2005/471/EC: Commission Decision of 27 November 2002 relating to proceedings under Article 81 of the EC Treaty against BPB PLC, Gebrüder Knauf Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV (Case No COMP/E-1/37.152 — Plasterboard) (notified under document number C(2002) 4570)
Date: 2002-11-27
Institutions: European Commission
Subjects: building industry, building materials, fine, infringement procedure (EU), plaster, restriction on competition, unlawful agreement

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 27 November 2002

relating to proceedings under Article 81 of the EC Treaty against BPB PLC, Gebrüder Knauf
Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV
(Case No COMP/E-1/37.152 — Plasterboard)

(notified under document number C(2002) 4570)

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

(2005/471/EC)

the EC Treaty.

On 27 November 2002, the Commission adopted a decision relating to a proceeding under Article 81
of
In accordance with the provisions of Article 30 of Council Regulation (EC)
No 1/2003 (1) replacing Article 21 of Regulation No 17 (2), the Commission herewith publishes
the names of
the decision, having regard to the legitimate
interest of undertakings in the protection of their business interests. A non-confidential version of the
full text of the decision can be found in the authentic languages of the case and in the Commission’s
working languages at DG COMP’s website (http://europa.eu.int/comm/competition/index_en.html).

the parties and the main content of

I. SUMMARY OF THE INFRINGEMENT

2. Nature of the infringement

1. Addressees

(2)

(1)

The following undertakings are the addressees of this
Decision relating to the infringement of Article 81 of
the Treaty:

BPB, Knauf (3), Lafarge and Gyproc entered into and
participated without
interruption in a complex and
continuing agreement contrary to Article 81(1) of the
Treaty which was manifested in the following conduct
constituting agreements or concerted practices:

— BPB plc (hereinafter: BPB),

— Gebrüder Knauf Westdeutsche Gipswerke KG (here-

inafter: Knauf Westdeutsche Gipswerke),

— Société Lafarge SA (hereinafter: Lafarge),

— Gyproc Benelux NV (hereinafter: Gyproc).

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of
the Treaty (OJ L 1, 4.1.2003, p. 1). Regulation as
amended by Regulation (EC) No 411/2004 (OJ L 68, 6.3.2004,
p. 1).

(2) Council Regulation No 17 of 6 February 1962 (OJ 13, 21.2.1962,
p. 204/62) Regulation as last amended by Regulation (EC) No
1/2003.

the markets

— the representatives of BPB and Knauf met in London
in 1992 and expressed the common desire to
stabilise
(hereinafter:
the United Kingdom (hereinafter:
German market),
UK market), France (hereinafter: French market) and
the Netherlands, Belgium and Luxembourg (here-
inafter: Benelux market),

in Germany

— the representatives of BPB and Knauf established, as
from 1992,
information exchange arrangements, to
which Lafarge and subsequently Gyproc acceded,
relating to their
sales volumes on the German,
French, UK and Benelux plasterboard markets,

(3) ‘Knauf’ means all the companies in the Knauf group, see section

1.3.3.2.

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— the

representatives of BPB, Knauf

and Lafarge
exchanged information, on various occasions, prior
to price increases on the UK market,

— in view of particular developments on the German
market, the representatives of BPB, Knauf, Lafarge and
Gyproc met at Versailles in 1996, Brussels in 1997
and The Hague in 1998 with a view to sharing out or
at least stabilising the German market,

— the representatives of BPB, Knauf, Lafarge and Gyproc
exchanged information on various occasions and
concerted their action on the application of price
increases on the German market between 1996 and
1998.

3. Duration

(3)

The undertakings concerned participated in the infrin-
gements for the following periods:

— BPB:

from 31 March 1992,

at

the

latest,

to

25 November 1998,

— Knauf:

from 31 March 1992, at

the latest,

to

25 November 1998,

— Lafarge:

from 31 August 1992, at

the latest,

to

25 November 1998,

— Gyproc:

from 6 June 1996,

at

the

latest,

to

25 November 1998.

4. Procedural steps

(8)

(9)

(4)

(5)

(6)

out

premises

pursuant

inspections

On the basis of information received, the Commission
carried
to Commission
Decisions under Article 14(3) of Regulation No 17 at
the
between
of
Following these
November 1998 and July 1999.
inspections,
infor-
mation to certain undertakings in January,
July and
September 1999 and in March 2000.

the Commission sent

undertakings

requests for

several

On 18 April 2001, the Commission initiated proceedings
in this case and adopted a statement of objections against
five undertakings, namely: BPB, Knauf, Lafarge, Gyproc
and Etex SA. All the parties to which the statement of
objections
submitted written
comments in response to the objections raised by the
Commission. On 17 July 2001, a hearing took place in
which all of the undertakings participated.

been addressed

had

that

the evidence in its
The Commission considers
possession is insufficient to establish Etex SA’s invol-
vement in the single, complex and continuous infrin-
gement. Etex is
this
Decision.

therefore not an addressee of

5. Product and market

(7)

The product which is concerned in the instant case is
plasterboard. This is a manufactured product used as a

prefabricated construction material and consisting of a
sheet of gypsum plaster
sandwiched between two
sheets of paper or some other material. Plasterboard is
cut in various sizes and thicknesses and is typically used
as an internal lining for walls, to form internal partitions
inside buildings, as a roof lining and as a ceiling material
for residential, commercial and administrative premises.
Plasterboard is an attractive product
for the building
industry by virtue of its stability, durability, ease of appli-
cation, fire resistance and low cost. Plasterboard is also
an attractive product for consumers. It is largely used in
the construction of modern homes and for DIY. Plas-
terboard is
firms
concerned are house-hold names in several Member
‘placo-
States (one talks of buying ‘gyproc’
plâtre’ in France, etc.).

a well-known product

in Belgium,

and the

sales on the Benelux, French,
The annual value of
German and UK markets
covered by the present
Decision was some ECU 1 210 million in 1997 and
1998 for a sales volume of some 692 million square
metres in 1997 and some 710 million square meters
together accounted for
in 1998. The undertakings
nearly all plasterboard sales on the
four markets
concerned.

II. FINES

1. Basic amount

regard to all

In fixing the amount of any fine the Commission must
have
and in
relevant
particular the gravity and duration of the infringement,
which are the two criteria referred to expressly in Article
15(2) of Regulation 17.

circumstances

(a) Gravity

(10) Having regard to the nature of the conduct in question,
its practical impact on the plasterboard market and the
fact that it covered the four principal markets at the heart
of the European Community, the Commission considers
that the addressees of the instant Decision committed a
very serious infringement of Article 81(1) of
the EC
Treaty.

(b) Differential treatment

treatment

(11) Within the category of very serious infringements, the
to the
Commission may apply differential
undertakings concerned in order to take account of
their effective economic capacity to cause significant
damage to competition and in order to set the fine at
a level which ensures it has sufficient deterrent effect.
This is particularly necessary where, as in the present
case, there is considerable disparity between the sizes
the undertakings which participated in the infrin-
of
the
gement. To
their
companies

divides
into three groups on the basis of

the Decision

end

this

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respective market shares based on turnover from sales of
the product on the four markets concerned in the last
complete year of the infringement,
i.e. 1997: the first
group comprises BPB with a market share of some
the second group comprises Knauf and
[40-45] %;
Lafarge with market shares of some [25-30] % and
[20-25] % respectively; and the third group comprises
Gyproc with a market share of some [7-10] %.

(17)

(12)

(13)

(14)

(15)

(16)

the fines

to ensure that

In order
imposed have a
sufficient deterrent effect, and in view of its large size
and world-wide resources, the Decision applies a 100 %
for
multiplier to the starting amount of
Lafarge.

the fine set

(c) Duration

Knauf and BPB infringed Article 81(1) of the EC Treaty
from, at the latest, 31 March 1992 to 25 November
1998. Lafarge committed the same infringement from,
at the latest, 31 August 1992 to 25 November 1998.
Gyproc actively participated in the infringement from, at
the latest, 6 June 1996 to 25 November 1998.

In the case of Knauf, BPB and Lafarge the infringement
was thus of long duration (more than five years) and in
the case of Gyproc, the infringement was of medium
duration (between one and five years). The starting
amount of the fine determined for gravity is therefore
increased by 65 % for BPB and Knauf Westdeutsche
Gipswerke, by 60 % for Lafarge and by 20 % for Gyproc.

2. Aggravating circumstances

The Commission has previously adopted measures
imposing fines on BPB De Eendracht NV (1) (a member
of the BPB group, addressee of the draft Decision) for
having taken part
in the
cartonboard sector and on Lafarge SA (then known as
Lafarge Coppée SA) for having taken part in an illegal
agreement in the cement sector (2).

in an illegal agreement

The facts as set out in the Decision establish that BPB
and Lafarge actively continued to participate in a cartel in
abovementioned
the plasterboard
sector
these
that
Decisions were notified to them. The fact

after

the

(1) Commission Decision 94/601/EC of 13 July 1994 (Case
IV/C/33.833 — Cartonboard) (OJ L 243,19.9.1994, p. 1), relating
to a proceeding under Article 85 (now 81) of the EC Treaty imposed
a fine of ECU 1 750 000. On 14 May 1998, in Case T-311/94, the
Court of First Instance reduced the fine to ECU 750 000 (ECR 1998,
II-1129).

(2) Commission Decision 94/815/EC of 30 November 1994, Cases
IV/33.126 and 33.322 — Cement, (OJ L 343, 30.12.1994, p. 1),
relating to a procedure under Article 85 (now 81) of the EC Treaty
imposed a fine of ECU 22 872 000. On 15 March 2000, in Case T
43/95,
Instance reduced the fine to EUR
14 248 000 (ECR 2000, II-491).

the Court of First

undertakings have repeated the same kind of behaviour
in a different sector from the one concerned by the first
Decisions, shows that sanctions imposed in the first case
did not lead the undertakings to modify their conduct
and thus constitutes an aggravating circumstance.

Indeed,

the Commission considers

In the case of BPB, the fact that Decision 94/601/EC of
13 July 1994 was addressed to a subsidiary of BPB, BPB
the Commission
De Eendracht NV, does not prevent
from treating it as an aggravating circumstance in the
instant case.
that
since BPB De Eendracht NV was a subsidiary of BPB
PLC at the time of the earlier Decision, these in fact
form part of one and the same undertaking, within the
meaning of Article 81(1) of the Treaty. Furthermore, it is
the responsibility of an undertaking which is censured by
the Commission both to bring to an end the anti-compe-
titive conduct identified in the particular Decision which
is addressed to it and to bring its commercial policy
that
throughout
into
Decision. BPB did not do this,
the
opposite, as set out in the Decision (3). The mere fact
that an undertaking has already been the subject of an
infringement Decision and that, in spite of this finding
and of the fine imposed, it has continued to engage in
another analogous infringement in breach of the same
provision of the Treaty is sufficient to constitute reci-
divism.

line with
indeed quite

the Community

(18) With regard to the above aggravating factors, an increase
of 50 % of the basic amount of the fine for BPB and
Lafarge appears justified.

3. Attenuating circumstances

(19) Whilst Gyproc may be held responsible for the infrin-
gement as a whole for the period during which it was a
participant, that is from June 1996 to November 1998,
the available evidence shows that Gyproc was in an
objectively different situation from that of
the other
addressees of the Decision, such that the Commission
recognises that Gyproc did not play an identical role in
the agreement to that of the other undertakings. The
the
distinguishing
that: during a substantial
Commission are the fact
period of
in the agreement, Gyproc
its involvement
appears to have had difficulties in preventing BPB from
obtaining and transmitting information relating to it, as a
result of BPB’s being represented on Gyproc’s board of
directors; Gyproc was a constant destabilising element
and contributed to the limitation of the effects of the
agreement on the German market; and Gyproc was
absent from the UK market where the agreement most
frequently manifested itself.

circumstances

recognised

by

(20) Gyproc will therefore be granted a 25 % reduction of the
basic amount of the fine on the grounds of attenuating
circumstances.

(3) See also Commission Decision 2002/405/EC of 20 June 2001
the EC Treaty,

relating to a procedure applying Article 82 of
Michelin (OJ L 143, 31.5.2002, p. 1, recitals 361 to 363).

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(21)

(22)

4. Application of the Commission Notice on the
Non-imposition or Reduction of Fines in Cartel
Cases (the Leniency Notice): significant reduction in
the amount of the fine

the Commission adopted its

statement of
Before
objections, BPB and Gyproc provided it with information
and/or documents. The extent and quality of the co-
operation afforded by these undertakings were never-
theless different.

BPB was the first member of the agreement, following a
request for information from the Commission, to provide
additional evidence, complementary to that uncovered
during the inspections and confirming the existence of
the agreement, as set out above. This evidence comprised
detailed information on the meetings in question, notably
the meeting in London and on the exchanges of infor-
mation in respect of the principal European markets and,
in particular,
In addition, BPB also
recognised in part
the facts which were described in
the statement of objections. BPB nevertheless contested
the infringing nature of some of the facts described in
the statement of objections, which are retained in the
Decision.

the UK market.

the participating undertakings.

(23) Gyproc also provided evidence which contributed to the
establishment of the infringement. Following a request
for information from the Commission, this undertaking
provided information concerning the cartel meetings,
specifying the periods during which the meetings took
place in various Member States of the Community and
In the
the names of
course of a meeting with the Commission services
requested by Gyproc, a representative of the undertaking
volunteered oral
regarding manuscript
notes. In addition, Gyproc of its own accord provided
the Commission with manuscript notes of which the
Commission had not
the
inspection. These notes in particular contained infor-
mation relating
information
regarding sales volumes during the meeting in Versailles.
Gyproc does not contest the facts or their qualification as
infringements of Community competition law.

exchange of

explanations

become

to the

during

aware

(24)

In the above circumstances, the Commission considers
that it is appropriate to grant a 30 % reduction in the
amount of the fine for BPB and a 40 % reduction in the
amount of the fine for Gyproc.

— BPB:

— Knauf

EUR 138,6 million,

Westdeutsche Gipswerke:

EUR 85,8 million,

— Lafarge:

— Gyproc:

EUR 249,6 million,

EUR 4,32 million.

III. DECISION

(26)

BPB plc,
the Knauf Group, Société Lafarge SA and
Gyproc Benelux NV have infringed Article 81(1) of the
Treaty by participating in a set of agreements and
concerted practices in the plasterboard business.

(27)

The duration of the infringement was as follows:

(a) BPB plc:

from 31 March 1992, at

the latest,

to

25 November 1998;

(b) Knauf:

from 31 March 1992, at

the latest,

to

25 November 1998;

(c) Société Lafarge SA: from 31 August 1992, at the

latest, to 25 November 1998;

(d) Gyproc Benelux NV: from 6 June 1996, at the latest,

to 25 November 1998.

(28)

The undertakings referred to in Article 1 shall put an end
if they
to the infringement referred to in that Article,
have not already done so. In their plasterboard business
they shall
refrain from any agreement or concerted
practice that might have an identical or similar object
or effect to the infringement.

(29)

In respect of the infringement referred to in Article 1, the
following fines are imposed on the following under-
takings:

— BPB plc:

EUR 138,6 million,

— Gebrüder Knauf Westdeutsche

5. Final amount of fines imposed in this proceeding

Gipswerke KG:

EUR 85,8 million,

(25)

By way of conclusion, the amounts of the fines to be
imposed in accordance with Article 15(2)(a) of Regu-
lation No 17 should be set as follows:

— Société Lafarge SA:

EUR 249,6 million,

— Gyproc Benelux NV:

EUR 4,32 million.