoekloos has clearly laid down
dumping prices with three customers.(cid:146) (183)

(276)

In a Messer internal meeting report dated 8 September
1997 more and more rent offers below NLG 0,25 are
noted (184).
In a following meeting report dated 18
September 1997 salesmen are instructed to make a list
of competitors which have offered rent below NLG
0,25 (185).

(181) File WF, non-confidential reply to the statement of objections,

p. 11, points 62 to 64.

(182) File MG, p. 7273.
(183) File MG, p. 7211 (own translation).
(184) File MG, p. 7297.
(185) File MG, p. 7270.

(280) At Hoek Loos a letter was found addressed to Messer
Griesheim in Frankfurt, signed by the CEO and dated
and sent by fax on 18 October 1990 (189), quoted in
section C.4 above, stating, amongst other things:
(cid:145)for
liquid supplies we will
introduce a drop charge as
explained in the price list.(cid:146) The undated and untitled
document attached to that
letter, also described in
section C.4(b) stated:

(cid:145)For supply of bulk gases and from today on: for new
customers a drop charge of
fl. 34,00(cid:151)36,00. For
existing customers this drop charge will be introduced
in October 1990. This drop charge does not apply to
so-called horticultural carbon dioxide (cid:133)
Motivation drop charge: queues, energy, driving time
legislation.(cid:146)

(281) Reference has

to a meeting of
competitors held on 22 November 1990 (190) in which
(cid:145)Bulk (cid:151) drop charge(cid:146) was one of the items discussed.

also been made

(186) File AP, p. 1723.
(187) File AGA, p. 292.
(188) File MG, p. 4835.
(189) File HL, pp. 2655 to 2657.
(190) File AL, p. 2112 (own translation).

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The internal notes in question state the following on the
drop charge:

(286)

In reply to the Commission’s questions, Air Liquide
states that it never introduced the drop charge (194). Air
Liquide confirmed this again in its
reply to the
statement of objections (195).

(cid:145)HL: all clients approached (cid:151) starting 1.11.90. App. 30
reactions (few, therefore). DFL. 36,-.
AP: letter sent 16.11. Integrally everyone starting 1.12.
DFL. 36,-. Already oral/written reactions.
AGA: The large do not accept it (Nedstaal, AKZO), app.
50 % approached. Starting date 1.12.
AL: Queue charge introduced. Dropcharge per 1.1.
Arguments:
higher insurance cost, stricter regulations, training cost.
Introduce as a rule in new contracts.
(cid:133)(cid:146)

legislation on driving hours, queues, fuel,

(282) Possibly at the beginning of 1991 representatives of Air
Liquide, Air Products, Hoek Loos and AGA met and
discussed the success of the recent implementation of
the drop charge on bulk for 1991. A handwritten
found at Air
memo on that meeting,
Liquide (191) and already quoted in recital 125 states
among other things:

in Dutch,

(cid:145)Price increase [(cid:133)]: everything increased
transport costs
bulk BOC/Messer
cyl. Westf./Messer/AL
HL: percent of 6 both bulk/cyl.
Index shows 6 % growth
AGA: only 20 % of the plan realised
index shows 6 % growth
(cid:133)
Drop charge bulk introduced by most. (cid:133)(cid:146)

(287) Hoek Loos introduced the drop charge in October 1990
and raised it
from
1 January 1995 for new customers and renewed
contracts (196).

from NLG 36,00 to 56,00 as

(288) AGA introduced it in December 1990 at NLG 36,00. As
gradually

amount was

of 1 January 1994 this
superseded by NLG 56,00 (197).

(d) Environmental and safety charge for cylinders

(i) Overview

(289) Hoek Loos, AGA, Air Products, Air Liquide and Messer
decided in 1993 to jointly introduce an environmental
and safety charge on supplies of gases in cylinders
amounting to NLG 12,50.

(ii) Cartel meetings and collusive contacts

(290) A safety and environment charge (VMT) of NLG 12,50
was agreed upon in 1993 between Hoek Loos, AGA,
Air Products, Air Liquide and Messer.

(283)

In reply to the Commission’s questions, Air Liquide
dated the document to (cid:145)around 1990(cid:146) and called them
(cid:145)personal notes of [(cid:133)], presumably made after a social
contact(cid:146) (192). The representative of Air Products in this
meeting seems to have been general manager [(cid:133)].

(291)

(284) The issue of the drop charge was discussed again on 3
September 1993, when it was proposed to raise it to
NLG 55 to 65.

(285) The drop charge was discussed in or around the VFIG
meeting held on 3 September 1993. According to
handwritten notes found at Air Products (193),
it was
proposed at the meeting that the drop charge be raised
to NLG 55 to 65.

(191) File AL, p. 2096 (own translation).
(192) File AL, p. 5612 (own translation).
(193) File AP, pp. 1758 to 1760.

for

reasons of

environment

In 1993 competitors discussed the possibility of
introducing an additional charge on each delivery of
cylinders
and safety
(veiligheids- en milieutoeslag’ or VMT). At first it was
discussed within the VFIG whether the federation should
the need to include certain
inform customers of
environmental and safety costs in prices. This is referred
to in the official meeting report of the meeting of 15
June 1993 (198). By letter dated 11 August 1993 Hoek
Loos informed the VFIG that its legal advisors strongly
advised against such information being sent by the
VFIG. Hoek Loos preferred each company to inform its
own clients, and its letter included a draft
letter to
customers announcing the introduction of a VMT of
NLG 12,50 (199). It was agreed at the VFIG meeting of
3 September 1993 (the chairman concluded) to take the

(194) File AL, p. 5615.
(195) File AL, non-confidential reply to the statement of objections,

p. 15, point 78.
(196) File HL, p. 5554.
(197) File AGA, p. 7010.
(198) File VFIG, p. 4079.
(199) File VFIG, pp. 4082 and 4083; also in several other company

files.

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the agenda (200). According to handwritten
point off
notes found at Air Products, someone (presumably the
chairman) concluded:
to
explain new sit.(cid:146). The notes also refer
to doubts
expressed by AGA that NLG 12,50 for the delivery of
one cylinder to a small customer might be too much to
ask (201).

(cid:145)every co to send a letter

(292) All companies

introduced the VMT of NLG 12,50
before the end of 1993. Westfalen, which was not a
member of the VFIG at the time, also introduced the
charge, but at a lower and variable level. It was also
agreed that
the VMT was also to be charged to
competitors on inter-company supplies.

(293) Another VFIG meeting took place on 16 December
1993. A handwritten memo found at Air Liquide (202)
concerning that meeting states:

(cid:145)Fl. 12,50 arrangement
Fl. 12,50 also to be levied on inter company supplies.
Everyone
between fl. 3,- and 12,-.(cid:146)

introduced, but Westfalen with variation

(294) Handwritten notes submitted by AGA also mention the

VFIG meeting held on 16 December 1993:

(cid:145)Safety charge: safety charge also to competitors.(cid:146) (203)

(cid:145)It was decided in the last meeting in the VFIG that all
the gas companies should also invoice safety charge to
each other. However we accept to exclude the safety
charge on your invoices in the future.(cid:146) (206)

(297) Air Products, Air Liquide and Hoek Loos introduced a

VMT of NLG 12,50 at the end of 1993.

(298) At Hoek Loos were found a signed letter from Air
Products (207) and a standard or draft letter from Air
Liquide (208) to customers announcing the introduction
of a VMT of NLG 12,50. Hoek Loos itself confirms that
it introduced the VMT in November 1993 and explains
the draft
it was also a
letters by pointing out
customer of those competitors (209).

that

(299) According to handwritten notes found at AGA (210) the
(cid:145)safety charge/environmental charge(cid:146) was apparently
discussed again at the VFIG meeting held on 17 March
1994.

(300)

In 1995 and 1996 the VMT was still charged by the
companies to their customers.

(301) Air Liquide raised the VMT to NLG 15,00 on 1 January
1996 (211). Messer raised it to NLG 15,00 on 1 October
1995. Although there are several indications in the file
that Hoek Loos also intended to raise the VMT to NLG
15,00 in 1995, this never happened (212). Nor did AGA
increase the VMT (213).

(295) Air Liquide introduced the VMT of NLG 12,50 on
1 December 1993. By letter dated 26 November 1993
Air Liquide informed AGA that the latter would have to
pay an VMT of NLG 12,50 on each delivery from
1 December 1993 (204). Air Liquide confirmed to the
Commission that it introduced the VMT on 1 December
1993 (205).

(302)

to the Commission’s

In reply
request Westfalen
acknowledged that it had introduced an environmental
charge as from 1 January 1994 at NLG 3,00 per
cylinder brought or fetched and of NLG 12,50 for each
supply of liquid gas. These amounts can differ between
customers (214).

(296) AGA introduced a VMT of NLG 12,50 from 15
November 1993. AGA started charging this sum on
supplies to BOC from November 1993 on, to which
BOC protested by letter dated 5 January 1994 (the
motive being that AGA was not making deliveries but
simply collecting BOC cylinders). On this letter the
following handwritten comment of an AGA employee is
added:

(200) File VFIG, p. 4093.
(201) File AP, p. 1758.
(202) File AL, p. 2171 (own translation).
(203) File AGA, p. 4964.
(204) File AGA, p. 1059.
(205) File AL, p. 5615.

(303)

industrial gases

In reply to the statement of objections, Westfalen denied
having ever participated in an agreement with the sellers
in the Netherlands on a VMT.
of
Westfalen claimed that the fact it also imposed such a
charge does not justify the conclusion that there was an
agreement. It merely shows that the costs rose due to
legal measures making the implementation of such a

(206) File AGA, p. 1063.
(207) File HL, p. 2986.
(208) File HL, p. 2996.
(209) File HL, p. 5554.
(210) File AGA, p. 453.
(211) File AL, pp. 5614 and 5615.
(212) File HL, p. 5554.
(213) File AGA, p. 7009.
(214) File WF, p. 5250.

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charge inevitable. The charge Westfalen imposed was
much lower than that of its competitors. It was also of a
varying level in contrast to the flat-rate charge imposed
by competitors. Westfalen announced the introduction
of this charge on 1 January 1994 and explained why it
was doing so (215).

(304) The Commission notes that Westfalen had not taken
part in the VFIG meetings held in June and September
1993 referred to at recital 291, as Westfalen was not
yet a member of the association.

(305) BOC was the only gas undertaking not to introduce a
VMT in 1993/1994. It was not until the beginning of
1996 that BOC announced the introduction of such a
charge to customers
in both the Netherlands and
Belgium (216). The Commission notes in this context
that BOC was not
the two critical
meetings of the VFIG on this issue, held in June and
September 1993.

represented at

January 12th for final discussion and consensus on such
a price list.(cid:146)

(309) This price list, already described in section C.4, was
found in the investigation in Air Liquide (218) and
printed on AGA paper and entitled (cid:145)Bulkgassen (cid:151)
prijsstaffel gegevens(cid:146) (bulk gases (cid:151) price scales). The list
also provides for tank rent.

(310) The Commission has evidence that

tank rental was
discussed on the VFIG meeting held on 14 October
1994. According to handwritten notes submitted by
AGA on the VFIG meeting held on 14 October 1994,
points that were discussed included tank rent, long term
evaluated and minimum
rental which should be
prices (219). Other handwritten notes found at AGA
concerning the same meeting state that (cid:145)liquid will be
to
the next
minimum tank rental.

subject(cid:146) (220). These notes

also refer

(e) Rent of bulk tanks

(i) Overview

(311) A proposal with a view to an agreement on tank rent
paid by liquid gas customers was made for 1997 and
was to be discussed by AGA, Hoek Loos, Air Products,
Air Liquide and Messer.

(306) The calculation of tank rental for liquid gas customers
was
repeatedly the subject of discussions between
suppliers of industrial gases. An agreement on this was
reached in 1990 between AGA, Air Liquide and Hoek
Loos, and in 1996 a proposal with a view to an
agreement was discussed between AGA, Air Liquide, Air
Products, Hoek Loos and Messer for 1997.

(312)

Identical
lists of minimum prices for 1996 and 1997,
already described in section C.4, were found at Air
Products (221), AGA (222) and Messer (223). These lists
also contain explicit references to the rent of
tanks,
evaporators and mixers (cid:145)Huur tanks/verdampers/mixers
ROI 10 %; ROI 15 %(cid:146).
the Commission
considered that (cid:145)ROI(cid:146) might have referred to an index to
calculate increases in tank rent.

Initially

(ii) Cartel meetings and collusive contacts

(313)

(307) From the end of 1989 or the beginning of 1990 Hoek
Loos, AGA, Air Products and Air Liquide agreed on the
rent of bulk tanks.

(308) Already quoted in sections C.2, C.3 and C.4 above, an
internal memo in English dated 24 November 1989,
marked (cid:145)confidential(cid:146) and found at AGA concerning a
(cid:145)safety meeting(cid:146) (217)
(cid:145)All shall
work out proposal for liquid price list. Meeting is set for

included the sentence:

(215) File WF, non-confidential reply to the statement of objections,

p. 12, points 67 to 71.

(216) File BOC, p. 6450.
(217) File AGA, p. 782.

In its reply to the statement of objections, Messer
argued that the Commission concluded that there was
an agreement on an index to increase the rent for tanks
for the customers of liquid gas in 1996 on the grounds
of only one sentence in a Messer document (224). Messer
denied that
sentence could lead to any such
conclusion. Messer is of the opinion that (cid:145)ROI(cid:146) stands
for
the rent prices
mentioned were the ones needed for a return on
investment of 10 to 15 %.

return on investment and that

this

(218) File AL, pp. 2150 and 2151 (own translation).
(219) File AGA, p. 4983.
(220) File AGA, p. 454.
(221) File AP, p. 1723.
(222) File AGA, p. 292.
(223) File MG, p. 4835.
(224) File MN, non-confidential reply to the statement of objections,

p. 24.

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(314)

In its reply to the statement of objections, AGA denied
that any agreement was reached on the tank rental
index mentioned in the list of minimum prices for 1997
handed out by the AGA representative in Breda on
2 October 1996. As mentioned on the same printed
pages, there was a proposal on small bulk, but AGA
stressed that this was ignored and not touched upon.
AGA argued that
tank rental should not be treated
differently from (cid:145)Kleine Bulk(cid:146) for which the statement of
objections
agreement was
that
reached (225).

recognised

no

(315)

In its reply to the statement of objections (226), Air
Products did not deny that it had been party to an
agreement on the calculation of the increase in tank
rental for liquid gas in force in 1996 until end 1997, as
alleged by
statement of
the Commission in its
objections.

(316) The Commission takes the view that the lists mentioned
in recital 312 show that there was at least a proposal
for an agreement on tank rental in 1997 just as there
was for minimum prices.

PART II (cid:151) LEGAL ASSESSMENT

D. APPLICATION OF ARTICLE 81 OF THE TREATY

1. ARTICLE 81(1) OF THE TREATY

(317) Article 81(1) of the Treaty prohibits as incompatible
with the common market all agreements between
undertakings, decisions by associations of undertakings
or concerted practices which may affect trade between
Member States and which have as their object or effect
the prevention, restriction or distortion of competition
within the common market, and in particular those
which directly or indirectly fix purchase or selling prices
or any other
limit or control
production and markets, or share markets or sources of
supply.

trading conditions,

2. AGREEMENTS AND CONCERTED PRACTICES

(318) An agreement can be said to exist when the parties
adhere to a common plan, which limits or is likely to

their

conduct

lines of

individual

commercial

their mutual

limit
by
action or
determining the
abstention from action in the market. It does not have
to be made in writing; no formalities are necessary, and
no contractual sanctions or enforcement measures are
required. The fact of agreement may be express or
implicit in the behaviour of the parties.

(319)

In its judgment in Joined Cases T-305/94 etc. Limburgse
Vinyl Maatschappij NV and Others v Commission (PVC
II) (227), the Court of First Instance stated that (cid:145)it is well
established in the case-law that
for there to be an
agreement within the meaning of Article 81(1) of the
Treaty it
for the undertakings to have
expressed their joint intention to behave on the market
in a certain way(cid:146).

is sufficient

the object

(320) Article 81 of the Treaty draws a distinction between the
concept of (cid:145)concerted practices(cid:146) and that of (cid:145)agreements
between undertakings(cid:146) or of (cid:145)decisions by associations of
undertakings(cid:146);
to bring within the
prohibition laid down in that provision 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 (228).

is

intends to adopt

(321) The criteria of coordination and cooperation laid down
by the case-law of the Court, far from requiring the
elaboration of an actual plan, must be understood in the
light of the concept inherent in the provisions of the
Treaty relating to competition, according to which each
economic operator must determine independently the
in the
commercial policy which it
common market. Although
of
independence does not deprive undertakings of the right
intelligently to the existing or
to adapt
anticipated conduct of
strictly
precludes any direct or indirect contact between such
operators the object or effect whereof
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 (229).

their competitors,

requirement

themselves

is either

that

it

(322) Thus conduct may fall within the scope of Article 81(1)
of the Treaty as a (cid:145)concerted practice(cid:146) even where the

(227) Joined Cases T-305/94 etc. Limburgse Vinyl Maatschappij. and

Others v Commission (PVC II) [1999] ECR II-931, paragraph 715.

(225) File AGA, non-confidential reply to the statement of objections,

(228) Case 48/69 Imperial Chemical Industries v Commission [1972] ECR

pp. 10 and 11, points 35 to 39.

619, paragraph 64.

(226) File AP, non-confidential reply to the statement of objections,

(229) Joined Cases 40-48/73 etc. Suiker Unie and Others v Commission

p. 13.

[1975] ECR 1663.

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parties have not explicitly subscribed to a common plan
defining their action in the market, if they nevertheless
knowingly adopt or adhere to collusive devices which
facilitate
commercial
behaviour (230).

coordination

their

the

of

(323) Although in terms of Article 81(1) of the Treaty 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
it may be presumed, subject to proof to the
with it,
contrary,
in such a
concertation and remaining active in the market will
take
information exchanged with
competitors in determining their own conduct on the
market, all the more so when the concertation occurs
on a regular basis and over a long period (231).

that undertakings

taking part

account of

the

(324)

that

It is not necessary, particularly in the case of a complex
the Commission
long duration,
infringement of
characterises it as exclusively one or other of
these
forms of illegal behaviour. The concepts of agreement
and concerted practice 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 as
one rather than the other. It would however be 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
the same time. Article 81 lays down no
practice at
specific category for a complex infringement of
that
type (232).

(325)

In PVC II, the Court of First Instance stated that (cid:145)in the
context of a complex infringement which involves many
producers seeking over a number of years to regulate
the market between them, the Commission cannot be
expected to classify the infringement precisely, for each
undertaking and for any given moment, as in any event
both those forms of infringement are covered by Article
81 of the Treaty(cid:146) (233).

(230) See also Case T-7/89 Hercules Chemicals v Commission [1991] ECR

II-1711, paragraph 256.

(231) See Case C-199/92 P H(cid:252)ls v Commission [1999] ECR I-4287,

paragraphs 158 to 166.

(232) Case T-7/89 Hercules Chemicals v Commission, paragraph 264.
(233) Joined Cases T-305/94 etc. Limburgse Vinyl Maatschappij. and

Others v Commission (PVC II) [1999] ECR II-931, paragraph 696.

(326) An (cid:145)agreement(cid:146) for the purposes of Article 81(1) of the
Treaty does not require the same certainty as would be
necessary for the enforcement of a commercial contract
at civil law. Moreover, in the case of a complex cartel of
long duration,
the term (cid:145)agreement(cid:146) can properly be
applied not only to any overall plan or to the terms
expressly agreed but also to the implementation of what
has been agreed on the basis of the same mechanisms
and in pursuance of the same common purpose.

(327) As the Court of Justice (upholding the judgment of the
Court of First Instance) has confirmed in Case C-49/92
P Commission v Anic (234), it follows from the express
terms of Article 81(1) of the Treaty that agreement may
consist not only in an isolated act but also in a series of
acts or a course of conduct.

(328) A complex cartel may thus properly be viewed as a
single continuing infringement for the time frame in
which it existed. The agreement may well be varied
from time to time, or
its mechanisms adapted or
strengthened to take account of new developments. The
is not affected by the
validity of
possibility that one or more elements of a series of
actions or of a continuous course of conduct could
individually and in themselves constitute a violation of
Article 81(1) of the Treaty.

this assessment

(329) Although a cartel is a joint enterprise, each participant
in the agreement may play its own particular role. One
or more may exercise a dominant role as ringleader(s).
Internal conflicts and rivalries, or even cheating may
from
occur, but will not prevent
constituting an agreement/concerted practice for the
purposes of Article 81(1) of the Treaty where there is a
single common and continuing objective.

the arrangement

(330) The mere fact that each participant in a cartel may play
the role which is appropriate to its own specific
circumstances does not preclude its responsibility for
the infringement as a whole, including acts committed
by other participants but which share the same unlawful
purpose and the same anti-competitive effect. An
undertaking which takes part in the common unlawful
enterprise by actions which contribute to the realisation
of the shared objective is equally responsible, for the
whole period of its adherence to the common scheme,
for the acts of the other participants pursuant to the
same infringement. This is certainly the case where it is

(234) See the judgment of the Court of

Commission v Anic Partecipazioni SpA,
paragraph 81.

Justice in Case C-49/92 P
[1999] ECR I-4125,

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established that the undertaking in question was aware
of the unlawful behaviour of the other participants or
could have reasonably foreseen or been aware of them
and was prepared to take the risk (235).

3. THE NATURE OF THE INFRINGEMENT IN THIS CASE

(335) VFIG informed the Commission that its Secretariat had
to
never been requested to leave meetings, or not
mention certain topics
It was
furthermore claimed that the Secretariat was not aware
of
of VFIG
any
the margins
meetings (237).
(cid:145)Off the record(cid:146) remarks were, however,
found in an internal AGA note concerning the VFIG
meeting of 17 February 1993 (238).

in the minutes.

discussions

on

(331) The Commission collected

collusion
between competitors during the periods 1989 to 1991
and 1993 to 1997.

evidence

of

(332) The

elements

agreed upon in the meetings of
competitors basically remained the same over the years.
In 1989 Hoek Loos, AGA and Air Products agreed to
raise prices for cylinder gases at the beginning of the
following year and to observe a moratorium period to
implement
two elements: price
increases and a moratorium period to implement them,
which are described in detail in Part I, section C of this
Decision, were
subsequent
meetings of senior representatives of competitors until
the Commission started its investigations in December
1997.

rises. These

subject of

regular

these

the

(333) The venue for the meetings varied. In the early years,
starting 1989, they took place within the framework of
so-called (cid:145)safety meetings(cid:146). Subsequently VFIG meetings
became the forum of choice. From 1995 on Hoek Loos,
Air Products, AGA, Air Liquide and Messer organised
separate meetings outside of the VFIG. Bilateral contacts
completed the anti-competitive network.

relating

and other

did not mention discussions

(334) The agenda and the minutes of the (cid:145)safety meetings(cid:146) and
or
VFIG meetings
agreements
trading
to prices
conditions with one exception: the introduction of an
environmental and safety charge on cylinder sales in
1993. In its reply to the Commission’s enquiries, the
VFIG stated that the minutes reflected all of the topics
that were discussed in the meetings (236). Neither the
draft agenda nor the minutes of VFIG meetings ever
mentioned discussions or decisions concerning prices.
With one exception concerning the introduction of an
environmental and safety charge, which is described in
detail
in section C.5(d) of this Decision, agendas and
minutes do not mention discussions or decisions
concerning
The
supplementary meetings held by the larger companies
from 1995 on did not have a formal agenda either.

conditions

supply

either.

other

(235) Case C-49/92 P Commission v Anic [1999] ECR I-4125, paragraph

83.

(236) File VFIG, p. 3798.

(336) The Commission concludes that the collusive contacts in
these official
question took place on the fringe of
meetings. No official minutes were drawn up of the
price
anti-competitive
detailed
agreements were concluded during some of
those
meetings (e.g. the VFIG meeting held on 18 November
1994).

although

contacts,

(337) That the undertakings concerned must have been aware
of the illicit nature of their behaviour is confirmed by
some of
the documents quoted above (after reading
please destroy, nothing on paper) many of which were
also marked and treated as confidential.

respective

intentions

customers

to implement

(338) Several documents demonstrate that the undertakings in
question did not just regularly use these occasions to
to
exchange views on their
increase prices and to concentrate their efforts on their
existing
these
in order
increases, but actually concluded an agreement to do so.
The undertakings expressed their common desire to
in a particular
conduct
manner in regard to prices, that is to say, to act in such
a way as to ensure that
the
meetings in question would be achieved (239). This is
not altered by the fact that the price increases agreed
upon could differ between the undertakings, as could
the exact date of the implementation thereof.

themselves on the market

the prices agreed at

expression (cid:145)all participants

(339) The AGA note on the agreement reached in 1989 uses
the
agree upon price
increase(cid:146) and (cid:145)we will ask AL for moratorium 4(cid:151)5
months(cid:146) (240). The AGA note of 1991 concerning
Messer states that (cid:145)MG also agreed on price increases of
6 % on gas and services(cid:146) and (cid:145)MG also agreed on a

(237) File VFIG, pp. 3797 and 3798.
(238) File AGA, pp. 126 to 128.
(239) Judgment in Case T-141/94 Thyssen v Commission [1999] ECR

II-347, paragraph 262.

(240) File AGA, p. 782.

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cease-fire during November(cid:151)December(cid:151)January and
February, in order to be able to have negotiations on
price increases with customers(cid:146) (241). The Air Liquide
note of 1993 states (cid:145)apparently agreement on price
increase per 1/1 but not on percentage or minimum
level(cid:146) (242). The Air Products note on the VFIG meeting
of November 1994 describes Air Liquide’s position that
the moratorium period should last (cid:145)four months except
for those companies that do not participate(cid:146). The same
note describes how companies should act during the
moratorium period: (cid:145)only deal with own customers(cid:146) and
(cid:145)one of colleague companies P/support(cid:146) (243). The latter
remark shows that competitors should not just refrain
from approaching each other’s customers but give active
support to the price increase when approached by such
customers (244). The internal Hoek Loos meeting report
phrases it as follows: (cid:145)according to rumours a cease-fire
will
take place per 1.12.1994 between the various
suppliers of industrial gases(cid:146) (245). The Air Products note
from each other’s
from 1996 states
customers (cid:151) bulk 1 Nov(cid:151)1 March(cid:146) (246).

away

(cid:145)stay

information. The fact

(340) All these notes describe an agreement and not just an
exchange of
that on some
occasions producers may have wavered in their initial
resolve and given concessions to certain customers, or
created exceptions for certain categories of customers,
does not preclude an unlawful agreement having been
reached within the meaning of Article 81(1) of
the
Treaty.

(341) Agreements were also reached on minimum prices. A
price list for liquid gases was to be worked out and a
(cid:145)final discussion and consensus(cid:146) (247) was to be reached
in January 1990. Minimum prices for cylinder gases
were also decided in 1990 and updated in later years,
albeit not necessarily on an annual basis. Hoek Loos’
letter to Messer of 1990 states that (cid:145)all parties in our
country accept [sic] MG have confirmed that they will
stick absolutely to the bottom prices as mentioned in
the attached list(cid:146) (248). The AGA note on Messer of
1991 states that (cid:145)all gas companies incl. MG agreed on
using bottom prices (cid:151) rent and transport charges(cid:146), to
which was added the handwritten comment
(cid:145)talk to
Messer to respect bottom prices(cid:146), and orders retaliation

(241) File AGA, p. 877.
(242) File AL, pp. 2171 and 2172 (own translation).
(243) File AP, p. 1755 (own translation).
(244) Active support is also referred to in file AGA, p. 4982 (bilateral

meeting AGA-MG).

(245) File HL, p. 2984 (own translation).
(246) File AP, p. 1725.
(247) File AGA, p. 782.
(248) File HL, p. 2655.

in Germany if such talks were unsuccessful (249). Hoek
Loos, AGA, Air Products, Air Liquide and Messer also
agreed minimum prices for cylinder gases for small
customers for 1995, 1996 and 1997.

(342) Other minimum trading conditions were also agreed
over the years, both for cylinder gases and for bulk
gases.

(343) Minimum transportation cost and minimum cylinder
rent were included in the list of bottom prices which
Hoek Loos sent to Messer in Frankfurt in 1990 and to
which all parties in the Netherlands had confirmed that
they would (cid:145)stick(cid:146). Further (cid:145)decisions(cid:146) (250) were taken in
1994 on minimum transportation cost and minimum
rent. These agreements were confirmed in the lists of
minimum prices agreed for 1995, 1996 and 1997.

(344) The introduction of an environmental and safety charge
on cylinders was decided at VFIG meetings, and it was
initially thought that the VFIG should inform customers
thereof. Further to legal advice, it was concluded that
each undertaking would inform its own clients. This
the
change in plans does not alter
environmental and safety charge was agreed by the
undertakings in question.

the fact

that

by

salesmen.

over-zealous

(345) There are a number of references in the Commission’s
file alleging that this or that competitor had offered
gases at prices and other trading conditions below what
had been agreed. Some of these instances may have
been acts of retaliation, others may have been carried
out
differences
regarding specific customers were discussed bilaterally.
There are also records of instructions regarding price
increases or bottom prices, which are not quite in line
with what was agreed with competitors. Much more
frequent, however, are instructions at
the end of
calendar years to implement the agreed price increases
and to concentrate on implementing them rather than
to approach the customers of competitors. The same
goes for the necessity of respecting minimum prices and
other minimum trading conditions.

Such

(346) An example,
referred to,

in addition to those already quoted or
instruction
is an Air Liquide internal

(249) File AGA, p. 877.
(250) File AGA, p. 453.

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concerning cylinder gases of 29 July 1993 (251), which
(cid:145)Some time ago it was agreed that
reminds sales staff:
only daily rent would be calculated, which means no
longer any rent-free periods. These conditions must be
respected. (cid:133) Freight (dropcharge): No deviations can be
allowed regarding the cost of freight. Our prices are low
already and the other conditions must
therefore be
maintained. Rent: Lately the daily rent offered seems to
be declining, often to a level of 0,10. There is an
agreement and a bottom price and this must be
followed.(cid:146)

(347) Although Air Liquide

the

that

(cid:145)agreement(cid:146)
claims
referred to was of an internal nature, the Commission is
of the opinion that these instructions cannot be viewed
in isolation from the agreements on bottom prices and
other trading conditions reached with competitors in
1990 and 1993.

(348)

that

the Commission comes

In its reply to the statement of objections (252), Air
Liquide argues
to the
completely unjustified conclusion that Air Liquide
entered into anti-competitive agreements or concerted
practices other than those concerning the environment
and safety charge. It alleges that the documents used by
the Commission actually highlight
that Air
Liquide was a tough competitor on the market, acting
independently and not wanting its policy to be
influenced by agreements with competitors. Air Liquide
also
its
allegations largely on documents from Air Liquide’s
competitors.

the Commission bases

emphasises

the fact

that

(349) Air Liquide also repeatedly mentions the fact that it
never implemented the alleged agreements, but that its
commercial policy was the result of purely autonomous
decisions. To substantiate its point, the company argues
that its particular position on the market at the time
warranted a policy of expanding its market share which
led to prices lower than its competitors (253).

(350)

reply to the

statement of objections (254),
In its
Westfalen argues
in
anti-competitive agreements and that the Commission
has not proved it did. Westfalen claims that it never
implemented any agreement. Westfalen also insists that

it did not

take part

that

(251) File AL, p. 2068 (own translation).
(252) File AL, non-confidential reply to the statement of objections,

points IV and V.

(253) File AL, non-confidential reply to the statement of objections, for

example, point 1.4.

(254) File WF, non-confidential reply to the statement of objections,

pp. 3 and 4.

it did not participate in any of the (cid:145)safety meetings(cid:146) or
that, on the
the Breda/Barendrecht meetings, but
contrary,
it always pursued an aggressive commercial
policy towards its competitors.

the

evidence

(351) The Commission notes that the fact that Air Liquide and
Westfalen participated in several meetings, and that the
object of these meetings was to restrict competition, is
confirmed by
in the
documentary
Commission’s
the behaviour
file. The finding that
described constitutes agreements within the meaning of
Article 81(1) of the Treaty is not altered even if it is
established that one or more participants had no
intention to implement the joint intentions expressed by
them. Having regard to the manifestly anti-competitive
nature of
the meetings at which intentions were
expressed, the undertakings concerned, by taking part
without publicly distancing themselves, gave the other
participants the impression that they subscribed to what
was discussed and would act in conformity with it. The
notion of (cid:145)agreement(cid:146) is objective in nature. The actual
motives (and hidden intentions) which underlay the
behaviour adopted are irrelevant (255).

(352) Given the regularity of

the meetings to discuss and
agree on the different pricing and trading conditions
described above and given the similarity of method of
agreement for these different conditions, often included
in the same meetings, the Commission considers that
the conduct in question constituted a single continuous
infringement of Article 81(1) of the Treaty for each of
the periods identified at recital 331 above.

the

following

to be singled out

(353) NTG, which was a very small operator on the market
from the above
concerned, has
reasons. NTG never
analysis
for
participated in any of
the meetings regarding price
increases, moratoria, minimum prices or other trading
conditions except one, and can therefore not been
considered as having participated in the same complex
of agreements as the other companies to which this
Decision is addressed. NTG participated in only one of
the meetings (the VFIG meeting of September 1993), at
which the environment and safety charge was touched
upon and taken off the agenda. Contrary to what was
said in the statement of objections, this company was
not present at the meeting of June 1993, when the issue

(255) Judgment

in Case T-142/89 Usines Gustave Boºl

[1995] ECR
II-867, paragraph 60. Most recently confirmed by the Court of
Justice in Case C-199/92P H(cid:252)ls v Commission,
[1999] ECR
I-4287, paragraphs 155 to 168.

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of the safety and environment charge was first debated.
introduced the the
Furthermore, NTG argues that
safety and environment charge, which it did later than
the other cartel participants, as a direct result of being
invoiced for that charge by its supplier, for which it
adduces evidence. Given the above, no infringement will
be identified for NTG.

it

(357) These sorts of arrangements have as their object the
restriction of competition within the meaning of Article
81(1) of the Treaty. Price being the main instrument of
competition,
the various collusive arrangements and
mechanisms adopted by the suppliers were all ultimately
aimed at an inflation of the price (or at least to limit its
decline)
to their benefit and above the level which
would be determined by conditions of free competition.

4. RESTRICTION OF COMPETITION

(354) Article 81(1) of

the Treaty expressly mentions as

restrictive of competition agreements which:

(a) directly or indirectly fix selling prices or any other

trading conditions;

(358)

In order to conclude that Article 81(1) of the Treaty
applies, there is no need to consider the actual effects
upon competition of an agreement once it is established
restricting
that
competition.

the agreements had the object of

(b)

limit, or control production;

(359)

(c) share markets or sources of supply.

(355)

agreements

complex of

In the
and arrangements
considered in the present case, the following elements
can be identified as
to find an
in order
relevant
infringement of Article 81(1) of the Treaty:

(a) agreeing concerted price increases;

(b) agreeing moratoria

to implement

these price

increases;

(c) agreeing minimum prices;

(d) agreeing other trading conditions;

(e) participating in regular meetings and having other
contacts in order to agree on those restrictions and
to implement and/or modify them as required.

(356) The basic purpose behind the regular meetings and the
continuing collusion of the undertakings was to achieve
a series of concerted increases as regards prices and
other trading conditions. By planning common action
on price initiatives with price increases and minimum
prices and other trading conditions for an agreed period
of time, the undertakings aimed to eliminate the risks
involved in any unilateral attempt to increase prices,
notably the risk of losing market share. Therefore, the
agreements identified above have as their object
the
restriction of competition within the meaning of Article
81(1) of the Treaty. The restriction must be deemed to
have been appreciable,
the manifestly
anti-competitive nature of the agreements and of the
strong position of the participating undertakings on the
relevant market.

in view of

It

is

the

impression that

It appears that some of these agreements were more
effective than others. The general erosion of average
prices for bulk and cylinder gases between 1989 and
the annual
1997 could give
agreements to raise prices and the setting of minimum
prices had produced no effect at all.
likely,
however, that the erosion would have developed more
rapidly in the absence of those agreements. The mere
fact that year after year companies continued to plan
and agree their price increases together and to agree on
a moratorium period shows
this activity was
valuable to them. The repeated lists of bottom prices
and other minimum supply conditions must also have
those companies
been deemed important by at
which updated those lists
in their meetings. The
remarkable stability in cylinder gas market shares over
the years may also have been caused, at least in part, by
the agreements on prices and moratorium periods.

least

that

(360) As regards the agreement to introduce an environmental
and safety charge for sales of cylinder gases, this must
be deemed to have been quite successful, given that the
charge rapidly became an accepted feature of the market
and remains so to this day. The introduction of a drop
charge on bulk supply seems to have been accepted by
most customers and must
therefore also be rated a
success.

5. EFFECT UPON TRADE BETWEEN MEMBER STATES

(361) The continuous agreements/concerted practices between
the producers as described in this Decision and relating
to prices
in the
Netherlands were capable of having/had an appreciable
effect upon trade between Member States.

conditions

trading

other

and

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(362) Article 81(1) of the Treaty prohibits certain agreements
between undertakings and concerted practices, which
may affect trade between Member States. Article 81(1) is
aimed at agreements, which might harm the attainment
of a single market between Member States, whether by
partitioning national markets or by affecting the
structure of competition within the common market.

from 20 000 to 27 000 tonnes; exports of nitrogen (CN
ranged from 34 000 to 70 000
code 2804 30 00)
tonnes and imports from 28 000 to 72 000 tonnes;
exports of oxygen (CN code 2804 40 00) ranged from
88 000 to 258 000 tonnes and imports from 212 000
to 268 000 tonnes; exports of carbon dioxide (CN code
2811 21 00) ranged from 201 000 to 207 000 tonnes
and imports from 155 000 to 191 000 tonnes.

(363)

It is settled case-law that,
(cid:145)for an agreement between
undertakings or a concerted practice to be capable of
affecting trade between Member States,
it must be
possible to foresee with a sufficient degree of probability
and on the basis of objective factors of law or fact that
it may have an influence, direct or indirect, actual or
potential, on the pattern of
trade between Member
States, such as might prejudice the realisation of the aim
of a single market between the Member States(cid:146) (256).

(364) The application of Article 81(1) of the Treaty to a cartel
is not, however,
limited to that part of the members’
sales, which actually involve the transfer of goods from
one State to another. Nor is it necessary, in order for
these provisions to apply, to show that the individual
conduct of each participant, as opposed to the cartel as
a whole, affected trade between Member States (257).

(368) This

for

information pursuant

in the Netherlands
requests

trend was confirmed by the industrial gases
in reply to the
undertakings
Commission’s
to
Article 11 of Regulation No 17. Some of them purchase
their atmospheric gases nitrogen, oxygen and argon in
bulk from sister companies or from competitors located
in Belgium or Germany. Others, which operate an air
separation unit
their
gases in bulk to sister companies in Belgium or in
Germany, or to competitors. Gases purchased by the
undertakings in bulk in other Member States are then
filled into cylinders in the Netherlands or delivered in
liquid form to customers in that country. Acetylene is
often purchased on behalf of several sister companies
under one contract.

in the Netherlands, sell part of

(365)

In the present case, it should be noted that industrial
is
gases are traded between Member States. This
confirmed by the official statistics on trade between the
Netherlands, Germany and the Belgium-Luxembourg
Economic Union (BLEU).

(369) These swap and back-up agreements between industrial
gas companies in the Netherlands ensure that
their
supplies to customers are not interrupted by foreseen or
unforeseen closure of plants. These agreements between
suppliers often include gas sources in other Member
States owned by the groups,
to which the suppliers
belong.

(366) Despite

the

radius

economic

limited effective

for
trade
supplying industrial gases to the users thereof,
imports and exports of
statistics demonstrate that
industrial gases
to and from the Netherlands are
considerable. These concern almost exclusively sales and
swaps within industrial gases groups or between such
groups.

(370) The effect of

the infringements on trade between
Member States is all the more appreciable where, as in
the present case, all the undertakings which took part in
the infringements are part of multinational groups
industrial and
which have production facilities
medical gases and sell those gases in several Member
States, including Belgium and Germany.

for

(367) Exports of argon (CN code 2804 21 00)

from the
Netherlands to Germany and the BLEU in 1994 to 1996
ranged from 12 000 to 21 000 tonnes and imports

(256) Judgment of the Court of First Instance of 12 July 2001 in Joined
Cases T-202/98, T-204/98 and T-207/98 British Sugar and others
v Commission, paragraph 78.

(257) Judgment

in Case T-13/89,

Imperial Chemical

Industries v

Commission [1992] ECR II-1021, paragraph 304.

(371) This is because the multinational groups in question
form an economic unit, which means that all changes in
their competitive position in one Member State will
have an effect on the position of the groups as a whole.
Purely in terms of
flows within a group,
improvements in the profitability of its Dutch branch
are likely to affect trade because of changes in dividend

financial

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payments or investment funds needed (258). The sale of
AGA’s Belgian cylinder gas business to Air Liquide’s
Belgian branch in 1994 and the sale of Air Liquide’s
cylinder gas branch in Austria to AGA,
in that same
year demonstrate how the profitability of branches has
implications for the group as a whole and therefore
needs to be assessed in a European context. Other
examples can be found in the instructions from group
head-offices to their Dutch branches, which underline
the strategic importance of supplies to important clients
in the Netherlands for the situation of the groups as a
whole. Indeed, some very large clients coordinate their
purchases of liquid industrial gases on a European level.

(375)

against

retaliation

competitors which

(372) The multinational nature of the industrial gases groups
is also important because, as has been shown in the
analysis of the market structure in Part I section A.5(c)
there is abundant information in the Commission’s file
that
(cid:145)steal(cid:146)
customers by undercutting prices is a normal feature in
the industrial gases industry. There is also evidence that
such retaliation is not necessarily confined to the
Member State or region where the (cid:145)aggression(cid:146) was
committed. On the
contrary, many undertakings
consider such retaliation most effective if carried out on
a broad basis, preferably on the home market of the
(cid:145)aggressor(cid:146) in question. Therefore, an undertaking in the
industrial gases
in the Netherlands which
participated in the infringements and failed to respect
agreements depicted in this Decision risked
the
retaliation not only in the Netherlands but
in other
Member States as well.

sector

the conduct

States but rather must establish that
is
capable of having such an effect. The fact that industrial
gases are traded between Member States, whether
between competitors or between sister companies of the
same group, has a direct bearing on the fact
that
anti-competitive behaviour on one market is capable of
affecting trade between Member States.

of

to

to

are

the

gases

relating

addition

industrial

arguments

compete with
active

In
the
multinational character of the groups in question, the
Commission also notes that the vast majority of the
themselves
purchasers
their
manufacturing companies, which either export
the
imports within
products
or
Netherlands. They are
such as
in sectors
shipbuilding, food, chemicals, electronics, etc. Practically
all manufacturing companies in the Netherlands which
depend on industrial gases are likely to be injured by
infringements such as those described in this Decision.
This is because the undertakings participating in those
infringements account for more than 80 % of supply of
the gases in question in the Netherlands. Because these
undertakings belong to multinational groups with
national subsidiaries, even customers located in border
regions
in the Netherlands are unable to turn to
suppliers in a neighbouring Member State belonging to
the same groups. For those reasons the effect of the
infringement on trade between the Netherlands and
other Member States must also be deemed to extend to
the sectors in which the purchasers of industrial gases
are active.

(373)

In its reply to the statement of objections (259), Air
Liquide argues that the fact that the parties belong to
multinational groups has no bearing on the effect of the
alleged infringements on trade between Member States.
the
The Commission therefore needs to prove that
trade
alleged
do.
between Member
Furthermore, Air Liquide
fact
retaliation against competitors took place even in other
national markets illustrates a competitive behaviour on
the part of the companies concerned.

States, which it
considers

affected
fails
that

anti-competitive

behaviour

to
the

(376) The Commission finally notes that

two independent,
smaller suppliers of industrial gases located in Belgium,
ACP and IJsfabriek Strombeek, both sell small quantities
of
in the Netherlands
competing with the undertakings to which this Decision
is addressed (260).

liquid and cylinder gases

(377) For all

those reasons it can be concluded that

the
infringements described in this Decision had or were
effect on trade
capable of having an appreciable
the infringements
between Member States and that
concerned therefore fall under Article 81(1) of
the
Treaty.

(374) The Commission has no obligation to demonstrate the
the agreements on trade between Member

effect of

(258) See in this context the judgment of the Court in Case 45/85
Verband der Sachversicherer v Commission [1987] ECR 447,
paragraph 48.

(259) File AL, non-confidential reply to the statement of objections,

E. APPLICABILITY OF LIMITATION PERIODS

(378) Pursuant to Article 1 of Council Regulation (EEC) No
2988/74 of 26 November 1974 concerning limitation

point V.4.

(260) See, for example, file AGA, p. 4934.

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periods in proceedings and the enforcement of sanctions
under the rules of the European Economic Community
relating to transport and competition (261), the power of
the Commission to impose fines or penalties for the
type of infringements concerned in the present case is
subject to a limitation period of five years. The period
starts to run on the day the infringement is committed.
For continuing infringements, the limitation period only
begins to run on the day the infringement ceases.

(379) Pursuant to Article 2 of Regulation (EEC) No 2988/74
any action taken by the Commission for the purpose of
the preliminary investigation or proceedings in respect
of an infringement shall interrupt the limitation period.
After each interruption time begins running afresh. The
Commission proceedings
surprise
investigations pursuant to Article 14(3) of Regulation
No 17 on 11 December 1997.

started with the

(380) As has been shown in Part

I of

the
Commission has a body of documentary evidence for
most of
the companies concerned from 1989 until
1991 and from September 1993 until the inspections
took place in December 1997.

this Decision,

1991 to 1993 regarding
contractual
conditions. Therefore Hoek Loos states that enforcement
by the Commission is time-barred for the time prior to
December 1992.

other

the

that

(384) Air Products also claims (264)
the Commission
adduces no evidence that all
the infringements took
place and were continued over the entire period of
in the
1989 to 1997. There
Commission’s file demonstrating an involvement by Air
Products in 1992 until end 1993. Generally there is
again evidence as of December 1993. Therefore, Air
Product also claims that in conformity with the statute
of limitation, the Commission cannot impose a fine for
the infringements of 1989 to 1991.

evidence

is no

(385) Air Liquide agrees with the time bar the Commission
accepted as far as the price list for liquid gases of 1990
is concerned. Air Liquide also points out (265) that there
is a gap in the factual evidence in the period between
June 1991 and June 1993.

(386) Messer claims (266)

that a continuous

infringement
cannot be shown and that all separate infringements
before 11 December 1992 are subject to prescription.
The Commission therefore can only impose a fine as far
as the period 1993 to 1997 is concerned.

(381)

In their reply to the statement of objections, AGA, Hoek
Loos, Air Products, Air Liquide and Messer submitted
the Commission lacked enough documentary
that
evidence
regarding the period between 1991 and
1992/93. As a consequence the alleged infringements
which had taken place before December 1992 should
be time-barred as they go back more than five years
before the inspections took place.

(382)

In particular, AGA contends (262)
that prescription
should not only apply to the 1990 list of minimum
prices for bulk, as already accepted by the Commission
in the statement of objections, but also to the 1990
tank rental for bulk, the 1990 minimum transport cost
for cylinder gases, the 1990 agreement on cylinder rent,
the initial agreement on minimum prices and the 1990,
1991 and 1992 agreements to increase prices.

(387) The Commission takes note of the arguments made by
limitation period. The
the
the parties as
regards
Commission recognises
limitation period
the
that
applies in this particular case, as it does not have
enough elements
in its possession to establish the
existence of one single continuous infringement from
1989 to 1997.

(388) Therefore, notwithstanding the fact that the Commission
has identified an infringement for the period 1989 to
1991, the Commission will only take the infringement
over the period September 1993 to December 1997
into consideration for the calculation of the fines.

(383) Hoek Loos claims (263) that there is a gap in evidence
for the period 1992 to 1994 regarding the agreements
on price increases,
the period 1991 to 1993
regarding the moratorium, for the period 1992 to 1994
regarding minimum cylinder prices, and for the period

for

F. DURATION OF THE INFRINGEMENT

(389)

In view of the Commission’s position on the issue of
limitation periods in the present case, the Commission

(261) OJ L 319, 29.11.1974, p. 1.
(262) File AGA, non-confidential reply to the statement of objections,

(264) File AP, non-confidential reply to the statement of objections,

pp. 20 to 21.

(265) File AL, non-confidential reply to the statement of objections,

point V, pp. 15 to 24.

pp. 20 and 21.

(263) File HL, non-confidential reply to the statement of objections,

(266) File MN, non-confidential reply to the statement of objections,

pp. 5 to 9.

p. 32.

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will take September 1993 as the starting date of the
infringement into consideration for the application of
the fines.

(g) collusive arrangements regarding the tank rent paid
by liquid gas customers from January 1997 until
December 1997, which is the end of the year for
which the proposal for an agreement on tank rent
was made.

(390) No date can be established for the end of the cartel, but
the Commission has a strong body of documentary
evidence up to the inspection in December 1997.
Following the inspections, most undertakings assured
instructions had been
internal
the Commission that
given to bring an end to any infringements of
Community competition law. For
the purposes of
assessing fines,
the Commission will proceed on the
assumption that the cartel ended in December 1997.

(391) The participation of each company separately in the

infringement is therefore established as follows:

1. HOEK LOOS, AGA, AIR LIQUIDE, AIR PRODUCTS AND

MESSER

(392) Hoek Loos, AGA, Air Liquide, Air Products and Messer
agreements/concerted

following

in the

took part
practices:

(a)

fixing price increases from December 1993 until
December 1997, which is the end of the year for
which the
to be
implemented;

increases were

last price

2. WESTFALEN

(393) Westfalen

took
agreements/concerted practices:

part

in

the

following

(a)

fixing price increases
from October 1994 until
December 1995, which is the end of the year for
which the price increases were to be implemented;

(b) fixing moratorium periods from October 1994 until
January 1995 in order to implement the above price
increases;

(c)

fixing minimum prices
from March 1994 until
December 1995, which is the end of the year for
which the minimum prices were agreed upon.

3. BOC

(394) BOC took part in the following agreements/concerted

practices:

(b) fixing moratorium periods from December 1993
until March 1997 in order to implement the above
price increases;

(a)

from October 1994 until
fixing price increases
December 1995, which is the end of the year for
which the price increases were to be implemented;

(c)

fixing minimum prices
from March 1994 until
December 1997, which is the end of the year for
which the last minimum prices were agreed upon;

(d) fixing cylinder transport charges from June 1994
(Messer from January 1996) until December 1997,
which is the end of the year for which the last
cylinder transport charges were agreed upon;

(e)

(f)

fixing the minimum rent for cylinders from June
1994 until December 1997, which is the end of the
year for which the last minimum rent for cylinders
was agreed upon;

fixing an environmental and safety charge for
cylinders from September 1993 until October 1995,
that
is the month in which the first company
(Messer) independently raised the environmental and
safety charge from the level agreed on in 1993 to a
higher level;

(b) fixing moratorium periods from October 1994 until
January 1995 in order to implement the above price
increases;

(c)

fixing cylinder transport charges from June 1994
until December 1994, which is the end of the year
for which cylinder transport charges were agreed
upon;

(d) fixing the minimum rent for cylinders from June
1994 until December 1994, which is the end of the
year
in the
arrangement.

in which BOC at

took part

least

G. ADDRESSEES OF THE DECISION

(395)

In order to identify the addressees of this Decision, it is
necessary to determine the legal entities responsible for
the infringement.

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(396)

It is established by the facts as described in Part I that
NV Hoek Loos, Air Liquide BV, Air Products Nederland
BV, Messer Nederland BV and Westfalen Gassen
Nederland BV have directly participated in the collusive
arrangements regarding medical and industrial gases in
the Netherlands. Consequently each company will bear
responsibility for its respective infringements and is
therefore an addressee of this Decision.

that

the defence of

(397) As regards Air Products Nederland BV, the Commission
the latter company was
notes
handled by Air Products Europe
Inc, which had
expressly requested to receive all correspondence in the
present case and which also replied to the statement of
objections and took part in the oral hearing on behalf
of Air Products Nederland BV. Furthermore, by letter of
13 June 2002, Air Products Nederland BV formally
renounced the dispatch of a statement of objections
addressed to itself in the present case.

(398)

In the case of BOC, the BOC Group is held liable for
the infringement of its subsidiaries in the BOC Gases
Benelux undertaking, as identified in this Decision. The
statement of objections had already been addressed to
the BOC Group and this Decision is also addressed to
the BOC Group.

(402)

forming the BOC Gases Benelux undertaking, as referred
to in recitals 36 to 38, were wholly owned subsidiaries
of the BOC Group. A representative of the BOC Group
legal department was present on 24 March 1998 during
when the Commission services carried out an inspection
at BOC NV pursuant to Article 14(2) of Regulation No
17 (268) and all subsequent correspondence from the
Commission services to BOC Gases Benelux was copied
to that representative. When the General Manager of
left his position, BOC
BOC Gases Benelux, Mr Celis,
informed the
Gases Benelux’s external
Commission services
that Mr Celis was no longer
responsible for BOC’s Benelux operations and that all
future correspondence regarding the investigation could
be sent to that legal counsel. The latter counsel, who
acted for BOC Gases Benelux during and after the
Commission’s
inspection, also represented the BOC
Group in order to reply to the statement of objections.
Furthermore, the Commission notes that the same Mr
Celis, who had personally attended some of the cartel
meetings identified in this Decision, subsequently took
up another position within the BOC Group of
companies.

legal counsel

In addition, after the BOC Group’s gases operations in
the Benelux were sold to Air Liquide, the BOC Group
remained the Commission’s sole interlocutor concerning
the alleged infringements of BOC Gases Benelux on the
Dutch market (269). The BOC Group also replied in
substance to the Commission’s objections as regards the
behaviour of
the
material time.

the BOC Group’s

subsidiaries at

(399)

there is no evidence that

In its reply to the statement of objections (267), BOC
submits
the only
that BOC Gases Benelux was
undertaking within the BOC Group with responsibility
industrial gases in the
for the production or sale of
Netherlands and that
the
Group’s headquarters in the United Kingdom were made
aware of the alleged infringements at the time. BOC
acted
further
autonomously in the period 1989 to 1997 and that on
this basis it would have been more appropriate for the
statement of objections to have been addressed to Air
Liquide, which acquired the BOC Group’s
gases
operations in the Benelux in late-1998 and is therefore
the successor to that undertaking.

that BOC Gases Benelux

submits

(400) At the oral hearing, Air Liquide pointed out that the
Commission was right to have sent the statement of
objections
to BOC Group since the period under
investigation predated the sale of BOC Gases Benelux to
Air Liquide.

(401)

the
In this regard,
material time BOC Gases Benelux and the companies

it must be pointed out

that at

(267) File BOC, non-confidential reply to the statement of objections,

p. 18.

(403) On the basis of the above, the Commission finds that
the BOC Group can be held responsible for the conduct
of its subsidiaries throughout the infringement period.

the infringements

(404) As regards AGA, the Commission holds AGA Gas BV
responsible for
identified in this
Decision and has addressed the statement of objections
to that company. As explained under Part
I, section
A.2(b) above, AGA Gas BV has undergone a series of
structural changes resulting in this company being first
demerged
entities.
into
Subsequently, the remainder of its Dutch activities were

separate

2000

two

in

(268) See recital 88 and File BOC, p. 3576.
(269) BOC’s external

the completion of

legal counsel informed the Commission services
of
the BOC Group’s gases
the sale of
operations in the Benelux to Air Liquide by letter of 20 January
1999, File BOC, p. 6487.

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acquired in 2001 by Hoek Loos for the liquid business
and by Air Products for the cylinder business. The latter
transaction was only completed in August 2001, after
the dispatch of
the statement of objections to the
parties.

(405)

its then subsidiary.

In view of the fact that AGA Gas BV had ceased to exist
in law, AGA AB replied to the statement of objections
in substance, on behalf of
In its
to
reply, AGA AB expressly stated its willingness
assume responsibility vis-(cid:224)-vis the Commission for AGA
Gas BV’s infringements (270),
in view of the fact that
AGA Gas BV’s behaviour cannot remain unaccounted
the
for.
Commission shares the approach taken by AGA AB.
Furthermore, AGA AB, by letter dated 13 June 2002,
formally renounced the dispatch of a statement of
objections addressed to itself in the present case. This
Decision is therefore addressed to AGA AB as successor
of AGA Gas BV.

In the specific circumstances of

this case,

fines from EUR 1 000 to EUR 1 million, or a sum in
excess thereof not exceeding 10 % of the turnover in
the preceding business year of each of the undertakings
participating
either
intentionally or negligently, they infringe Article 81(1)
of the Treaty.

infringement where,

the

in

(410)

regard

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

circumstances
and duration of

to
to the

relevant

gravity

all

(411) 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
the Notice on the
and will apply, as appropriate,
non-imposition
cartel
cases (271).

the Commission will

reduction

reflect

fines

or

of

in

H. REMEDIES

(b) The amount of the fines

1. ARTICLE 3 OF REGULATION NO 17

(406) Where the Commission finds an infringement of Article
the Treaty it may require the undertakings
to an end in

81(1) of
concerned to bring such infringement
accordance with Article 3 of Regulation No 17.

(412) The cartel constituted a deliberate infringement of
Article 81(1) of the Treaty. With full knowledge of the
restrictive character of their actions and, moreover, of
their illegality, the leading suppliers combined to agree
on prices and a set of trading conditions in order to
restrict competition in a significant industrial sector.

(407) While

some

undertakings

the
Commission that steps have been taken to ensure that
their representatives no longer attend anti-competitive
meetings,
it is not known whether such meetings or
other collusion between firms have in fact ever ceased.

informed

have

(i) The basic amount

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

and duration of the infringement.

(408)

It is therefore the intention of the Commission not only
to find that an infringement has been committed but
also to require the undertakings to terminate the said
infringement.

Gravity

2. ARTICLE 15(2) OF REGULATION NO 17

(414)

In its assessment of the gravity of the infringement, the
its actual
Commission takes account of
impact on the market, where this can be measured, and
the size of the relevant geographic market.

its nature,

(a) General considerations

N a t u r e o f t h e i n f r i n g e m e n t

(409) Under Article 15(2) of Regulation no 17,

the
Commission may by decision impose upon undertakings

(415)

follows from the facts described that

the present
It
infringement
increases,
in
minimum prices and other trading conditions, which

consisted

fixing

price

(270) File AGA, non-confidential reply to the statement of objections,

p. 4.

(271) OJ C 207, 18.7.1996, p. 4.

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are by their very nature the worst kind of infringements
of Article 81(1) of the Treaty.

(416) The cartel arrangements involved all major operators in
the Dutch market and were conceived at senior level in
each participating company. By its very nature,
the
implementation of a cartel agreement of
the type
described leads automatically to a significant distortion
of
to
producers participating in the cartel and is highly
detrimental to customers and, ultimately, to the general
public.

competition, which is of

exclusive benefit

which might have been applied in the absence of these
arrangements. Indeed, this cannot always be measured
in a reliable manner, since a number of external factors
may simultaneously have affected the price development
of the product, thereby making it extremely difficult to
draw conclusions on the relative importance of all
possible causal factors.

(421) The Commission concludes that it is inconceivable that
the parties would have repeatedly agreed to meet in
order
to fix price increases, minimum prices and
minimum trading conditions over such a long period,
they had
having regard to the risks
perceived the cartel as having no impact or only a
limited impact on the market for industrial and medical
gases in the Netherlands.

involved,

if

(417) The Commission therefore considers that the present
infringement constituted by its nature a very serious
infringement of Article 81(1).

T h e a c t u a l i m p a c t o f t h e i n f r i n g e m e n t

T h e s i z e o f t h e r e l e v a n t g e o g r a p h i c m a r k e t

(418)

In their replies to the statement of objections, AGA and
Hoek Loos argue that there was an erosion of prices for
cylinder and liquid gases in the Netherlands in the years
1990 to 1999 and submitted a study (272) which
generally shows this trend. In addition, these companies
argue that there has always been strong competition on
the Dutch market, with fluctuating market shares for
the
confirmed by the Dutch
Competition
authority, Nederlandse Mededingings-
autoriteit, in its decision on Air Products/AGA ransfer
of 6 August 2001, annexed to the replies of AGA, Hoek
Loos and Messer to the Commission’s objections.

existing players,

as

(419) AGA and Hoek

Loos

further

contend (273)

that
termination of
their participation in anti-competitive
activities had no influence on the development of prices
and fluctuation of market
shares, contrary to the
Commission’s assertions in the statement of objections,
a fact which shows that
the alleged anti-competitive
behaviour had no effect on the market.

(420) The Commission notes that there is no need to quantify
in detail the extent to which prices differed from those

(422) The infringement was committed by undertakings,
which during the material period covered on average
over 90 % the Netherlands market for industrial and
medical gases in cylinders and bulk. As they were
confined to the Netherlands and to a sector of medium
agreements
economic
produced their effect within a limited part of
the
common market only.

importance,

however,

the

(423)

the market,

the Commission concludes

In the above circumstances (limited geographical scope
and sector of medium economic
of
importance),
the
agreements and/or concerted practices concerned by
these proceedings constitute a serious infringement of
the Community competition rules rather than a very
serious infringement.

that

(424) The situation in the present case is comparable to the
situation in recent cases where the Commission decided
to take the category (cid:145)serious(cid:146) instead of (cid:145)very serious(cid:146) in
price fixing cartel cases with limited geographical scope.
In the British Sugar case (274) the Commission accepted
the relevant market
the limited geographic scope of
(Great Britain) as one possible argument to reduce the
gravity of an infringement. The Commission decided
similarly in the Greek Ferries case (275), where it argued
the infringement produced its effects within a
that

(272) Market of analysis

cylinder gases 1990 to 1999 in the

Netherlands, Annex 14 of AGA’s non-confidential reply.

(274) Commission Decision of 14 October 1998, OJ L 76, 22.3.1999,

(273) File AGA, non-confidential reply to the statement of objections,
pp. 27 to 29 and File HL, non-confidential reply to the statement
of objections, paragraphs 35 to 37.

p. 1.

(275) Commission Decision of 9 December 1998, OJ L 109, 27.4.1999,

p. 24.

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market (all Greece-Italy Adriatic Sea routes) which was
the
to
small
still
Community.

other markets

compared

in

(425) Nevertheless, it has to be noted that the Commission is
under no obligation to deviate from the rule that a price
cartel is by its very nature a (cid:145)very serious infringement(cid:146)
if the geographic scope of the relevant market is limited.
In the SAS-Maersk case (276) the Commission saw an
important difference to the Greek Ferries case in the fact
that
the SAS/Maersk Air market-sharing affected not
only the three routes for which infringements were
found but restricted competition on all routes to/from
including the routes between
and within Denmark,
Denmark and the other Member States
and the
members of
the Commission
assumed that the repercussions of the infringement were
felt throughout the EEA and beyond, unlike the Greek
Ferries case and unlike the present case.

the EEA. Therefore

conviction that

the banking sector

(427) Similarly, in the Austrian Banks case (278), the cartel was
(cid:145)very serious(cid:146) although the price-fixing
described as
agreement between the eight Austrian banks ((cid:145)Lombard
Club(cid:146)) was limited to the Austrian bank sector. In its
classification of that case the Commission was guided
is of
by the
outstanding importance for consumers, businesses and
therefore for the economy as a whole. Furthermore, the
cartel network was
its
contents, fixing interest rates for loans and savings, for
private/household and for commercial customers as well
as the fees customers had to pay for certain services,
was highly institutionalised and covered the entire
country down to the smallest village. Finally,
the
economic importance of the market concerned is even
more significant in that case than in the Belgian Beers
case mentioned above.

comprehensive

regards

as

C o m m i s s i o n ’ s f i n d i n g s c o n c e r n i n g t h e
g r a v i t y o f t h e i n f r i n g e m e n t

(428)

the

In the above circumstances, the Commission concludes
practices
that
concerned in this proceeding constitute a serious
infringement of the Community competition rules.

agreements

concerted

and/or

Classification of cartel participants

(429)

In the circumstances of this case, which involves several
it will be necessary in setting the basic
undertakings,
the specific
the fines to take account of
amount of
weight and therefore the real impact of the offending
conduct of each undertaking on competition. For this
purpose the undertakings concerned can in principle be
divided into four categories established according to
their relative importance in the market concerned.

(430) As

for

the

the basis

comparison of

the relative
importance of an undertaking in the market concerned,
the Commission considers it appropriate to take in the
present case the products’ turnover in the Netherlands.
This approach is supported by the fact that this cartel is
limited to the Netherlands, the principal object of which
was
increases,
minimum prices and trading conditions for cylinder and
liquid gases on that market. The comparison is made on
the basis of the product turnovers in the Netherlands in
the last complete year before the
1996, which is
inspections took place. Table 1 in recital 75 provides
the relevant figures.

inter alia to agree

concerted price

(426)

the

and

personal

involvement

In the Belgian Beers case (277) the Commission decided
to maintain the category (cid:145)very serious(cid:146) as well although
the price fixing and market sharing cartel between
Interbrew and Danone/Alken-Maes was limited to the
Belgian beer sector. Amongst the special features in that
case were the threats by Danone to retaliate against
Interbrew in France (taken into account as aggravating
circumstance)
of
Interbrew’s, Alken-Maes’ and Danone’s top managers at
the time. The CEOs themselves and other top managers
of the companies met regularly to initiate and monitor
the illicit arrangements. This fact gives the case a more
global relevance when considering that Interbrew is the
number
in the world and Alken-Maes’
mother company Danone a leader in the world food
in the present case the
industry. Unlike the above,
Commission assumes
arrangements
the
that
between the companies were decided predominantly on
the relevant
the level of
the Dutch subsidiaries of
groups.
is
sector
economically much more significant (a final consumer
product sector of a value several times that of the Dutch
industrial gases market) than the relevant market in the
present case, and all the segments of this sector were
involved (all
as
types of beer, horeca
through many competition parameters
distribution),
investments, publicity, pricing
(price, promotions,
structure and exchange of sales figures).

the Belgian beer

Furthermore,

two brewer

as well

illicit

(276) Commission Decision of 18 July 2001, OJ L 265, 5.10.2001,

p. 15.

(277) Commission Decision of 5 December 2001, not yet published.

(278) Commission Decision of 11 June 2002, not yet published.

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(431) Hoek Loos and AGA are by far the two largest players
on the markets concerned and will therefore be placed
in the first category. Air Products and Air Liquide,
which were medium-sized operators on the markets
concerned, will constitute the second category. Messer
and BOC, which are significantly smaller on the markets
concerned, will be placed in the
third category.
Westfalen, which has an extremely small share of the
markets
fourth
concerned, will be placed in the
category.

(432) On that basis, the Commission sets the amount of the

fines determined for gravity as follows:

(cid:151) AGA EUR 10 million,

(cid:151) Air Liquide EUR 2,6 million,

(e)

fixing the minimum rent for cylinders from June
1994 until December 1997;

(f)

fixing an environmental and safety charge for
cylinders from September 1993 until October 1995;

(g) collusive arrangements regarding the tank rent paid
by liquid gas customers from January 1997 until
December 1997.

(436) Westfalen

took
agreements/concerted practices:

part

in

the

following

(a)

fixing price increases
December 1995;

from October 1994 until

(b) fixing moratorium periods from October 1994 until

(cid:151) Air Products EUR 2,6 million,

January 1995;

(cid:151) BOC EUR 1,2 million,

(cid:151) Hoek Loos EUR 10 million,

(cid:151) Messer EUR 1,2 million,

(cid:151) Westfalen EUR 0,45 million.

Duration of the infringement

(433) The Commission has found that Hoek Loos, AGA, Air
Products, Air Liquide and Messer infringed Article 81(1)
the Treaty from September 1993 until December
of
1997. Westfalen from March 1994 until December
1995 and BOC from June 1994 until December 1995.

(434) The Commission concludes that the infringement was of
every

to four

years)

for

medium duration (one
undertaking involved.

(c)

fixing minimum prices
December 1995.

from March 1994 until

(437) BOC took part in the following agreements/concerted

practices:

(a)

fixing price increases
December 1995;

from October 1994 until

(b) fixing moratorium periods from October 1994 until

January 1995;

(c)

fixing cylinder transport charges from June 1994
until December 1994;

(d) fixing the minimum rent for cylinders from June

1994 until December 1994.

Conclusion on the basic amounts

Participation for each individual company

(438) The Commission accordingly sets the basic amounts of

the fines as follows:

(435) Hoek Loos, AGA, Air Liquide, Air Products and Messer
agreements/concerted

following

in the

took part
practices:

(a)

fixing price increases from December 1993 until
December 1997;

(cid:151) AGA EUR 14 million,

(cid:151) Air Liquide EUR 3,64 million,

(cid:151) Air Products EUR 3,64 million,

(b) fixing moratorium periods from December 1993

until March 1997;

(cid:151) BOC EUR 1,38 million,

(c)

fixing minimum prices
December 1997;

from March 1994 until

(d) fixing cylinder transport charges from June 1994
(Messer from January 1996) until December 1997;

(cid:151) Hoek Loos EUR 14 million,

(cid:151) Messer EUR 1,68 million,

(cid:151) Westfalen EUR 0,51 million.

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(ii) Attenuating circumstances

Exclusively passive role in the infringement

(439) BOC claims that it only had a passive involvement in
the infringements and did not hold any bilateral
meetings. In this regard, BOC Gases Benelux’s manager
at the material time, made a declaration that he had
been taken by surprise at the meeting of October 1994
when the subject of price increases came up (279).

(440) The Commission takes into account that BOC played an
exclusively passive role in the infringement and that it
did not participate in all the different aspects of the
infringement. Therefore the Commission concludes that
these attenuating circumstances justify a decrease of
15 % in the basic amount of the fine to be imposed on
BOC.

(441) Westfalen argues that

it had a passive role in the
infringement only as it denies having known in advance
that anti-competitive questions would be raised at the
VFIG meetings of October and November 1994, as the
proposed agendas did not mention these subjects.
Westfalen argues that it did not take part actively in
those discussions and that
it expressed its
disbelief in coordination of prices at the VFIG meetings
the
induced the main undertakings at
cartel to meet outside the VFIG framework. They did so
as from the beginning of 1995.

the origin of

the fact

(442) The Commission takes

into account

that Westfalen
played an exclusively passive role in the infringements
and did not participate in all the different aspects of the
infringement. The Commission concludes
these
attenuating circumstances justify a decrease of 15 % in
the basic amount of
the fine to be imposed on
Westfalen.

that

Non-implementation in practice of the offending agreements

(443)

it

In its reply to the statement of objections, Air Liquide
followed an autonomous commercial
argued that
policy on the market and was not
influenced by
agreements with its competitors, to which it never made
any commitments. This company provided evidence
that
different
prices/conditions than those agreed upon or did not
respect the moratorium periods.

occasions

applied

several

at

it

(444) Messer argued that since it was a newcomer at the time,
it was under pressure from its competitors that it gave

(279) See recital 142.

agreeing

impression

them the
certain
of
anti-competitive practices (280). Messer should therefore
be considered a victim of circumstances. Furthermore,
Messer never implemented the agreements and always
pursued a very competitive autonomous policy in the
market.

to

(445) BOC argued that

there
the

it
and
implemented any of
provides
that BOC in fact applied different price
increases/trading conditions than the ones discussed and
did not respect the moratorium period in 1994/1995.

is no evidence
alleged agreements

that

(446) Westfalen argued that

it had always been a very
competitive market player, that it was not interested in
the
colluding with
announcements
forthcoming
price increases or minimum prices/trading conditions
were not binding promises and were not implemented
on the market.

and
it made concerning its

players

other

that

(447) The Commission notes

the implementation of
that
agreements on price increases or minimum prices/trade
conditions does not necessarily require that these exact
prices/conditions be applied. The fact that undertakings
which have been proved to have participated in
conditions with their
collusion on prices/trading
competitors did not behave on the market
in the
manner agreed with their competitors is not necessarily
a matter which must be taken into account as a
mitigating circumstance when determining the amount
of the fine to be imposed. Undertakings which despite
colluding with their competitors follow a more or less
independent policy on the market may simply be trying
to exploit the cartel for their own benefits (281).

(448) The Commission further notes that in Part I of this
Decision, elements of proof were adduced that several
agreements were in fact
implemented by the cartel
participants.

(iii) 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)

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

(280) File MN, non-confidential reply to the statement of objections,

p. 30.

(281) Case T-308/94 Cascades SA v Commission [1998] ECR II-925,

paragraph 230.

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(cid:151) AGA EUR 14 million,

(cid:151) Air Liquide EUR 3,64 million,

(cid:151) Air Products EUR 3,64 million,

(cid:151) BOC EUR 1,17 million,

(cid:151) Hoek Loos EUR 14 million,

(cid:151) Messer EUR 1,68 million,

(cid:151) Westfalen EUR 0,43 million.

from a non-imposition of a fine or a very substantial
reduction in its amount. These conditions are not met
this
in the present case as none of addressees of
Decision
the
about
the
infringement before the Commission undertook an
investigation of the enterprises involved.

Commission

informed

(453)

If an undertaking complies with all the conditions set
out in Section C of the Leniency Notice it will benefit
from a substantial reduction in a fine. These conditions
are not met in the present case, as the investigation
ordered by decision on the premises of the parties of
the cartel has not failed to provide sufficient grounds
for initiating the procedure leading to a decision.

(450) However, since the final amounts calculated according
to that 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) (282), the fines will
be set as follows:

Significant reduction of a fine

(cid:151) AGA EUR 5,54 million,

(cid:151) Air Liquide EUR 3,64 million,

(cid:151) Air Products EUR 3,64 million,

(cid:151) BOC EUR 1,17 million,

(cid:151) Hoek Loos EUR 14 million,

(cid:151) Messer EUR 1,12 million,

(cid:151) Westfalen EUR 0,43 million.

(iv) Application of the Commission’s Leniency

Notice

(451) The 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 described in the Commission’s
Leniency Notice.
the legitimate
expectations of the undertakings concerned as to the
non-imposition or reduction of the fines on the basis of
their cooperation,
the Commission examines in the
following section whether the parties concerned satisfied
the conditions set out in the notice.

In order

to meet

(454) Under Section D of the Leniency Notice an undertaking
which does not comply with all the conditions set out
in Sections B or C can still benefit from a significant
the fine that would
reduction of 10 % to 50 % of
otherwise have been imposed if it had not cooperated
where (for example):

(cid:151) before a statement of objections is sent, it provides
the Commission with information, documents or
other
to
establishing the existence of the infringement;

evidence which materially contribute

(cid:151) after receiving a statement of objections, it informs
the Commission that
substantially
contest the facts on which the Commission bases its
objections.

it does not

(455)

for

In addition to strictly replying to the Commission’s
information, AGA provided evidence
requests
time to which the
originating from the period of
infringement pertains and admitted that one of
its
executives attended meetings with competitors in Breda
and Barendrecht (283) before the statement of objections
was dispatched.

Non-applicability of Sections B and C of the Notice

(452)

If an undertaking complies with all the conditions set
out in Section B of the Leniency Notice it will benefit

(456) Air Products also provided comprehensive explanations
on the documents taken at the Commission’s inspection
and admitted that
inappropriate contacts had taken
place between competitors on the Dutch market (284)
before the statement of objections was dispatched.

(282) As AGA AB is held liable for its former subsidiary AGA Gas BV,
the amount has been reduced to 10 % of the last turnover of the
subsidiary, see footnote 20.

(283) File AGA, pp. 6987 to 7014.
(284) See AP’s letter of 24.4.1998, File AP, p. 5818.

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(457) Furthermore, after receiving the Commission’s statement
of objections, AGA, Air Products, Hoek Loos and
Messer pleaded for a significant reduction in fines for
not contesting the facts.

Gassen Nederland BV have infringed Article 81(1) of
the
Treaty by participating in a continuing agreement and/or
concerted practice in the sector of industrial and medical gases
in the Netherlands.

Conclusion on the application of the Leniency Notice

(cid:151) Air Products Nederland BV

(458) Those considerations justify a reduction of the fines by
25 % for AGA and Air Products and by 10 % for Hoek
Loos and Messer.

(459)

their
In conclusion, with regard to the nature of
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 to
their respective fines:

(cid:151) AGA a reduction of 25 %

(cid:151) Air Products a reduction of 25 %

(cid:151) Hoek Loos a reduction of 10 %

(cid:151) Messer a reduction of 10 %.

(v) The final amounts of the fines imposed in the

present proceedings

(460)

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

the fines to be imposed, pursuant

to

(cid:151) AGA EUR 4,15 million,

(cid:151) Air Liquide EUR 3,64 million,

(cid:151) Air Products EUR 2,73 million,

(cid:151) BOC EUR 1,17 million,

(cid:151) Hoek Loos EUR 12,6 million,

(cid:151) Messer EUR 1 million,

(cid:151) Westfalen EUR 0,43 million.

The duration of the infringement was as follows:

(cid:151) AGA AB

(cid:151) Air Liquide BV

(cid:151) BOC Group plc

(cid:151) Messer Nederland BV

(cid:151) NV Hoek Loos

(cid:151) Westfalen Gassen
Nederland BV

from September 1993 until
December 1997,
from September 1993 until
December 1997,
from September 1993 until
December 1997,
from June 1994 until
December 1995,
from September 1993 until
December 1997,
from September 1993 until
December 1997,
from March 1994 until
December 1995.

Article 2

The undertakings named in Article 1 shall immediately bring
to an end the infringement referred to in Article 1, in so far as
they have not already done so. They shall refrain from any act
is the same as the
in object or effect,
or conduct which,
infringement or equivalent thereto.

Article 3

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

(cid:151) AGA AB

(cid:151) Air Liquide BV

(cid:151) Air Products Nederland BV

(cid:151) BOC Group plc

(cid:151) Messer Nederland BV

(cid:151) NV Hoek Loos

EUR 4,15 million,

EUR 3,64 million,

EUR 2,73 million,

EUR 1,17 million,

EUR 1 million,

EUR 12,6 million,

(cid:151) Westfalen Gassen Nederland BV

EUR 0,43 million.

HAS DECIDED AS FOLLOWS:

Article 4

Article 1

AGA AB, Air Liquide BV, Air Products Nederland BV, BOC
Group plc, Messer Nederland BV, NV Hoek Loos, Westfalen

The fines laid down in Article 3 shall be paid, within three
months of the date of notification of this Decision, into Bank
Account No 642-0029000-95 (Code SWIFT: BBVABEBB (cid:151)
code
European
Commission with Banco Bilbao Vizcaya Argentaria (BBVA) SA,
Avenue des Arts/Kunstlaan, 43, B-1040 Bruxelles/Brussels.

IBAN BE76 6420 0290 0095)

the

of

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that period,

After expiry of
interest shall automatically be
payable at the interest rate applied by the European Central
Bank to its main refinancing operations on the first day of the
month in which this Decision is adopted, plus 3,5 percentage
points, namely 6,75 %.

Article 5

This Decision is addressed to:

AGA AB
S-181-81 Liding(cid:246)

Air Liquide BV
De Witbogt 1
5652 AG Eindhoven
The Netherlands

Air Products Nederland BV
Klaprozenweg 101
Noordpoort 1033 NN
Amsterdam
The Netherlands

BOC Group plc
Chertsey Road
Windlesham
GU20 6HJ
Surrey
United Kingdom

Messer Nederland BV
Middenweg 17
4782 PM Moerdijk
The Netherlands

NV Hoek Loos
Havenstraat 1
Postbus 78
3100 AB Schiedam
The Netherlands

Westfalen Gassen Nederland BV
Rigastraat 20
7415 EW Deventer
The Netherlands.

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

Done at Brussels, 24 July 2002.

For the Commission

Mario MONTI

Member of the Commission