2004/104/EC: Commission Decision of 27 November 2002 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-2/37.978/Methylglucamine) (notified under document number C(2002) 4557) (Text with EEA relevance)
Date: 2002-11-27
Institutions: European Commission
Subjects: chemical industry, dominant position, fine, merger control, pharmaceutical industry, restriction on competition, sanction (EU)

L 38/18

EN

Official Journal of the European Union

10.2.2004

COMMISSION DECISION

of 27 November 2002

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

(Case COMP/E-2/37.978/Methylglucamine)

(notified under document number C(2002) 4557)

(Only the German and French texts are authentic)

(Text with EEA relevance)

(2004/104/EC)

CONTENTS

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART I — FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1. The methylglucamine industry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1.1. The product

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1.2. The market for methylglucamine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1.3. The producers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.1.

Investigations in the Community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.2.

Investigations and proceedings in other jurisdictions

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3. The cartel

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.1. The documentary evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.2. Summary of the infringement objected to by the Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3. Background and initial contacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.4. The beginning of a structured cartel — Meeting 22 November 1990, Antony, Paris . . . . . . . . . . . . .

3.5. Structure and content of the collusive arrangement

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.5.1. Exchange of information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.5.2. Agreement on certain prices and on the annual price increases . . . . . . . . . . . . . . . . . . . . . .

3.5.3. Market sharing and customer allocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.5.4. Conclusion on structure and content of the collusive agreement

. . . . . . . . . . . . . . . . . . . . .

3.6. The working and development of the collusive arrangement

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.7. Annual meeting probably November or December 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.8. Annual meeting September or October 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.9. Annual meeting Paris 5 October 1993 and/or Frankfurt 12 October 1993 . . . . . . . . . . . . . . . . . . .

3.10. Annual meeting 19 October 1994, Frankfurt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.11. Annual meeting 4 October 1995, Frankfurt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.12. Introduction of [Merck employee 2] (*) 2 July 1996, Novotel La Defense Paris . . . . . . . . . . . . . . . . .

3.13. Annual meeting 1996 about 24 October 1996, Hotel Intercontinental Frankfurt

. . . . . . . . . . . . . . .

3.14. Annual meeting 6 October 1997, Novotel La Defense Paris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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(*)

Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square
brackets.

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Official Journal of the European Union

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3.15. Annual meeting about 7 October 1998, Frankfurt

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.16. The end of the cartel

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART II — LEGAL ASSESSMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1.

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2. Application of Article 81 of the Treaty and Article 53 of the EEA Agreement . . . . . . . . . . . . . . . . . . . . .

2.1. Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement . . . . . . . . . . . . . . . . . . . . . . . .

2.2. Agreements and concerted practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.3. Single, continuous infringement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.4. Restriction of competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.5. Effect on trade between the Member States and between the EEA contracting parties . . . . . . . . . . . .

2.6. Provisions of competition rules applicable to Austria, Finland, Norway and Sweden . . . . . . . . . . . . .

2.7. Duration of the infringement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.8. Liability for the infringement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.8.1. Principles applicable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.8.2. Addressees

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3. Remedies

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.1. Article 3 of Regulation No 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.2. Article 15(2) of Regulation No 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3. The amount of the fine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.1. The basic amount

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.1.1. Gravity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.1.2. Nature of the infringement

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.1.3. The actual impact of the infringement on the methylglucamine market in the EEA

3.3.1.4. The size of the relevant geographic market . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.1.5. Conclusion on the gravity of the infringement . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.2. Classification of cartel participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.2.1. Sufficient deterrence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.3. Duration of the infringement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.4. Conclusion on the basic amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.5. Aggravating circumstances

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.5.1. Role of leader in the infringement

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.6. Attenuating circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.7. Application of the Leniency Notice

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

. .

3.3.7.2. Substantial reduction in a fine (‘Section C')

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.7.3. Significant reduction of a fine (‘Section D')

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.7.4. Conclusion on the application of the Leniency Notice

. . . . . . . . . . . . . . . . . . . . . .

3.3.8. The final amounts of the fines imposed in the present proceedings

. . . . . . . . . . . . . . . . . . .

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L 38/20

EN

Official Journal of the European Union

10.2.2004

SUMMARY

Addressees

This Decision is addressed to the following undertakings:

— Rhône-Poulenc Biochimie SA

— Aventis Pharma SA

— Merck KgaA

Articles infringed

the EC Treaty and Article 53 of

Article 81(1) of
the EEA Agreement prohibiting all agreements between
undertakings, decisions by associations of undertakings and concerted practices which may affect trade between
Member States and the contracting parties to the EEA Agreement and which have as their object or effect the
prevention, restriction or distortion of competition within the common market and within the territory covered
by the EEA Agreement.

Relevant product

Methylglucamine of pharmaceutical quality used as an intermediate chemical product for the synthesis of x-ray
media, pharmaceuticals and colourings.

Community market value

Approximately EUR 3,1 million annually (1).

Specification of the infringement

Beginning in November 1990 and continuing until December 1999 the main producers of methylglucamine
formed a clandestine cartel contrary to Article 81(1) of the Treaty and Article 53(1) EEA covering the Community
and the EEA, by which they fixed market shares for the product; agreed on price targets for the product; agreed
on price lists for the product and agreed on how to share the largest customers.

Duration of the participation

— Merck KgaA from 22 November 1990 to 31 December 1999

— Rhône-Poulenc Biochimie SA from 22 November 1990 to 31 December 1999

— Aventis Pharma SA from 22 November 1990 to 31 December 1999.

(1) Commission estimate based on sales figures from the companies. For the sales figures, see Doc. 00200 and Doc. 908-921 in the

Commission's file.

10.2.2004

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Official Journal of the European Union

L 38/21

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(3)

Having regard to the
Community,

treaty establishing the European

MG is a mature product, having been on the market for
a long time. The methylglucamine market is stable, with
some regions even displaying declining demand. It is
possible that the product will disappear from the market
in the medium term, as a new and cheaper product
might be available soon.

Having regard to the Agreement of the European Economic
Area,

(4)

Having regard to Council Regulation No 17 of 6 February
1962, first Regulation implementing Articles 85 and 86 of the
Treaty (2), as last amended by Regulation (EC) No 1/2003 (3),
and in particular Articles 3 and 15 thereof,

Having regard to the Commission decisions of 1 October 2001
and 17 December 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 (4),

only

high

Moreover

However, as confirmed by both parties, at all material
time during the period considered in this decision, there
was no substitute for methylglucamine as regards X-ray
applications.
quality
methylglucamine referred to as pharmaceutical grade
methylglucamine can be used for these applications.
Consequently it is concluded that there is a relevant
grade
product
methylglucamine.
covers
pharmaceutical grade methylglucamine, which can be
used in the applications outlined in paragraph 1. A
Chinese producer is producing a type of lower quality
methylglucamine, which is used in other contexts such
as watertreatment. When the term methylglucamine or
MG is used in this Decision only MG of pharmaceutical
quality is referred to.

pharmaceutical
only

for
This

Decision

market

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

1.2. The market for methylglucamine

Having regard to the report of
case (5),

the hearing officer in this

(a) Supply

Whereas:

PART I — FACTS

1. THE METHYLGLUCAMINE INDUSTRY

1.1. The product

(1)

(2)

(MG)

designated

(sometimes

Methylglucamine
as
‘meglumine') is an intermediate chemical product for the
synthesis of x-ray media, pharmaceuticals and colorings.
It is not a by-product; on the contrary the capacity for
producing MG is determined by the configuration of the
production facility.

MG is delivered in crystalline form to the producers of
x-ray media, who combine the substance with a further
chemical agent. This combined substance is primarily
demanded by hospitals that inject it into x-ray patients.
The function of MG consists of preventing the expulsion
of x-ray media too quickly from the body.

(2) OJ 13, 21.2.1962, p. 204/62.
(3) OJ L 1, 4.1.2003, p. 1.
(4) OJ L 354, 30.12.1998, p. 18.
(5) OJ C 36, 10.2.2004.

(5)

(6)

(7)

(8)

As shown above, the relevant product market can be
characterised as the market for pharmaceutical grade
methylglucamine
as
methylglucamine), as this grade is not substitutable from
the demand point of view to other grades. This market
is of a worldwide dimension.

(hereafter

referred

to

for methylglucamine in 1999 can
The world market
estimated to be around 375 tonnes, worth some EUR
5,7 million (6), of which around EUR 3,1 million (7)
were for the Community.

On the basis of sales data provided by the parties in
1999, Merck had a share of [around 60 %] of the world
market and a respective share of [around 75 %] in the
EEA measured in volume. The estimated shares of
Aventis were [around 40 %] of the world market and a
respective share of [around 25 %] in the EEA (8).

On the same basis and measured in value in 1999,
Merck had a share of
the world
market and a respective share of [around 70 %] in the

[around 55 %] of

(6) Commission estimate based on sales figures from the companies. It
is not known whether minor amounts are being sold by Chinese
producers. For the sales figures see Doc. 00200 and Doc. 908-921.
(7) Commission estimate based on sales figures of the companies. For

the sales figures see Doc. 00202 and Doc. 908-921.

(8) Commission estimate based on sales figures of the companies: For
the sales figures see Doc. 00200—00202 and Doc. 908—921.

L 38/22

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Official Journal of the European Union

10.2.2004

Community. The estimated shares of Aventis were
[around 45 %] of the world market and [around 30 %]
in the EEA market (9).

(b) Demand

(9)

In its response to the statement of objections, Merck
argues that its market share should be assessed as an
average over several years, as the figure for 1999 does
not adequately reflect
the
duration of the cartel (10). The Commission has looked
In its response to the statement of
into this matter.
objections, Merck overestimates
the
methylglucamine sales of Aventis. The average market
shares for the period 1995 to 1999 are not significantly
different from the 1999 market shares.

the parties' position for

the value of

(10) Merck argued in both its written answer

to the
statement of objections and oral presentation that
deliveries to [customer 1] should not be included within
the calculation of Merck's market share, as it was a
captive customer of Merck who would have been the
only supplier able to supply with the requested quality
product.

(11)

This argument should be rejected as Aventis made it
clear during the oral hearing that it was able to supply
[customer 1] quality-wise, and that Merck ultimately
admitted it.
the
anti-competitive agreement among the parties, Aventis
would have had the means,
incentive and interest in
actively competing for [customer 1]'s supplies.

in the absence of

follows that

It

(15)

The customers for methylglucamine are producers of
x-ray media, who combine the substance with a further
chemical agent. This combined substance is primarily
demanded by hospitals. The leading purchasers of
methylglucamine include [customer 1] of Germany,
[customer 2] of France and [customer 3] and [customer
4] of the United States of America. [Customer 1] and
[customer 3] are former producers of methylglucamine
(see section 3.3).

(c) Trade between Member States

(16) Methylglucamine is produced in two Member States and

marketed throughout the world.

(17)

In 1999, Merck sold methylglucamine to eight Member
States.

(18)

In 1999, Aventis sold methylglucamine to five Member
States.

(19)

Sales to EFTA countries seem to be very small. The
Commission is aware that a Norwegian company made
modest purchases from Rhône-Poulenc in 1995.

(12)

The two producers of MG are both multinational
corporations with considerable turnovers. The business
is essentially a global one, and the worldwide market
can be described as a duopoly.

(13)

Both producers of MG are
Community.

situated within the

(14)

its Darmstadt plant (11).

In the year 2000, pharmaceutical grade MG was
produced worldwide in only two locations both situated
in the Community. The two producers of MG are of
about similar size in terms of production capacity.
[around 300]
Merck had a production capacity of
is not known
It
tonnes at
exactly how large a capacity Aventis has at its Elbeuf
plant. The volume of methylglucamine sold by Aventis
varies a lot from year to year, but the highest amount
sold since 1990 was [around 250] tonnes in 1991 (12).
Sales in recent years have been considerably lower.
Worldwide production capacity for methylglucamine can
therefore be estimated to be around 500 tonnes a year
in 1999.

(20)

(21)

1.3. The producers

(a) Rhône-Poulenc Biochimie SA and Aventis Pharma SA

Rhône-Poulenc Biochimie (RPB) has its headquarters in
Antony near Paris. RPB is a fully owned subsidiary of
Aventis Pharma, which is itself a fully owned subsidiary
of Aventis SA. RPB's total turnover in 1999 was [around
EUR 110 million] (13).

In its response to the statement of objections, Aventis
states ‘The infringement has been committed by RPB
and by no other affiliated company. Indeed, the activities
covered by the statement of objections relate exclusively
to RPB' (14). On the basis of
the
Commission accepts
the entire production of
methylglucamine in Aventis took place in RPB.

statement

that

this

(9) Commission estimate based on figures provided by the companies.
the

figure not mentioned. Confidential

information of

[Exact
parties].

(10) Merck response to the statement of objections pp. 5 and 6,

paragraphs 13 to 16.

(11) Doc. 00021.
(12) Doc. 00197.

(22) Aventis Pharma SA also has its headquarters in Antony
near Paris. The company focuses on the discovery,
development, manufacture and sales of pharmaceutical

(13) Doc. 8935.
(14) Aventis

response to the

paragraph 71.

statement of objections, page 28,

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Official Journal of the European Union

L 38/23

products. Aventis Pharma is a fully owned subsidiary of
Aventis SA. Its total turnover in 1999 was [around EUR
2 billion] (15).

(31) Methylglucamine is produced by the division ‘Cosmetics,

Health, Nutrition' within the company (18).

(c) Other producers

(23) Aventis SA has its headquarters in Strasbourg, France. It
is an international company involved in the research,
development, production and marketing of organic and
inorganic intermediate chemicals, speciality chemicals,
agricultural
pharmaceuticals
fibres,
chemicals.

plastics,

and

(32)

(24)

Its three core businesses were pharmaceuticals, plant
and animal health and speciality chemicals.

(25)

The total turnover of the company in 2000 was EUR
22,304 billion (16).

(26)

In 1998 Rhône-Poulenc and Hoechst AG, the German
chemical producer, announced their agreement on a
plan to merge their life science activities in a new entity
‘Aventis'
(to be owned 50:50 by the two parent
companies) and to divest their chemical operations over
a three-year period. The completion of the merger was
announced on 15 December 1999.

(27)

Following the merger Aventis has increasingly focused
on its pharmaceutical activitities. Other parts of
the
business have been sold off. Of particular importance
was the sale of Aventis Crop Sciences to Bayer in 2002.

(28) During

the procedure Aventis Pharma has been
handling the contacts with the Commission on behalf of
both Aventis Pharma SA and Rhône-Poulenc Biochimie
SA. When ‘Aventis' is referred to in this Decision it is to
be understood as Aventis Pharma acting on behalf of
both themselves and RPB.

(b) Merck

(29) Merck KgaA, which has its headquarters in Darmstadt,
is a pharmaceutical and health product
Germany,
manufacturer.
the operating
established
subsidiary of E. Merck oHG, a general partnership
dating from 1827.

as

is

It

(30) Merck's

total

turnover

in 1999 was EUR 5 347

million (17).

it

From 1991 to about 1998, Aventis and Merck appear to
have been the only producers of methylglucamine in the
world. In 1998, a Chinese low-cost producer entered the
this producer has
that
seems
market. However
concentrated on the market
for alternative uses of
methylglucamine where the lower pharma-grade is
required (19). There is no information that the Chinese
producer has made any inroads in the market
for
a
grade methylglucamine used as
pharmaceutical
contrast agent for x-rays in medical application, which
is
this
Decision.

the relevant product

the purposes of

for

2. PROCEDURE

2.1. Investigations in the Community

(33) On 27 September 2000, representatives from Merck
visited the Commission. During the meeting the
company expressed its wish to cooperate with the
Commission pursuant to the Commission Notice on the
non-imposition or reduction of fines in cartel cases (20)
(the Leniency Notice), and gave an oral description of
the cartel activity in which it had been involved. The
Commission received a more detailed written account
on 20 October 2000.

(34) On 15 January 2001,

the Commission undertook a
verification pursuant to Article 14(3) of Regulation 17
at the premises of Aventis in Romainville.

(35) On 19 October 2001, the Commission sent a request for
information pursuant to Article 11 of Regulation 17 to
Aventis. On the same day a request
for additional
information was sent to Merck.

(36)

The final responses to the letters were received from
Merck in late January 2002 and from Aventis in early
February 2002.

(37) On 17 June 2002, the Commission initiated proceedings
case and adopted a statement of
in the present
three addressees. The statement of
objections against
objections was addressed to Rhône-Poulenc Biochimie
SA, Aventis Pharma SA and Merck KgaA.

(38)

Responses to the statement of objections were received
from the addressees on 2 September 2002.

(15) Combined turnover of Rhône-Poulenc Rorer and Hoechst Marion
Roussel. Fax from Jones, Day, Reavis & Pogue of 31 October 2002.

(16) Doc. 00203.
(17) Doc. 6901.

(18) Doc. 00023
(19) Doc. 9075.
(20) OJ C 207, 18.7.1996, p. 4.

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(39) An oral hearing was held on 3 October 2002, during
which all parties had the opportunity to be heard.

(44)

responsible

for distribution and
Company officials
marketing for methylglucamine on the part of Merck
and Aventis met annually from 1990, and shared their
sales data and turnover figures of the previous year.

2.2. Investigations and proceedings in other
jurisdictions

(40)

The US and Canadian authorities are also investigating
the cartel. As with the case in the Community, Merck is
cooperating with the authorities.

(45) During these annual meetings a price increase was
typically negotiated. It was agreed to increase by agreed
percentage points the list prices for methylglucamine,
which applied at least in Europe to smaller customers.

(46) During

the meetings,

specific
customers was exchanged, and steps were taken to
ensure that the customers did not change supplier. The
cartel included a market-sharing agreement.

information about

3. THE CARTEL

3.1. The documentary evidence

(41)

This Decision is based on the documentary evidence
provided by Merck, the documentary evidence found at
the inspection of
the premises of Aventis and the
answers to the Commission's requests for information.

(47)

From 1990 until 1999, the cartel members held regular
annual meetings, usually in the autumn. During this
period, 11 such meetings have been identified.

(48)

The known representatives of
cartel meetings were the following individuals:

the companies in the

(42)

The facts set out in this section are primarily based on
the following evidence:

Merck:

1. Merck's statement dated 19 October 2000, further

to an oral statement of 27 September 2000.

2. Documents seized by the Commission during the
inspection at the premises of Aventis on 15 January
2001.

3. Replies from Merck to a request

for information
from the Commission, dated 17 December 2001
and 31 January 2002.

4. Replies from Aventis to a request for information
from the Commission, dated 21 December 2001
and 1 February 2002.

[Merck employee 1] (1990—1996) (21)

[Merck employee 2] (1996—1999) (22)

Aventis:

[Aventis employee 1] (1990—1999) (23)

[Aventis employee 2] (1990 or 1993—1999) (24)

5. Reply from Merck to the Commission's statements

of objections, dated 2 September 2002.

3.3. Background and initial contacts

6. Reply from Aventis to the Commission's statements

(49)

of objections, dated 2 September 2002.

3.2. Summary of the infringement objected to by
the Commission

(43)

The cartel of the two producers of methylglucamine,
least November
Merck and Aventis, existed from at
1990 to at least December 1999. The aim pursued was
the
competition in the worldwide
methylglucamine market. This was to be obtained by
means of a market-sharing agreement and by the fixing
of prices.

elimination of

Prior to 1990, Merck RPB were not the only producers
of pharmaceutical grade methylglucamine in the market.
[Customer 3] (USA) stopped production sometime in
likely stopped
the mid-1980s.
[Customer 1] most
producing methylglucamine in 1990. Both of
these
companies are now key customers for methylglucamine.

(50) According

good
longstanding relationship between the producers of

to Aventis

there was

very

a

(21) Doc. 00011—00013, 00123—00124.
(22) Doc. 00013—00017, 00115—00122.
(23) Doc. 00011—00017, Doc. 9065—9067.
(24) Doc. 00011—00017, Doc. 9071.

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If

a producer

ran into delivery
methylglucamine.
it was usually possible to purchase the
difficulties
necessary products
from its competitor at a very
favourable rate. As far back as 1979 the predecessor to
[Merck employee 1] as [senior position] at Merck recalls
a meeting with Rhône-Poulenc about purchase on
favorable terms because of delivery problems at Merck
(Kollegenlieferung) (25).
bought
In
methylglucamine from [customer 1] (26). Merck bought
from RPB in 1990/1991, 1994 and 1995 (27). [Merck
employee 1] recalls that on at least one occasion RPB
bought methylglucamine from Merck (28).

1989

RPB

(51) Aventis

states

further

‘It was clear

for both
that
companies that sooner or later one of them would have
to exit the market and would therefore buy its internal
from the
(methylglucamine)
need
remaining producer at favourable terms' (29).

of meglumine

(52)

its part,

In its response to the statement of objections, Merck
expressed a different understanding and confirmed that
for
it always rejected the proposals from
to cease its production and
Rhône-Poulenc/Aventis
purchase methylglucamine from Aventis. Merck's most
important client, [customer 1] AG, was generally not
prepared to accept methylglucamine of Aventis quality.
Finally, due to Merck's expertise in producing speciality
chemicals, Merck could produce methylglucamine at a
relatively low cost, so it would not make sense for
Merck to cease its production (30).

(53) When [customer 1] stopped production […], it started
buying its methylglucamine from Merck under special
terms as a ‘co-producer'. Merck explains that,
in this
particular context,
‘A co-producer is a company which
produces a specific product and therefore knows what
costs are linked to the production of this product. If this
company buys the product of a colleague-company due
to its special knowledge it will try to obtain the product
at a price as close as possible to its own production
costs (co-producer price)' (31).

(25) Doc. 6891.
(26) Doc. 9073.
(27) Doc. 6879, Doc. 9074.
(28) Doc. 6879—688.
(29) Doc. 9067.
(30) Merck response to the statement of objections, pp. 13—14,

paragraphs 31—34.

dieses

Produktes

(31) Doc. 794: ‘Co-Produzent ist ein Unternehmen, das ein bestimmtes
Produkt herstellt, und somit weiß, mit welchen Kosten die
das
Produktion
Unternehmen im Rahmen von Kollegenlieferungen das Produkt
von einem Wettbewerber bezieht,
so hat es aufgrund seines
Sonderwissens
eine bessere Verhandlungsposition und wird
versuchen, das Produkt zu einem Preis zu bekommen, der so nah
wie möglich an die Kosten der Eigenproduktion herankommt (sog.
Co-Produzentenpreis)'.

ist. Wenn

verbunden

contacts would have

(54) Around the time when it became clear that Merck and
RPB would be the only two producers left, contacts
between Merck and RPB started to increase.
Initially
these
focused on informal
exchange of information. [Merck employee 1] states that
when he was first introduced in [the late 1980s], it was
clear that for some time representatives from Merck and
Rhône-Poulenc had been meeting
the
purchase of products by Merck from RP. During these
meetings
for
representatives
the
methylglucamine also met (32).

to discuss

responsible

(55)

Statements from employees at Merck substantiate that
concerning
rumours
an
methylglucamine were
a
considerable time before 1990.

circulating at Merck for

arrangement

about

(56)

[Merck employee 4] states in an interview of 9 October
2000 that:

(57)

‘Although he has not worked directly with MG until the
beginning of this year, he knew about the contacts with
RP concerning this product. These contacts were a
public secret in the distribution department of Merck.
He had already heard about these contacts 10 to 20
time when […]
the
ago which was by
years
before
[1983—1989 — author's note]
the
and
at Merck
introduced
“Spartenorganisation” was
[1978—1979 — author's
particular
note].
relationship of RP to MG referred to prices as well as
market shares' (33).

The

(58)

In a second interview on 15 January 2002, [Merck
employee 4] was asked to elaborate on where and how
he had received the information.

(59)

‘He was not able to recall when exactly he received this
knowledge. However he believes that he must have
the
known by the early to mid 1980s, and that
information had come from a reliable source. He recalls
that a customer had complained that one received two
identical answers from Merck and Rhône-Poulenc when

(32) Doc. 00123.
(33) Doc. 00129—130:

‘Obwohl er bis Anfang diesen Jahres nicht
direkt mit MG zu tun habe, habe er von den Kontakten mit
Rhône-Poulenc (RP) im Hinblick auf dieses Produkt gewusst. Diese
Kontakte seien ein offenes Geheimnis in der Vertriebsabteilung
von Merck gewesen. Er habe von diesen Kontakten schon vor zehn
bis
[…]
[1983—1989 — author's note] und bevor die Spatenorganisation
bei Merck eingeführt wurde [1978—1979 — author's note]. Die
besondere Beziehung zu RP hinsichtlich MG habe sich auf Preise
sowie Marktanteile bezogen'.

Jahren gehört und zwar

in der Zeit,

zwanzig

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one asked for the price of MG. He can no longer recall
the exact date of this statement' (34).

(60)

[…] In an interview held on 15 January 2002 [Merck
employee 5] made the following statement:

(61)

‘He had returned from abroad to Darmstadt only in
1990. He had heard about the MG agreements during
visits to Darmstadt at the time he was living abroad.
According to his memory by the time he was first
interviewed (in the year 2000) the cartel had existed for
about 10 to 15 years. During a home visit he had heard
rumours that for MG there was an “understanding about
the price”. At the time his impression had been that this
was not a clean business. However he did not hear
about a possible sharing of customers between Merck
and Rhône-Poulenc' (35).

(62) Merck states that those responsible for distribution and
marketing of methylglucamine met with representatives
of Rhône-Poulenc (RP) in 1989, and shared their sales
data and turnover figures of the previous year (36). The
meeting is confirmed by [Merck employee 1] (37). No
documentary evidence was found and Aventis did not
confirm the meeting, nor did they confirm its purpose.

(63)

In its response to the statement of objections, Merck
confirms that
this meeting was definitely linked to
methylglucamine. Merck believes that it may even have
been the starting point for the methylglucamine cartel,
as RP tried to persuade Merck on this occasion to cease
production of methylglucamine
this
product from RP at a favorable rate. As Merck rejected
RP's proposal to close down its production, the cartel
could have been an alternative solution to ensure stable
prices and market shares (38).

and purchase

(34) Doc. 6882, ‘Wann genau er diese Kenntnisse erhalten habe, ließe
sich in Nachhinein nicht mehr zuordnen. Er meine jedoch, dass
diese Kenntnis Anfang bis Mitte der 80er Jahre da gewesen und
aus verlässlicher Quelle gekommen sei.
ihm
geblieben, dass ein Kunde für MG sich geäußert habe, man erhalte
zwei gleiche Antworten, wenn man Merck und Rhône Poulenc
nach dem Preis für MG frage. Wann genau diese Äußerung
gefallen sei, wisse er jedoch nicht mehr'.

In Erinnerung sei

(35) Doc. 6885 ‘[Merck employee 5] erklärte, er sei erst 1990 wieder
aus dem Ausland nach Darmstadt zurückgekommen. Er habe von
den Absprachen zu MG im Rahmen von Besuchen in Darmstadt
während seiner Auslandszeit gehört. Seiner Erinnerung nach habe
das Kartell bei seiner ersten Befragung (im Jahr 2000) etwa
10—15 Jahre bestanden. Bei einem seiner Heimatbesuche habe er
Gerüchte gehört, dass es bei MG “Verständigungen über den Preis”
gebe. Sein Eindruck sei damals gewesen, dass diese Sache nicht
sauber gewesen sei. Über ein mögliche Aufteilung von Kunden
zwischen Merck und Rhône-Poulenc habe er jedoch nichts gehört'.

(36) Doc. 00025.
(37) Doc. 00125.
(38) Merck response to the statement of objections, 2 September 2002,

(64) According to [Merck employee 1] a meeting took place
at an unknown date in 1989/1990. The participants
were [Merck employee 3] and [Merck employee 1] from
Merck, and [Aventis employee 1] from RP. Apparently a
further person from RP was present. The person was
not, however, [Aventis employee 2]. [Merck employee 3]
new
employee
introduced
representative
for
Merck
methylglucamine (39). [Merck employee 3] confirms the
meeting but
took place in 1990 in Paris,
probably in the headquarters of RP. He believes several
products, including methylglucamine, were discussed at
the meeting (40).

the
responsible

[Merck

from

says

1]

as

it

(65) After the above meeting towards the end of the 1980s
or at the beginning of the 1990s, a further meeting
took place. [Merck employee 1]and [Merck employee 6]
from Merck met with [Aventis employee 1] and [Aventis
employee 2] of RP, upon the invitation of RP, in a Paris
restaurant for dinner. The topic of discussion was not
business
from
Merck suspected that the invitation from RP was related
to a proposal from RP that Merck cease production of
methylglucamine
from
Aventis at a favourable rate (41).

the representatives

related. However

and purchase

this product

(66)

In its response to the statement of objections, Aventis
argues that as regards methylglucamine, only legitimate
contacts relating to occasional product shortages took
place between the companies prior
to 1990. The
statements of [Merck employee 3] and [Merck employee
1] do not provide proof of illegitimate contacts prior to
1990 and the reliability of the rumours heard by [Merck
employee 4 ] and [Merck employee 5] are highly
questionable (42).

(67) Different versions of events prior to 1990 exist. The
Commission does not have in its possession sufficient
documentation to prove which version is the correct
one. Consequently for the purpose of this Decision the
infringement will be considered as having started in
1990.

3.4. The beginning of a structured cartel — Meeting
22 November 1990, Antony, Paris

(68)

The meeting in autumn 1990 marks a clear change in
the development of the contacts between Merck and RP
and
as
structured
agreement
concerning prices and market shares allocation. This is

regards methylglucamine,

into a
clear

arrangement

formal

with

(39) Doc. 00124.
(40) Doc. 6890.
(41) Doc. 00047, Doc. 00136—00137.
(42) RPB response to statement of objections, 1 September 2002, pp.

pp. 17—18, paragraph 49.

4—6, paragraphs 9—12.

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Official Journal of the European Union

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confirmed by corroborated statements
Aventis and Merck (see section 3.5).

from both

(73)

(69)

(70)

(71)

(Merck)

and [Aventis

for both [Merck
The autumn 1990 meeting was
employee 1]
employee 1]
(RP/Aventis) their first meeting as company officials in
[those positions]. According to information from [Merck
employee 3], [Merck employee 1] had taken over from
him on 1 September 1990 (43). According to a
document seized at Aventis, [Aventis employee 1] was
appointed
for Rhône-Poulenc
position]
Biochimie in January 1990 (44).

that

[to

the cartel.

There is agreement between the parties that
[Merck
employee 1] and [Aventis employee 1] were responsible
for developing the modalities of
[Merck
employee 1] states: ‘[Merck employee 3] introduced him
to [Aventis employee 1]. The actual agreements with
Rhône-Poulenc, though, were only developed by [Merck
employee 1] together with [Aventis employee 1]' (45).
Aventis states ‘it appears that prior to 1990 meglumine
(methylglucamine)
related matters have not been
discussed during the meetings held at Merck's premises
and which were focused on [another product] sales.
the situation evolved
However, as
when, at the beginning of the 1990s, a yearly meeting
was held between [Aventis
employee 1] and his
counterpart at Merck, [Merck employee 1] to discuss
meglumine-related matters' (46).

indicated above,

the

The fact that the meeting took place is not in dispute. It
is confirmed that both [Merck employee 1] (47) and
[Aventis employee 1] were present at
the meeting.
Aventis states, ‘Based on the interviews conducted with
employees of
yearly meeting
respondent,
pertaining to meglumine was held in Germany between
[Aventis employee 1], [senior position] for RPB from
1990 to 1999, and his counterpart at Merck, [Merck
employee 1] or his successor [Merck employee 2]. This
meeting was held at the end of the year. The first of
such meetings was held in 1990 with [Merck employee
1] at Merck's premises in Darmstadt' (48).

a

(72) While Merck does not dispute that the meeting took
place, it claims that Aventis confuses the meeting with a
meeting relating to [another product], and that the first
meeting actually took place at the Aventis premises in
Antony near Paris.

(43) Doc. 6890.
(44) Doc. 00574.
(45) Doc. 6878, ‘[Merck employee 3] habe ihn mit [Aventis employee
1]
konkreten Absprachen mit
Rhône-Poulenc habe [Merck employee 1] jedoch erst zusammen
mit [Aventis employee 1] entwickelt'.

gemacht. Die

bekannt

(46) Doc. 9070.
(47) Doc. 00125.
(48) Doc. 9065—9066.

[another product]

In its response to the statement of objections, Merck
states ‘It is true that yearly meetings relating to [another
product] were held on Merck's premises at which
members of Merck's central purchasing division held
intensive talks with Aventis' employees in order to set
to Merck.
conditions for sales of
Indeed, such a meeting relating to [another product]
was held at Merck's premises (also) in 1990. As these
meetings
from
Rhône-Poulenc,
distribution/marketing
division (49) was generally not involved. In contrast, the
1990 meeting relating to methylglucamine was held on
22 November between [Aventis employee 1] and [Merck
employee 1]
recently appointed [to a senior
position]) at the Aventis premises in Paris, Antony. After
invited [Merck
[Aventis employee 1]
this meeting,
employee 1] to a restaurant on the Champs Elysees' (50).

of Merck

concerned

purchases

Merck's

(just

(74)

Although there is disagreement about the place of the
first meeting, it is clear from the above that the parties
agree that the first meeting of the cartel took place in
the autumn of 1990. Based upon the more precise
it is concluded that the first
information from Merck,
meeting of the cartel took place on 22 November 1990.

(75)

first meeting and of
The content of
subsequent meetings is described in section 3.5.

this

the 10

3.5. Structure and content of the collusive
arrangement

3.5.1. Exchange of information

(76)

Both parties agree that meetings normally started with
an exchange of information and views on the worldwide
demand for the product, referring to the volumes sold
to the respective main clients during the previous year.

(77) Merck states,

‘Those responsible for distribution and
marketing for MG on the part of Merck and Aventis
met once annually since 1989, and shared their sales
data and turnover figures of the previous year. To this
end, prior to such meetings the Merck representatives
obtained print-outs of
internal Merck sales statistics,
which showed the results of the previous year, with
reference to the respective country and customers, with
volume and sales figures' (51).

(49) This is the division which dealt, among other products, with

methylglucamine.
(50) Merck response

to the

statement of objections, page 15,

paragraphs 38—39.

(51) Doc. 00025.

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(78) Aventis states, ‘These meetings lasted around one and a
half hours during which the companies would begin by
exchanging views on the — generally declining —
worldwide demand for this product referring to the
volumes sold to their respective main clients during the
preceding year' (52).

(79) Aventis argues in its response to the statement of
objections that the exchange of sales information during
the meetings was limited. It states:

(80)

(81)

data.
of

In
objections

exchanged
the

‘The statement of objections asserts that RPB and Merck
seeming
sales
routinely
contradiction,
also
statement
concludes, along with both RPB and Merck, that both
producers had inaccurately assessed one
another's
position in the meglumine market. Merck mistakenly
believed that both producers had a 50 % market share.
The
clearly
demonstrate that Merck had a much higher market
i.e., Merck had [around 65 %] of the
share than RPB,
world market and [around 75 %] of the EEA market. In
turn, RPB had underestimated the worldwide meglumine
market at “approximately 200 tonnes/year for various
clients, and the rest for the internal needs of Merck and
[customer 1].”.'

statement of objections

and its

file

inaccurate

assessments

figures occurred,

‘These
clearly
market
demonstrate that while some informal oral exchange of
sales
two producers never
the
exchanged documents of any sort. While the statement
of objections states that Merck and RPB met and “shared
their sales data and turnover figures of the previous
it must be emphasised there was never a full,
year”,
systematic exchange of sales data. Interviews of [Merck
employee 1] and [Merck employee 2] indicated that RPB
and Merck never exchanged their
figures,
contrary to Merck's own statement. Had the parties
actually done so, Merck would have realised that its
market share far exceeded RPB's' (53).

turnover

(82)

The Commission accepts that oral exchange of sales
figures did occur, but did not materialise into a full
systematic exchange of sales data.

3.5.2. Agreement on certain prices and on the annual price

increases

(83)

Both Merck and Aventis agree that an important
element of the annual meetings was to agree on price
increases for the next year.

(52) Doc. 9066.
(53) Aventis response to the statement of objections, pp. 14—15,

paragraphs 30—31.

(84) Merck states, ‘Moreover, a price increase for the coming
year was typically negotiated. It was agreed to increase
by agreed percentage points both the list price for MG
(established anew annually), which applied at least in
(share
only
Europe
as well
the
approximately 10 % of
larger
individually-negotiated
to
customers (key accounts). As a consequence,
the list
prices of Merck and Aventis were — aside from
insubstantial deviations — in effect the same' (54).

customers

applicable

turnover),

smaller

prices

to

of

as

(85) Aventis states, ‘A discussion would follow on prices, in
particular whether one of the parties had the intention
of increasing its price and to what extent. None of the
parties proposed significant price increases as it was
understood that a product manufactured since 1956
could only support a gradual and slight increase' (55).

(86)

In its response to the statement of objections, Aventis
states,
‘As noted in RPB's reply of 1 February, prices
were discussed during the annual meetings between RPB
and Merck. In particular, the participants would discuss
whether
followed by
agreement on a minimum percentage increase. However,
Merck and RPB did not discuss prices with respect to
[Merck employee 1] confirmed
individual customers.
this in his interview of 19 September 2000' (56).

to increase

list price,

the

(87)

The Commission accepts Aventis's claim that only ‘list
prices' and annual price increase percentages were
discussed at the meetings.

3.5.3. Market sharing and customer allocation

(88)

included a
Both parties agree that
market sharing agreement. However
their statements
differ somewhat as to the description of this agreement.

the arrangement

(89) Merck states, ‘At least since the end of the 1980s, there
were contacts between Merck and Aventis with respect
to MG, whose primary goal was to maintain the status
quo of
the respective 50 % market shares of both
companies on the worldwide MG market and to
increase the price of MG. An additional goal strived for
was to prevent, if possible, a switch by their respective
customers from one to the other supplier' (57).
In a
different sentence Merck states, ‘To prevent switches, it
was agreed that each party would respond to a price

(54) Doc. 00025.
(55) Doc. 9066.
(56) Aventis

response

paragraph 32.

(57) Doc. 00024.

to the

statement of objections, page 15,

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Official Journal of the European Union

L 38/29

query from a customer of the other by quoting the list
price' (58).

(90)

the 1996 annual meeting [Merck
In his account of
employee 2] states: ‘It was agreed that Merck and RP, in
case of a request from customers of the other party,
should only offer list prices, even if
they were big
customers. As the list prices were at a higher level than
the prices for big customers, it was assured that the big
customers would stay with their current supplier. This
subject was discussed in detail in the second meeting in
autumn 1996' (59). In his account of the 1997 meeting
‘The participants discussed
[Merck employee 2] states,
whether all customers had stayed with their suppliers in
the past year, and determined that
the
case' (60).

this was

in 1990 or 1991,

(91) Aventis states, ‘During one meeting, which is recalled to
have been held either
[Aventis
employee 1] and [Merck employee 1] entered into an
agreement on volumes supplied to [customer 2], RPB's
main European client. According to this agreement,
[customer 2]'s yearly needs of meglumine would be
supplied by RPB up to a minimum of 25 tonnes. If
[customer 2], Merck could supply
requested by
[customer 2] with its remaining needs. In other words,
RPB was certain that it would at least supply [customer
2] every year with a minimum of 25 tonnes of
meglumine. The agreement
lasted until 1999. This
agreement occurred at a time when [customer 2] was
starting to complain or make reservations about the
quality and/or packaging of RPB's meglumine. Thus,
there was a risk that [customer 2] would buy its annual
needs from Merck. Since [customer 2] had been a
“institutional” RPB client for years it was very important
for RPB to secure the supply of at least 25—30 tonnes
of meglumine per year' (61). Later in its response to the
Commission's Article 11 letter Aventis states ‘During
these meetings, no allocation of quantities among the
respective meglumine
any kind of
territorial allocation was ever fixed, with the exception
of the [customer 2] agreement described above' (62).

customers or

(92)

That there were pressure on RP for a market-sharing
agreement concerning [customer 2] can be deduced
of
from the
Rhône-Poulenc Rorer (see recitals 104 and 105).

employee

[Aventis

note

3]

of

(93)

(94)

(95)

(96)

is also
The arrangement concerning [customer 2]
confirmed by an internal Merck e-mail exchange from
October 1999 (see recitals 159 to 161).

that

that Aventis's

In its response to the statement of objections, Merck
argues
the territorial
statement
allocation at the meetings was limited to the [customer
‘In contrast to
2] agreement is incorrect. Merck states,
the
this characterisation by Aventis,
market-sharing agreement was not
limited to the
“[customer 2]” agreement but related to the worldwide
methylglucamine market. The intention behind the
cartel was a “non-attack” agreement. There was an
agreement to maintain the distribution of sales at their
current levels, i.e. to maintain the 50/50 division of the
market that existed in 1989/1990 (at least according to
Merck's information at the time)' (63).

the content of

from Aventis

Later, referring to Aventis's description of the [customer
‘This explanation of
2] agreement, Merck states,
the
agreement
is consistent with Merck's
the cartel was aimed at each party
explanation that
keeping its major customers; a possible agreement
regarding [customer 2] is simply a specific example of
this broader aim' (64).

‘Market

In its response to the statement of objections, Aventis
states,
sharing was achieved only through
customer allocation. To prevent disruptive price wars in
the meglumine market, the agreement between RPB and
Merck sought to maintain a stable market. The crux of
this agreement concerned customer allocation with
respect to the producer's main customers. That is, they
would endeavour not to compete for their respective
major customers. No market quotas were fixed, as
evidenced by the fact that Merck wrongly believed that
RPB had a 50 % market share' (65).

(97) Aventis's statement

its earlier

in response to the statement of
objections contradicts
that no
allocations were ever fixed except for the [customer 2]
agreement, and confirms Merck's version of events.
is
Consequently the Commission considers
established that the parties agreed to share the market
through customer allocation.

statement

that

it

(58) Doc. 00024—00025.
(59) Doc. 00119,

‘Es war vereinbart, dass Merck bzw. RP bei einer
Anfrage von Kunden des anderen, auch wenn dies große Kunden
waren, nur Listenpreise anbieten sollte. Da diese Listenpreise höher
lagen als die Preise für große Abnehmer, war so sichergestellt, dass
die großen Kunden bei den jeweiligen Herstellern verblieben. Über
diese Vorgehensweise wurde auf dem zweiten Treffen im Herbst
1996 ausführlich gesprochen'.

(60) Doc. 00120 ‘Die Teilnehmer besprachen, ob auch im vergangenen
Jahr alle Kunden bei den jeweiligen Unternehmen verblieben
waren, und stellten fest, dass dies der Fall war'.

(61) Doc. 9066.
(62) Doc. 9067.

3.5.4. Conclusion on structure and content of the collusive

agreement

(98)

From the above the structure and content of
collusive arrangements can be described as follows.

the

(63) Merck response to the statement of objections, page 18, paragraph

53.

(64) Merck response to the statement of objections, page 19, paragraph

55.
(65) Aventis

response

to the

statement of objections, page 17,

paragraph 37.

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— Each meeting started with an informal exchange of
the market. The
sales

the state of
limited

provided

concrete

information about
parties
information.

only

— annual meeting 1991

— annual meeting September or October 1992

— The parties agreed on the percentage price increase

for the coming year.

— annual meeting(s) 5 October 1993, Paris, and/or 12

October 1993, Frankfurt

— The parties fixed ‘list prices' for the coming year.

— annual meeting about 19 October 1994, Frankfurt

— The parties agreed not to compete for the other
party's customers. The ‘[customer 2] agreement'
should be
this
arrangement.

an integral part of

seen as

3.6. The working and development of the collusive
arrangement

(99)

Both parties agree that annual meetings took place each
year between 1990 and 1998. In addition Merck claims
that annual meetings also took place in 1989 and 1999.

(100) Merck states,

‘Those responsible for distribution and
marketing for MG on the part of Merck and Aventis
met once annually at least since 1989, and shared their
sales data and turnover figures of the previous year' (66).
Merck also explains that the last meeting took place in
1999 (67).

‘Based on interviews conducted with
(101) Aventis states,
employees of
yearly meeting
a
the
respondent,
pertaining to meglumine was held in Germany between
[…], and his counterpart at
[Aventis employee 1]
Merck,
[Merck employee 1] or his successor [Merck
employee 2]. This meeting was held at the end of the
year. The first of such meetings was held in 1990 with
[Merck employee 1] at Merck's premises in Darmstadt.
The other meetings were also held either at Merck's
premises or during an informal dinner at a restaurant in
Frankfurt, or in Paris. The last was held in September or
October 1998' (68).

(102) Both companies acknowledge that

the basic cartel
functions were developed through annual meetings
throughout the 1990s. Indeed, company statements and
documentary evidence has allowed the following cartel
meetings to be identified:

— annual meeting 22 November 1990, probably in

Antony near Paris (see section 3.4)

— annual meeting 4 October 1995, Frankfurt

— introduction of [Merck employee 2] 2 July 1996,

Novotel La Defense, Paris

— annual meeting about 24 October 1996, Hotel

Intercontinental, Frankfurt

— annual meeting 6 October 1997, Novotel La

Defense, Paris

— annual meeting about 7 October 1998, Frankfurt

— final meeting between 1 and 4 November 1999,

Frankfurt.

3.7. Annual meeting, probably November or
December 1991

(103) Both parties confirm the meeting (see recitals 99 to

101).

(104) An internal RP note from [Aventis employee 3] of
Rhône-Poulenc Rorer of 6 November 1991, which was
that
copied to [Aventis
[customer 2]
of
has
methylglucamine for 1992 instead of the usual amount
of about 30 tonnes. He ends his note by writing ‘This
situation is unacceptable and I trust you to supply me
with the arguments, which possibly will allow me to
recover the volumes we had in the past' (69).

employee 1],
only ordered 13 700 kg

complains

(105) Aventis

states

the market-sharing

agreement
that
concerning [customer 2] was made
in 1990 or
1991 (70). The note of [Aventis employee 3] confirms
that the market-sharing agreement can be dated back to
at
the annual cartel meeting of 1991, which
probably took place in November or December.

least

(66) Doc. 00025.
(67) Doc. 00032—00033.
(68) Doc. 9065—9066.

(69) Doc. 00455, ‘Cette situation est inadmissible et je compte sur vous
pour me fournir les arguments qui me permettront, peut être, de
retrouver les volumes que nous avions par le passé'.

(70) Doc. 9066.

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3.8. Annual meeting September or October 1992

(113) RP issued its price list on 2 November 1994 (78). This is

fully in line with a meeting in mid October..

(106) Both parties confirm the meeting (see recitals 99 to

101).

(107) RP issued its price list

for methylglucamine on 2
November 1992 (71). This is very much in line with
their behaviour following later and better-documented
cartel meetings, and strongly indicates that the meeting
took place in September or October 1992 (72).

(114)

From 1995 onwards it is possible to compare the ‘list
prices' (79) for methylglucamine. For 1995 Merck had a
‘list price' of EUR 14,46 kg (80) for deliveries over two
tonnes, while the corresponding price for Aventis was
EUR 14,30 kg (81).

3.11. Annual meeting, 4 October 1995, Frankfurt

3.9. Annual meeting, Paris, 5 October 1993 and/or
Frankfurt, 12 October 1993

(115) Both parties confirm the meeting (see recitals 99 to

101).

(108) Both parties confirm the meeting (see recitals 99 to

101).

(109) The travel documents of [Merck employee 1] show that
he was
a
in Paris on 5 and 6 October
conference (73). The cartel meeting might well have
taken place on this occasion. Travel documents of
[Aventis employee 2] show that she was in Frankfurt on
12 and 13 October to meet Merck (74). It is also possible
that the meeting took place on that occasion, or that an
additional meeting was necessary to agree on prices and
quotas for 1994.

for

(116) The Commission has in its possession a claim for
expenses from [Merck employee 1] for a dinner held on
from the
the evening of 4 October 1995. The bill
restaurant Casa Nova in Frankfurt has the names of
[Merck employee 1], [Aventis employee 1] and [Aventis
employee 2] written on it (82).

(117) RP issued its price list on 9 November 1995 (83), while
two days before (84). The
Merck issued its price list
timing and coordination of the two announcements are
a strong additional indicator that the cartel meeting was
all important for determining the prices for 1996.

(110) The RP price list was issued on 2 November 1993 (75).
This is fully consistent with a meeting date in early
October.

(118)

For 1996 Merck had a ‘list price' of EUR 15,36 kg (85)
for deliveries over two tonnes, while the corresponding
price for Aventis was EUR 16,24 kg (86).

3.10. Annual meeting 19 October 1994, Frankfurt

3.12. Introduction of [Merck employee 2], 2 July
1996, Novotel La Defense, Paris

(111) Both parties confirm the meeting (see recitals 99 to

101).

(119) According to [Merck employee 2], a meeting took place
in Paris on 2 July 1996. The participants were [Merck

(112)

[Merck employee 1] put
connection with a car
October 1994 (76). Moreover,
that
statement of objections, Merck confirms
meeting took place on 19 October in Frankfurt (77).

in a claim for expenses in
journey to Frankfurt on 19
in its response to the
the

(71) Doc. 00547.
(72) Doc. 00547.
(73) Doc. 02953.
(74) Doc. 00752.
(75) Doc. 00531.
(76) Doc. 02862.
(77) Merck response to the statement of objections, page 17, paragraph

46.

(78) Doc. 00525.
(79) The ‘list prices' only account for about 20 % of the market. Most
methylglucamine is sold to large customers according to special
conditions. The prices may not be 100 % comparable (fluctuations
of exchange rate, delivery conditions, packing).

(80) Doc. 00055. Eurostat average exchange rate for January 1995 used

in conversion.

(81) Doc. 00525. Eurostat average exchange rate for January 1995 used

in conversion.

(82) Doc. 02781—02782.
(83) Doc. 00500.
(84) Doc. 00049—00050.
(85) Doc. 00049. Eurostat average exchange rate for January 1996 used

for conversion.

(86) Doc. 00500. Eurostat average exchange rate for January 1996 used

for conversion.

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employee 1] and [Merck employee 2] from Merck and
[Aventis employee 1] and [Aventis employee 2] from
RP. The occasion of the meeting was the introduction of
[Merck employee 2], who took over the responsibillity
at Merck
of
employee 1]. No
from [Merck
methylglucamine)
discussion of prices or similar talks were held at this
meeting. The participants agreed that they would get in
touch during the course of the year (87).

for marketing

(among

others

(120) The meeting is also confirmed by travel expenses claims
from [Merck employee 1] and [Merck employee 2] (88).
Merck believes the meeting took place at Novotel La
Defense where both men stayed (89).

(125)

Probably

Frankfurt.

this meeting,

Intercontinental

[Merck employee 2]

[Aventis employee 1],

received a
In autumn 1996,
telephone call from Aventis suggesting a meeting at the
Hotel
in
in
preparation for
[Merck employee 7]
printed out on 23 October 1996 the marketing statistics
for methylglucamine for the period January 1995 to
September 1996 (92).
[Aventis
employee 2] and [Merck employee 2] participated in the
meeting. They met in a hotel room which had been
rented by Aventis. The participants agreed that a price
increase of 2,5 % was to be aimed for. The participants
proceeded here on the basis that the list prices should
be raised by this margin, and that a price increase
should also accordingly be aimed for with the larger
customers who do not accept list prices. In addition it
was agreed that Merck and Aventis should only offer list
prices in relation to queries from customers of the other
company, even for larger customers.

(121)

In its response to the statement of objections, Aventis
argues that, as no discussions of prices or similar talks
were held at the meeting,
it should not be included
among the list of cartel meetings (90):

(126) On 24 October 1996,

following the above meeting,
[Merck employee 8] informed the sales department of
Merck Darmstadt of the new prices for 1997 (93).

(122) Although no specific discussions of prices or market
it does
sharing may have taken place at the meeting,
play a role for the running of the cartel, as the purpose
of the meeting was to introduce [Merck employee 2] as
the new cartel contact point for Merck. The participants
in the meeting were the same as in the other cartel
meetings, the introduction procedure was the same as
for [Merck employee 1] in 1989/1990 and, according to
[Merck employee 2], the participants agreed that they
would get in touch during the course of the year. From
that moment on [Merck employee 2] attended cartel
meetings. For those reasons the meeting will figure on
the list of cartel meetings.

(127) The Merck pricelist is dated 24 October 1996 (94). The
Commission does not have the corresponding RP price
list.

(128) For 1997 Merck had a ‘list price' of EUR 16,93 kg (95)
for a delivery over two tonnes, while the corresponding
price for Aventis was EUR 17,02 kg (96).

3.14. Annual meeting 6 October 1997, Novotel La
Defense, Paris

3.13. Annual meeting, about 24 October 1996,
Hotel Intercontinental, Frankfurt

(129) Both parties confirm the meeting (see recitals 99 to

101).

(123) Both parties confirm that an annual meeting took place

in 1996 (see recitals 99 to 101).

(130) The following is a summary of [Merck employee 2]'s

account of the meeting (97).

(124)

[Merck employee 2], who from then on replaced [Merck
employee 1] at the annual meetings, provides a detailed
account of the 1996 annual meeting (91). The following
is a summary of that account.

(87) Doc. 00029—00030, Doc. 00118.
(88) Doc. 0057—0071.
(89) Doc. 00029.
(90) Aventis response to the statement of objections, pp. 20—21,

paragraph 47.

(91) Doc. 00030, Doc. 00118—00119.

(131) A further meeting took place on 6 October 1997.
[Aventis employee 2] had telephoned [Merck employee
2] to arrange the meeting. The participants were the

(92) Doc. 00072—00075.
(93) Doc. 00076—00077.
(94) Doc. 00076—00077.
(95) Doc. 00076. Eurostat average exchange rate for January 1997 used

in conversion.

(96) Doc. 00490. Eurostat average exchange rate for January 1997 used

in conversion.

(97) Doc. 00031, Doc. 00120—00121.

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same as in 1996. Like the year before [Merck employee
2] had asked for a print out of the sales statistics for
methylglucamine. The participants first established that
during the previous year, all customers had remained
with their traditional suppliers. It was again agreed that
the list price should increase by 2 to 3 %, and that a
corresponding attempt should be made to increase the
prices for the largest customers.

(132) As usual

the

information was passed by [Merck
employee 2] to the [employee] responsible, and from
the
to the
companies of the Merck Group (98).

sales department

[employee]

the

via

(133)

(134)

conference

[Merck employee 2] recalls that the meeting probably
the pharmaceutical
took place in the margins of
ingredients
Frankfurt. This
in
recollection is mistaken as, according to the travel
documents of [Merck employee 2], in which the reason
for his journey to Paris is cited as ‘meeting with
Rhone-P' (99), the meeting did in fact take place in Paris,
probably in Novotel La Defense where he was staying.

(CphI)

In its response to the statement of objections, Aventis
argues that it should be assumed that since the meeting
took place in Paris, [Merck employee 2] would have
contacted
the
contrary (100).

representatives

of RPB,

not

the

3.15. Annual meeting, about 7 October 1998,
Frankfurt

(138) Both parties confirm the meeting (see recitals 99 to

101).

(139) The following is a summary of [Merck employee 2]'s

account of the meeting (105).

again [Aventis

(140) A meeting took place either in London or Frankfurt in
autumn 1998. Once
employee 2]
telephoned [Merck employee 2] to arrange the meeting.
The participants were the same as in previous years.
Probably in preparation for
[Merck
employee 10], printed out statistics for methylglucamine
on 7 October 1998 (106). Prices were again discussed at
this meeting.

this meeting,

(141) On 9 October 1998, [Merck employee 10] informed the
sales department and some of the companies of the
Merck Group of the new prices for 1999 (107).

(142) Aventis confirms explicitly that a meeting took place in
September or October 1998. Aventis also claim that this
was the last of the meetings of the cartel (108).

(135) The Commission fails to see any relationship between
the two issues, and consequently sees no reason to
question [Merck employee 2]'s statement that he was
contacted by [Aventis employee 2], on the basis that he
was mistaken about the venue of the meeting.

(143) A travel document of [Aventis employee 2] shows that
she was in Frankfurt on 6 to 8 October 1998, and that
her programme (109)
included a meeting with Merck.
This fits very well with the information from [Merck
employee 2].

(136) Merck issued its price list of 13 October 1997 (101),

while the RP price list is dated 1 December 1997 (102).

(144) The Merck pricelist is dated 9 October 1998 (110), while
the RP pricelist is dated 1 December 1998 (111).

(137)

For 1998 Merck had a ‘list price' of EUR 17,21 kg (103)
for deliveries over two tonnes; the corresponding price
for Aventis was EUR 17,38 kg (104).

(98) Doc. 00088—00089.
(99) Doc. 00078—00087.
(100) Aventis

response to the statement of objections, page 21,

paragraph 49.
(101) Doc. 00088—00089.
(102) Doc. 00485.
(103) Doc. 00088. Eurostat average exchange rate for January 1998

(145) For 1999, Merck had a ‘list price' of EUR 17,90 kg (112)
for deliveries above two tonnes; the corresponding price
for Aventis was EUR 17,99 kg (113).

(105) Doc. 00031—00032, Doc. 00121.
(106) Doc. 00090—00098.
(107) Doc. 00097—00100.
(108) Doc. 9066.
(109) Doc. 00743.
(110) Doc. 00097—00098.
(111) Doc. 00481.
(112) Doc. 00097. Eurostat average exchange rate for January 1999

used for conversion.

used for conversion.

(104) Doc. 00485. Eurostat average exchange rate for January 1998

(113) Doc. 00481. Eurostat average exchange rate for January 1999

used for conversion.

used for conversion.

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3.16. The end of the cartel

(146) The

two companies

differ

considerably

in their

descriptions of how the cartel ended.

(147) According to [Merck employee 2], the last meeting of
in
in autumn 1999 (114). The following is a

the cartel took place at the Hotel Intercontinental
Frankfurt
summary of his account of the meeting.

(148) The same representatives

to know how this
the

from Merck and Aventis
participated at this meeting, as at the previous meeting.
A price increase was again agreed. In addition, at this
meeting the representatives from Aventis mentioned to
[Merck employee 2]
that Aventis had been able to
deliver significantly larger quantities to [Customer 4].
arose. The
Aventis wished
background
of
loss of
to
approximately 21 tonnes was that Aventis quoted its
prices worldwide in French francs, whereas Merck fixed
its prices for Europe in German marks, and for the rest
of the world in US dollars. As a result, Merck was too
expensive in the US in 1999. [Merck employee 2] had
explained that Merck had later reduced prices, and also
intended to compensate for currency fluctuations in this
manner in the future. The representatives from Aventis
agreed to this course of action.

deliveries

these

(149) According to [Merck employee 2], the issue of how the
participants of the meeting ought to react in case of
investigations regarding the methylglucamine meetings
by the authorities was also discussed. It was agreed that
if officially questioned about
the participants should,
to only occasional, coincidental
their contacts, admit
between
contacts,
competitors at fairs. [Merck employee 2]'s impression
was
the
agreements in the vitamins sector. The new position of
[Aventis employee 1] following the merger of between
RP and Hoechst was discussed (115).

employee 1] knew about

common,

example,

[Aventis

that

for

as

is

(150) At Merck, the new prices for 2000 were announced by
[Merck employee 5] on 15 and 19 October 1999 (116).
However, already on 4 October 1999, [Merck employee
2] instructed [Merck employee 5] by e-mail to announce
a price increase for Brazil (117).

(151) As mentioned above,

the Aventis version of events
differs considerably from that of Merck. According to
Aventis, the last formal meeting of the cartel took place

(114) Doc. 00032—00033, Doc. 00121—00122.
(115) Doc. 00122.
(116) Doc. 00105—00110.
(117) Doc. 00112—00113.

(152)

(153)

(154)

in September or October 1998. A meeting did take
place between the parties in November 1999, during
which Aventis informed Merck about the termination of
the agreement.

Indeed, in its response to the statement of objections,
Aventis makes the following statement ‘Contrary to the
assertion in the statement of objections that “Aventis
disputes” that a meeting took place in 1999, RPB does
not dispute that a meeting took place at that time. It
does dispute that a cartel meeting took place. RPB's
reply of 1 February 2002 states that the last meeting at
which the parties discussed prices and customers in
furtherance of their agreement took place in autumn
1998. In November 1999, a meeting did indeed take
place between [Aventis employee 1], [Aventis employee
2] and [Merck employee 2], who were attending the
in
Conference for Pharmaceutical
(CphI)
Frankfurt. During the CphI
employee 1]
informed Merck of the termination of the meglumine
agreement'.

Ingredients
[Aventis

issue

concerned [Aventis

‘[Aventis employee 1] addressed two issues with [Merck
employee 2] that had prompted [Aventis employee 1]'s
decision to terminate the agreement with Merck. The
employee 1]'s new
first
position following the merger of Rhône-Poulenc SA and
Hoechst AG. [Aventis employee 1] explained to [Merck
employee 2] that the […] sales departments of RPB and
Hoechst Marion Roussel SA (a subsidiary of Hoechst
AG) would merge and be placed under the leadership of
[Aventis employee 1]'s counterpart at Hoechst Marion
Roussel. Consequently, [Aventis employee 1] explained
that he would no longer have final authority for the
pricing of products, including meglumine, and that he
could not
to any further understandings
commit
concerning meglumine as a result.'

had

allegations

investigating

second issue

concerned investigations

‘The
in the
vitamins sector. It was common knowledge between the
parties at the November 1999 meeting that government
authorities
of
been
to certain
anti-competitive behaviour with respect
vitamins. At no time did the meeting participants
discuss how to react
government
authorities investigated sales activities with respect to
meglumine. According to [Aventis employee 1], there
was no reason to have such a discussion, as meglumine
was a low-volume and unprofitable product, and neither
party anticipated an investigation into their activities.
[Aventis employee 1] also assumed that if government
authorities conducted an investigation concerning the
sales of meglumine, the truth would come to light from
him or other sources' (118).

in the

event

(155) The implication of Merck's version of events is that as
new prices were agreed in the autumn 1999 meeting

(118) Aventis

response to the statement of objections, pp. 7—8,

paragraphs 15—17.

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and as no further contacts were undertaken between the
participants, the infringement ended with the meeting
between Merck and the Commission on 27 September
2000.

(160) The

forceful

statement

from [Merck employee 2]
indicates that both the cartel and the market-sharing
agreement
concerning [customer 2] mentioned by
Aventis were in force at the time.

(156) The implication of Aventis version of events is that the
infringement ended on 31 December 1999, the last day
the prices agreed at the 1998 meeting were applicable.

(161)

that

‘legitimate business

In its response to the statement of objections, Aventis
argues
the
existence of a cartel, could have easily motivated the
than market
prices
decision
share' (122).

strategies, not

increase

rather

to

(157) Travel documents seized from the office of [Aventis
employee 2] show that she was in Frankfurt on 29 and
30 September to meet Merck (119). Such a date for a
in well with Merck's
cartel meeting would tie
announcement dates for the new prices (see recital 150),
and would seem to confirm the Merck version of events.

(158)

In its response to the statement of objections, Merck
following
provides an explanation by making the
statement ‘[Aventis employee 2] was in Frankfurt on 29
and 30 September 1999 for a [another product]
customer meeting with Merck,
discuss
meglumine as assumed in the statement of objections.
[Aventis employee 1] did not attend this meeting.
[Aventis employee 2] attended the meeting alone in her
[professional capacity]' (120).

not

to

(159) An internal Merck e-mail exchange of October 1999 has
also been used to demonstrate the validity of the Merck
version of events. On 19 October, after having been
informed of the new prices for 2000, [Merck employee
9] sent an e-mail
to [Merck employee 5] asking to
decrease the price for [customer 2], as his target for the
following year was not to increase the price but to get
more market share. The e-mail was forwarded to [Merck
employee 2] by [Merck employee 5], who asked
whether a price reduction was sensible. In his answer to
[Merck employee 5] dated 25 October, [Merck employee
2] made the following comment: ‘no, that is not in our
intention!!!! We do not want additional market share but
want to keep our current market share with a higher
price. [Customer 5] is ok but the price for [customer 2]
is 108,– FF. Please inform [Merck employee 9] about
this. If he has problems he should call me' (121).

(119) Doc. 00736—00738.
(120) Aventis

response to the statement of objections, page 10,

paragraph 21.

keinen

(121) Doc. 00044—00045 ‘nein das ist nicht in unserem Sinn!!!! Wir
wollen
unseren
zusätzlichen Marktanteil,
bestehenden MA mit einem höheren Preis halten. [Customer 5] ist
o.k., aber der Preis für [Customer 2] ist FF 108,–. Bitte teilen Sie
dies [Merck employee 9] mit. Falls er Probleme hat, soll er mich
anrufen'.

sondern

(162)

In any case the Merck e-mail exchange does not strictly
speaking contradict the Aventis version of events, as
according to Aventis it was only in early November
1999 that Aventis informed Merck of the termination of
the agreement.

(163) For 2000, Merck had a ‘list price' of EUR 18,15 kg (123)
for deliveries over two tonnes; the corresponding price
for Aventis was EUR 18,60 kg (124). The difference in
‘list prices' is considerably larger than in previous years.

(164) The Commission is not

in the possession of hard
evidence, which would make it possible for it to decide
which of the two versions of events is the correct one.

(165) Consequently, for the purpose of this Decision, the time
period used as a basis for the assessment of any fine
ends on 31 December 1999, which was the last day of
validity for the prices agreed in the 1998 cartel meeting.
None of the parties will be credited with having taken
the initiative to end the infringement.

PART II — LEGAL ASSESSMENT

1. JURISDICTION

(166) The arrangements applied to the world market and
therefore to the whole territory of the EEA, as the cartel
members had sales worldwide, as well as in the majority
of the Member States, and one of them to one of the
EFTA countries party to the EEA Agreement (125).

(122) Aventis

response to the statement of objections, page 10,

paragraph 20.

(123) Doc. 00105. Eurostat average exchange rate of January 2000 used

for conversion.

(124) Doc. 00787. Eurostat average exchange rate of January 2000 used

for conversion.

(125) Doc. 00696.

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(167) The EEA Agreement contains provisions analogous to
the Treaty. This Decision includes the application of the
EEA competition rules from 1 January 1994, the date
on which the Agreement came into force (126).

(168)

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

(173)

(169) Pursuant to Article 56(1)(c) of the EEA Agreement, the
Commission is the competent authority regarding an
infringement of Article 53(1) of the EEA Agreement
when the infringement appreciably affects trade between
the Member States. This applies to the present case.

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

of

of

the

First

Instance

In its judgment in Joined Cases T-305/94 etc. Limburgse
Vinyl Maatschappij NV and others v Commission (PVC II),
the Court
European
Communities (127) stated that ‘it is well established in
the case-law that for there to be an agreement within
the meaning of Article 81(1) of
is
sufficient for the undertakings to have expressed their
joint intention to behave on the market in a certain
way' (128). Thus, an agreement
the purposes of
Article 81(1) of the Treaty and/or Article 53(1) of the
EEA Agreement does not require the same certainty as
would
a
be necessary
commercial contract at civil law.

enforcement of

the Treaty,

the

for

for

it

2. APPLICATION OF ARTICLE 81 OF THE TREATY AND
ARTICLE 53 OF THE EEA AGREEMENT

2.1. Article 81(1) of the Treaty and Article 53(1) of
the EEA Agreement

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

trading conditions,

2.2. Agreements and concerted practices

(171) Article 81(1) of
Agreement
prohibit
associations and concerted practices.

the Treaty and 53(1) of
agreements,

the EEA
of

decisions

(172) An agreement can be said to exist when the parties
adhere to a common plan which limits or tends to limit

to the

themselves

(174) Case-law does not deprive undertakings of the right to
existing or
adapt
intelligently
anticipated conduct of their competitors. However,
it
strictly precludes any direct or indirect contact between
such operators the object or effect of which is either to
influence the conduct on the market of an actual or
potential competitor or to disclose to such a competitor
the course of conduct which they themselves have
decided to adopt or contemplate adopting on the
market (129).

(175) Thus conduct may fall under Article 81(1) of the Treaty
and Article 53(1) of the EEA Agreement as a ‘concerted
practice' even where the parties have not subscribed to
a common plan defining their action in the market but
adopt or adhere to collusive devices which facilitate the
coordination of their commercial behaviour (130).

(176) The Commission is not required to characterise an
infringement as exclusively an agreement or a concerted
It
practice. The concepts are fluid and may overlap.
is
would be artificial analytically to subdivide what
clearly a continuing common enterprise having one and

(127) The case-law of

Justice and the Court of First
Instance in relation to the interpretation of Article 81 EC applies
equally to Article 53 EEA.

the Court of

(128) [1999] ECR II-931, paragraph 715.
(129) Joined Cases 40—48/73, etc. Suiker Unie and others v Commission

[1975] ECR 1663.

(126) See Final Act of the Agreement on the European Economic Area

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

(OJ L 1, 3.1.1994, p. 3).

SpA [1999] ECR I-4125, paragraph 81.

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the same overall objective into several discrete forms of
infringement. A cartel may therefore be an agreement
and a concerted practice at the same time (131).

(181) Article 81(1) of the Treaty and Article 53(1) of the EEA
Agreement expressly mention as restricting competition
agreements which, inter alia:

2.3. Single, continuous infringement

for close to 100 % of

(177) From 22 November 1990 to the end of December 1999,
there is ample evidence to show the existence of a single
and continuous collusion in the world market
for
methylglucamine between Merck and Aventis which
together account
the market.
Indeed the parties designed and adhered to a common
global plan to limit their individual commercial conduct
in virtually every area where they could have competed.
The agreement to enter into this global plan with a view
to restricting competition can be dated back to at least
22 November 1990. This collusion was in pursuit of a
single anti-competitive economic aim: preventing any
price competition by agreeing on most parameters of
competition in the market for methylglucamine.

agreements

(178) Both Merck and Aventis subscribed to this plan. It was
developed and implemented over a period of almost 10
through a complex of collusive arrangements,
years,
specific
practices,
and/or
complementing the basic agreement on price fixing and
market sharing by allocation of individual customers,
pursuing the same common purpose of eliminating
competition between them. The participants in these
unlawful conducts knew or ought to have known that it
was part of an overall plan in pursuit of that common
unlawful object.

concerted

of

collusive

EEA market
the Commission considers that
arrangements

(179) Given the common design and common objective of
for
competition in the
eliminating
the
methylglucamine,
arrangement
complex
mentioned above has as its object
the restriction of
competition within the meaning of Article 81(1) of the
Treaty and Article 53(1) of the EEA Agreement. These
arrangements are described in detail in the factual part
of
in question
therefore constituted a single continuing infringement of
Article 81(1) of the Treaty and of Article 53(1) of the
EEA Agreement.

the present Decision. The conduct

2.4. Restriction of competition

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

effect of restricting competition.

(131) See judgment in Case T-7/89 Hercules v Commission [1991] ECR

II-1711, paragraph 264.

— directly or indirectly fix selling prices or any other

trading conditions,

— limit or control production, markets or technical

development,

— share markets.

(182) These are the essential characteristics of the horizontal
arrangements under consideration in this case, price
being the main instrument of competition. The various
collusive arrangements and mechanisms adopted by the
producers were all ultimately aimed at fixing the price
and removing any competition on price. Market sharing
and price
restrict
their
competition within the meaning of Article 81(1) of the
Treaty and Article 53(1) of the EEA Agreement.

very nature

fixing

by

(183)

In order to conclude that Articles 81(1) of the Treaty
and 53(1) of the EEA Agreement apply, there is no need
to consider the actual effects upon competition of an
agreement once it is established that the agreements had
the object of restricting competition (132).

(184) The effect upon competition of the cartel has to be
considered as a whole and in the light of the totality of
the circumstances, but in the complex of agreements
and arrangements,
can be
identified as relevant in order to find a breach of Article
81(1) of
the EEA
the Treaty and Article 53(1) of
Agreement:

following elements

the

— exchanging price and and customer-related sensitive

information (see recitals 76 to 78),

— market sharing by allocating customers (see recitals

90 to 97),

— agreeing concerted prices and price increases (see

recitals 83 to 85),

— adapting individual conduct and pricing in order to
the agreed market

ensure
the maintenance of
sharing (see recitals 90 to 97),

(132) Judgment, Ciment

[2000]

II-491, paragraph 3927. See also
judgment in Cases T-374/94, T-375/94, T-384/94 and T-388/94,
European Night Services [1998] ECR II-3196, paragraph 136, where
the Court has stated this in specific relation to price-fixing
agreements.

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— participating in regular meetings and having other
contacts in order to agree the above restrictions and
to implement and/or modify them as required (see
recitals 99 to 101).

methylglucamine directly included all
most populous Member States of the EEA.

the largest and

2.5. Effect upon trade between the Member States
and between the EEA contracting parties

(185) Article 81 of the Treaty prohibits all agreements which
may affect
trade between Member States and which
have as their object or effect the prevention, restriction
common
or distortion of
market.

competition within the

(186) Article 53 of

the EEA Agreement prohibits

all
agreements which may affect trade between EEA States
and which have as their object or effect the prevention,
restriction or distortion of competition within the
territory covered by the EEA Agreement.

(187) Between them Merck and Aventis have 100 % of the
Community and EEA market for methylglucamine.

(188) For both Merck and Aventis, export represents the large

majority of income on methylglucamine.

the

between

producers

agreement

(189) Therefore over the period considered, the continuing
cartel
of
methylglucamine had an appreciable effect upon trade
between Member States. In the EEA, though the level of
sales is rather low, the agreement had an appreciable
effect, both directly, as the parties did some direct sales
in particular in Norway, and indirectly, as the price of
the end product was affected by the existence of the
the relevant
cartel
geographic market.

in the EEA as

in the rest of

(190)

In its response to the statement of objections, Aventis
questions whether it is correct that the cartel covered
the large majority of
the
agreement had any appreciable effect in EFTA.

the EEA, and whether

(193) As Merck and Aventis controlled 100 % of the world
market for methylglucamine, the fact that little or no
methylglucamine was exported directly to the EFTA
countries only reflect
these countries were not
containing methylglucamine
producing
products
the EFTA
themselves. There can be no doubt
countries had a considerable import of such products,
and that the indirect effect was therefore considerable.

that

that

2.6. Provisions of competition rules applicable to
Austria, Finland, Norway and Sweden

(194) The EEA agreement entered into force on 1 January
1994. For the period prior to that date during which
the cartel operated, the only provision applicable to the
present proceedings is Article 81 of the Treaty; in so far
as the cartel arrangements within that period restricted
competition in Austria, Finland, Iceland, Liechtenstein,
Norway and Sweden (then EFTA Member States) they
were not caught by that provision.

(195)

the cartel

In the period 1 January to 31 December 1994,
the
provisions of the EEA Agreement applied to the six
EFTA Member States;
thus constituted a
violation of Article 53(1) of the EEA Agreement as well
as of Article 81(1) of the Treaty, and the Commission is
competent to apply both provisions. The restriction of
six EFTA states during this
competition in these
one-year period falls under Article 53(1) of the EEA
Agreement.

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

(191) Documents provided by Merck and RPB indicate that in
1998 and 1999, both producers
sold to only 10
Member States and no EFTA country. Whether 10 out
of 18 countries constitutes a ‘large majority of the EEA'
is, in their opinion questionable (133).

(197)

In practice, it follows from the above that in so far as
the cartel operated in Austria, Finland, Norway and
Sweden,
it constituted a violation of the EEA and/or
Community competition rules as from 1 January 1994.

(192) This argument must be rejected. Although the producers
did not sell directly to all the countries in the EEA, the
agreement had at least an indirect effect in all or nearly
all of them. Furthermore, the countries which did buy

(133) Aventis response to the statement of objections, pp. 22—23,

paragraph 54.

2.7. Duration of the infringement

(198) The Commission has

the parties
designed and adhered to a common agreement with a
least as from the
view to restricting competition at

information that

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meeting held on 22 November 1990 (see recitals 73 to
74). As regards the Community, for the purpose of this
Decision the infringement is therefore established with
effect with the meeting on 22 November 1990. For
EFTA the infringement starts with the entry into force
of the EEA Agreement on 1 January 1994.

(204)

In order to determine whether a parent company should
be held responsible for
the unlawful conduct of a
subsidiary, it is necessary to establish that the subsidiary
‘does not decide independently upon its own conduct
on the market, but carries out, in all material respects,
the instructions given to it by the parent company' (135).

(199) As explained in recital 164, the Commission does not
have enough hard evidence to determine which of the
conflicting views on the exact finishing date for the
cartel is correct.

(200) The prices agreed at the last mutually recognised cartel
meeting in 1998 were valid until 31 December 1999.
For this reason, for the purpose of this Decision the end
of the infringement will be taken to be be 31 December
1999.

(201) For

that

the purpose of

the present proceedings,

is
committed
an
established
infringement of Article 81(1) of
the Treaty and of
Article 53(1) of the EEA Agreement from 22 November
1990 to 31 December 1999.

producers

both

it

(205) When an infringement of Article 81(1) of the Treaty
and/or Article 53(1) of the EEA Agreement is found to
have been committed,
is necessary to identify the
natural or legal person who was responsible for the
operation of
the time when the
infringement was committed.

the undertaking at

it

(206) When an undertaking commits an infringement of
Article 81(1) of the Treaty and/or Article 53(1) of the
EEA Agreement and later disposes of the assets that
were the vehicle of
the infringement and withdraws
from the market concerned, the undertaking in question
will still be held responsible for the infringement if it is
still in existence (136).

(207)

If the undertaking which has acquired the assets carries
on the violation of Article 81(1) of the Treaty and/or
Article 53(1) of the EEA Agreement,
liability for the
infringement should be apportioned between the seller
and the acquirer of the infringing assets (137).

2.8. Liability for the infringement

(202)

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

2.8.2. Addressees

2.8.1. Principles applicable

(208) Over the entire period of reference for the establishment
of the infringement, Merck KgaA participated directly in
the cartel. They will consequently be addressees of this
Decision.

(203) The subject of Article 81 of the Treaty and Article 53 of
the EEA Agreement is the ‘undertaking', a concept that
is not
identical with the notion of corporate legal
personality in national commercial company or fiscal
law. The term ‘undertaking' is not defined in the Treaty,
nor in the EEA Agreement. It may refer to any entity
engaged in a commercial activity. In the context of large
corporate groups,
individual
subgroups or subsidiary companies (134) may be treated
as an ‘undertaking' for purposes of Article 81 of the
Treaty and/or Article 53 of the EEA Agreement.

the whole group or

(134) The issue of who is the appropriate addressee of proceedings is
entirely separate from the question of whether
‘agreements'
between companies in the same group can fall under Article 81
of the Treaty or Article 53 of the EEA Agreement.

(209) Rhône-Poulenc

and

Biochimie

(RPB)
took part

produces
methylglucamine
to the
directly
infringement as it was represented in the meeting where
the original anticompetitive agreement was agreed as
well as in all subsequent meetings described above. In
its response to the statement of objections, Aventis
states,
‘The infringement has been committed by RPB
and by no other affiliated company. Indeed the activities

(135) Case 48/69 Imperial Chemical

Industries

[1972]

ECR 619

paragraphs 132—133.

(136) Case T-6/89 Enichem Anic SpA v Commission (Polypropylene)
[1991] ECR II 1623, Case C-49/92 P Commission v Anic
Partecipazioni SpA [1999] ECR I-4125, paragraph 81.

(137) Commission Decision 89/190/EEC in Case IV/31.865 — PVC,

paragraph 43 (OJ L 74, 17.3.1989, p. 1).

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covered by the statement of objections relate exclusively
to RPB' (138). They will consequently be the addressees
of this Decision.

(210)

In the statement of objections, the Commission included
Aventis Pharma SA among the addressees, stating the
following reasons for that decision.

(211)

‘Notably, correspondence between the parties and the
Commission shows that the defence of RPB is effectively
being handled by Aventis Pharma. Correspondence from
the lawyers is being copied to [Aventis employee 4] and
[Aventis employee 5] (139). This connection shows that
Aventis Pharma exercises effective influence over RPB'.

(212)

(213)

(214)

by

that

that

‘RPB belongs 100 % to Aventis Pharma (previously RP
Rorer), which again belongs 100 % to Aventis SA. While
the day-to-day decisions
it does appear
the
taken
concerning methylglucamine was
commercial director of RPB ([Aventis employee 1]), the
note of from [Aventis employee 3] from RP Rorer of 6
November 1991 shows clearly that RP Rorer
(later
Aventis Pharma) followed the commercial behaviour of
RPB very closely (140). Such monitoring even went up to
representatives
the point where RP Rorers
gave
instructions vis-a-vis one client
to representatives of
[Aventis employee 3] was
RPB. Aventis claims that
working under
[Aventis employee
1] (141). It remains to be explained however, why the
note of 6 November 1991 was written on RP Rorer
paper. On the basis of the above the Commission has
decided to address
to
Aventis Pharma SA'.

the statement of objections

the direction of

In its response to the statement of objections, Aventis
argues that only RPB should be held responsible for the
infringement. The only argument
this
claim is the statement cited in recital 209 (142). Aventis
does not attempt to explain the circumstances under
which [Aventis employee 3] wrote the note of 6
November 1991, nor does it address the influence of
Aventis Pharma on decision making in Rhône-Poulenc
Biochimie.

in support of

follows that,

in its response to the statement of
It
any of
the
address
objections, Aventis does not
Commission's
forward in the
statement of objections. Aventis Pharma SA will be an
addressee of this Decision, and will be considered as
jointly and severally liable for any fine imposed.

arguments brought

(138) Aventis

response

to the

statement of objections, page 3,

paragraph 7, and page 28, paragraph 71.

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

addressed

the

be

to

Decision will
undertakings:

— Merck KgaA

— Rhône-Poulenc Biochimie SA

— Aventis Pharma SA.

3. REMEDIES

3.1. Article 3 of Council Regulation No 17

(216) Where

the Commission finds

an
infringement of Article 81 of the Treaty or of Article 53
of the EEA Agreement, it may require the undertakings
concerned to bring such infringements to an end in
accordance with Article 3 of Council Regulation No 17.

there

that

is

(217) The undertakings to which this Decision is addressed
should be required to bring the infringement to an end
(if they have not already done so) and henceforth to
refrain from any agreement or concerted practice which
may have the same or similar object or effect, including
any exchange of commercial information by which the
participants are directly or indirectly informed of their
mutual individual sales data.

3.2. Article 15(2) of Regulation No 17

(218) Pursuant

to Article 15(2) of Regulation No 17,

the
Commission may by decision impose upon undertakings
fines of 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
either
participating
intentionally or negligently, they infringe Article 81(1)
of
the EEA
Agreement.

the Treaty and/or Article 53(1) of

infringement where,

the

in

(219) The Commission intends to impose fines in this case for
the abovementioned infringements on the undertakings
to which this Decision is addressed.

(139) Doc. 8929—8930.
(140) Doc. 00455.
(141) Doc. 8926.
(142) Aventis

response

paragraph 7.

to the

statement of objections, page 3,

(220)

regard

In setting the amount of any fine the Commission must
and
have
circumstances
the
particularly the gravity and the duration of
infringement.

relevant

all

to

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(221)

(222)

the

infringement,

the
In assessing the gravity of
Commission will take account of its nature,
its actual
impact on the market, where this can be measured, and
the size of the relevant geographic market. The role
played by each undertaking party to the infringement
will be assessed on an individual basis.

In relation to each undertaking, the Commission will
reflect in the fine imposed any aggravating or mitigating
the
circumstances
Leniency Notice. This assessment can only however be
made at the end of this Decision.

appropriate,

and will

apply,

as

(223) Any fines should be set at a level that ensures sufficient

deterrence.

3.3. The amount of the fine

(224) The cartel constituted a deliberate infringement of
the EEA
Articles 81(1) of
restrictive
Agreement: with full knowledge of
character of
their
illegality, the producers of methylglucamine combined
to set up a secret and continuous system designed to
restrict competition.

the Treaty and 53(1) of
the

their actions and, moreover, of

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

3.3.1.3. 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 o n t h e
m e t h y l g l u c a m i n e m a r k e t i n t h e E E A

(230) The infringement was committed by undertakings which
for the duration of the cartel covered the entire world
market
the
arrangement was specifically aimed at raising prices
higher than they would otherwise have been, and that
they had an
these arrangements were implemented,
actual impact on the market.

for methylglucamine.

Given

that

(231) There is no need to quantify in detail the extent to
which prices differed from those 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
the product,
have affected the price development of
thereby making
draw
extremely
it
conclusions on the relative importance of all possible
causal effects.

difficult

to

3.3.1. The basic amount

(225) The basic amount of the fine is determined according to

the gravity and duration of the infringement.

(232)

3.3.1.1. G r a v i t y

In its response to the statement of objections, Aventis
argues that the infringement had few, if any, effects on
prices paid by final customers for the contrast products,
because the cost of methylglucamine is such a small
part of the total cost. Aventis analyses the cost structure
for
for
share
The
methylglucamine is 2,03 % of the retail price (143).

products.

highest

nine

(226)

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

its nature,

(233) The Commission must reject

this argument, as not
relevant to the issue at hand. The share of the total
price of the end product that methylglucamine makes
up is irrelevant to the impact of the infringement.

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

(227) The present

infringement consisted of market-sharing
and price-fixing practices, which are by their very
nature the worst kind of violation of Article 81(1) of
the Treaty and 53(1) of the EEA Agreement.

of

(228) By its very nature,
the

the implementation of a cartel
agreement
leads
automatically to an important distortion of competition,
which is of exclusive benefit to producers participating
to customers and,
in the cartel and is detrimental
ultimately, to the general public.

described

above

type

3.3.1.4. 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

(234) Every part of the common market and the EEA was
under the influence of
the cartel, either directly or
indirectly. For the purposes of calculating gravity, the
the
Commission therefore considers
Community and, following its creation, the EEA, to have
been affected by the cartel.

the entirety of

(143) Aventis response to the statement of objections, pp. 30—31,

paragraphs 74—75.

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3.3.1.5. C o n c l u s i o n o n t h e g r a v i t y o f t h e

(240)

i n f r i n g e m e n t

In its response to the statement of objections, Aventis
argues that because Aventis has cooperated with the
Commission on previous cases and did try to uncover
possible cartels in the company, the fine should not be
increased to ensure a sufficient deterrent effect.

its actual

(235) Taking into account the nature of the behaviour under
scrutiny,
impact on the methylglucamine
market and the fact that it influenced the whole of the
common market and, following its creation, the whole
EEA, the Commission considers that the undertakings
concerned by this Decision have committed a very
serious infringement of Articles 81(1) of the Treaty and
53(1) of
the EEA Agreement. Nevertheless, without
prejudice to the very serious nature of the infringement,
the Commission will,
in this case, also take into
consideration the limited size of the product market in
terms of value.

3.3.2. Classification of cartel participants

(236) Within the category of very serious infringements, the
proposed scale of likely fines makes it possible to apply
differential treatment to undertakings in order to take
account of
the
offenders to cause significant damage to competition
and to set
the fine at a level which ensures it has
sufficient deterrent effect.

the effective economic capacity of

(237)

case, which involves only

In the present
two
undertakings, which by definition are both indispensable
for the working of the cartel (being the only actors on
the market
it will not be necessary to
classify the cartel participants.

in question),

(243)

(238) On the basis of the above the basic amounts of the fines

determined for gravity as follows:

(241) Aventis

‘It

be

states,

should

emphasised

investigations

that
successor
Rhône-Poulenc SA (and subsequently its
their affiliates undertook
Aventis SA) and various of
potential
into
important
internal
it
violations of EC competition law.
the
should
they
recalled
be
the largest cartels revealed until
Commission two of
now, i.e, the vitamins and the methionine arrangements.
In the same spirit,
the Respondent questioned its
employees with the goal of shedding light on the
existence of any anti-competitive arrangements' (144).

In this respect,
disclosed

that

to

(242) The Commission recognises

the

that Aventis provided
valuable information in the vitamins and methionine
cases (145). However the Commission cannot subscribe
to the principle
company has
that because
cooperated in one case, it should receive a lower fine in
another. Aventis was rewarded for its cooperation with
it would not be
leniency in these previous cases,
reasonable for this leniency to extend to other cases.
Similarly, the efforts of Aventis did lead to the discovery
of one or more cartels in the company, and Aventis was
rewarded for its information with leniency. It would not
be reasonable for the fines to be reduced just because
Aventis tried to find information about a cartel.

In its response to the statement of objections, Merck
is a much smaller company than
points out
Aventis,
for
methylglucamine is smaller than that of Aventis (146).

production

it
that

capacity

that

and

its

— Merck KgaA: EUR 2,5 million

— Rhône-Poulenc Biochimie SA/Aventis Pharma SA:

EUR 2,5 million.

(244) The Commission accepts than Aventis as a whole is a
much larger company than Merck. However,
for the
purpose of this Decision, the addressee is not Aventis
SA, but
subsidiaries Aventis Pharma SA and
Rhône-Poulenc Biochimie SA. The Commission further
notes that both these companies are smaller than Merck.

its

3.3.2.1. S u f f i c i e n t d e t e r r e n c e

(239)

the

fact

that

and takes

account of

In order to ensure that the fine has a sufficient deterrent
effect
large
undertakings have legal and economic knowledge and
easily to
infrastructures which enable
recognise that their conduct constitutes an infringement
and be aware of the consequences stemming from it
further
under competition law,
the
determine whether any further adjustment of
starting amount is needed for any undertaking.

the Commission will

them more

(245) As described in recital 14, the Commission has not been
able to determine with certainty which of
the two
parties has the largest production capacity. It is worth
noting however
in the EEA Merck has had
somewhat larger sales of methylglucamine than Aventis
in recent years (see recitals 7 and 8).

that

(144) Aventis response to the statement of objections, pp. 32—33,

paragraphs 80—81.

(145) Commission decisions of 21 November 2001 (case 37.512) and of

2 July 2002 (case 37.519).

(146) Merck response to the statement of objections, pp. 10—11,

paragraphs 23—24.

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(246)

turnover of EUR 7 528
In 2001 Merck had a total
million (147). In the same year the turnover for RPB was
EUR [around 110] million (148) and for Aventis Pharma
SA [around EUR 2 billion] (149).

(252)

(247) On the basis of

the above,

the need for deterrence
requires that the starting point of the fine determined in
recital 238 should be increased by 100 % to EUR 5,0
million as regards Merck. No multiplying factor will be
applied to Aventis Pharma/Rhône-Poulenc Biochimie.

3.3.3. Duration of the infringement

(248) Rhône-Poulenc Biochimie

and Merck KgaA have
infringed Article 81(1) of the Treaty from November
1990 to 31 December 1999 and Article 53(1) of the
EEA Agreement
from 1 January 1994 until 31
December 1999. It is therefore concluded that all parties
infringed Article 81(1) of the Treaty for a period of
nineyears, and Article 53(1) of the EEA Agreement for a
period of six years. The starting amount of the fine
should therefore be increased by 90 % for both.

3.3.4. Conclusion on the basic amounts

(249) Basic amounts of the fines should therefore be set as

follows:

— Merck KgaA: EUR 9,5 million

— Rhône-Poulenc Biochimie SA/Aventis Pharma SA:

EUR 4,75 million.

3.3.5. Aggravating circumstances

3.3.5.1. R o l e o f l e a d e r i n t h e i n f r i n g e m e n t

(250)

In their responses to the statement of objections both
parties attempt to demonstrate that they did not act as a
leader in the cartel. There are no indications in the file
that either party played the role of ringleader.

(251) The Commission considers that no specific ringleader

can therefore be identified.

(147) Fax from Freshfields Bruckhaus Deringer of 21 October 2002.
(148) Doc. 8935.
(149) Fax from Jones, Day, Reavis & Pogue of 31 October 2002.

3.3.6. Attenuating circumstances

In its response to the statement of objections, Aventis
argues that the depressed state of the methylglucamine
attenuating
seen
market
circumstance (150).

should

an

be

as

(253) The Commission does not consider that it can be stated
that the methylglucamine market as a whole can be
characterised as a market in crisis because the market is
stagnating or slowly declining. In general, the stagnating
or declining state of a market does not constitute an
attenuating circumstance in the fixing of a fine.

(254)

In its response to the statement of objections, Aventis
argues that the fact that it terminated the infringement
prior to the Commission's inspection at RPB's premises
on 15 January 2001 should be seen as an attenuating
circumstance (151).

(255) The Commission notes firstly that

in principle early
termination is not taken into account as an attenuating
circumstance in cartel cases which represent hard-core
infringements,
the
intervention of the Commission can even be seen as an
aggravating circumstance.

the continuation of which after

(256) Secondly

it makes no sense

early
termination for past infringements which lasted many
years and could be terminated for different reasons.

to speak of

the
(257) Thirdly, as discussed in recitals 146 to 164,
the
Commission has been unable, on the basis of
the
evidence
if
to it,
terminated as a result of Aventis/RPB
infringement
initiative in November 1999 or as a result of
the
meeting between the Commission services and Merck
on 27 September 2000.

to determine

submitted

(258) Consequently, the simple fact that the infringement was
terminated prior to the Commission's inspections at
RPB's premises cannot be seen as an attenuating
circumstance.

(259)

that

In its response to the statement of objections, Aventis
points out
it has initiated extensive compliance
programmes, which resulted in the disclosure of other
agreements. It was a mistake that the methylglucamine
agreement was not
identified and disclosed to the
Commission (152).

(260) The Commission welcomes the fact that Aventis has set
up an antitrust law compliance policy. It nevertheless
this initiative cannot, as a prevention
considers that

(150) Aventis response to the statement of objections, pp. 34—35,

paragraphs 86—87.

(151) Aventis

response to the statement of objections, page 35,

paragraph 88.

(152) Aventis

response to the statement of objections, page 33,

paragraph 83.

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tool, dispense the Commission from its duty to sanction
infringement of the competition rules. The Commission
will not consider
the compliance
programme by Aventis as a mitigating circumstance
justifying a reduction in fine.

the adoption of

(266) Merck also points out that they cooperated fully, on a
continuous basis and expeditiously throughout
the
Commission's administrative procedure and provided the
Commission with all evidence in its possession or
available to it (155).

(261)

It is therefore concluded that there are no mitigating
circumstances applicable to the participants
in the
affecting the methylglucamine
present
market.

infringement

(267) Merck also points out that it ended its involvement at
the latest at the time when it submitted its evidence to
the Commission. Furthermore it did not take any steps
to coerce RPB to participate in the infringement (156).

3.3.7. Application of the Leniency Notice

the investigation into the infringement

(262) To various degrees the adressees of the this Decision
have cooperated with the Commission at different stages
of
the
purpose of receiving the favourable treatment set out in
In order to meet the legitimate
the Leniency Notice.
expectations of the undertakings concerned as to the
non-imposition or reduction of the fines on the basis of
their
following section examines
whether the parties concerned satisfied the conditions
set out in the Notice.

cooperation,

the

for

3.3.7.1. N o n - i m p o s i t i o n o f a f i n e o r a v e r y

s u b s t a n t i a l r e d u c t i o n o f i t s a m o u n t
( ‘ S e c t i o n B ' )

(263) Merck submits that it meets the conditions set out in
both the 1996 and 2002 Leniency Notices in order to
obtain an exemption from the fine that would otherwise
have been imposed (153).

(264) Merck argues

that based on legal principles

in
Community and Member State law, through technically
the 1996 notice applies, it should benefit from the 2002
Leniency Notice in so far as it is more lenient.

(265) Merck points out

that

it met with the competent
Commission officials on 27 September 2000 and
expressed its wish to cooperate with the Commission.
Merck gave an oral description of the cartel activity and
sent the Commission a more detailed written account
on 20 October 2000. Merck was thereby the first
company
evidence which enabled the
Commission to adopt a decision to carry out an
investigation (154).

to submit

that

‘From 14 February 2002,

(268) As to the applicable leniency regime, the Commission
stated in paragraph 28 of the 2002 Commission notice
on immunity from fines and reduction of fines in cartel
cases (157)
this notice
replaces the 1996 notice for all cases in which no
undertaking has contacted the Commission in order to
take advantage of the favourable treatment set out in
that notice'. Merck first contacted the Commission
concerning this case in 2000. Consequently the 2002
notice is not applicable in the present case.

(269) The Commission accepts

cartel

affecting

that Merck was

the first
undertaking to submit decisive information on the
the EEA in the
a
existence of
methylglucamine industry. That
information was first
provided in a meeting on 27 September 1999 in
Brussels between Merck and the Commission after
which the Commission carried out an investigation at
the premises of Rhône-Poulenc Biochimie. Merck
therefore fulfills the conditions as set out in Section B of
the 1996 Leniency Notice.

(270) The Commission notes that it has been satisfied with the

cooperation offered by Merck.

(271) The Commission finally notes

substantially
contest
Commission's statement of objections.

facts

the

that Merck did not
the

described

in

(272) Merck should therefore be granted a 100 % reduction of
the fine that would otherwise have been imposed had it
not cooperated with the Commission.

3.3.7.2. S u b s t a n t i a l r e d u c t i o n i n a f i n e

( ‘ S e c t i o n C ' )

(273) Aventis Pharma or Rhône-Poulenc Biochimie were not
to provide the Commission with decisive

the first

(153) Merck response
paragraph 59.
(154) Merck response
paragraph 97.

to the

statement of objections, page 22,

to the

statement of objections, page 35,

(155) Merck response
paragraph 99.
(156) Merck response

paragraph 100.

to the

statement of objections, page 35,

to the

statement of objections, page 35,

(157) OJ C 45, 19.2.2002, p. 45.

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information on the methylglucamine cartel, as required
under point (a) of Section C of the Leniency Notice.
Consequently none of
the
conditions as set out in Section C.

the undertakings meet

(280) The Commission

substantially contest
statement of objections.

not
accepts
the facts in its response to the

that Aventis

did

3.3.7.3. S i g n i f i c a n t r e d u c t i o n o f a f i n e

( ‘ S e c t i o n D ' )

(281) The Commission accordingly grants Aventis Pharma and
Rhône-Poulenc Biochimie a 40 % reduction of the fine
that would otherwise have been imposed had it not
cooperated with the Commission.

(274) Aventis argues that it meets and even exceeds all of the
from a significant

conditions necessary to benefit
reduction of the fine (158).

3.3.7.4. C o n c l u s i o n o n t h e a p p l i c a t i o n o f t h e

L e n i e n c y N o t i c e

(275) Concerning the level of cooperation offered, Aventis

(282)

makes the following statements.

(276)

(277)

‘Providing its fullest cooperation in response to the
Commission's Article 11 request
for information, the
Respondent undertook substantial efforts to gather all
relating to the methylglucamine
existing materials
business
an
to shed light on the
anti-competitive agreement with Merck' (159).

existence of

this

that

believes

Indeed as

‘The Respondent
information
materially contributed to establishing the existence of
the infringement.
the file clearly shows,
neither Merck nor RPB found any written documents
evidencing the agreement. Thus, the Commission has
relied solely upon acknowledgements by both Merck
and RPB that they participated in an agreement contrary
to Article 81(1) of the EC Treaty. Had RPB not identified
the
and conveyed information about
Commission would have been left with the words of
one company against another as its only evidence. It is
clear
relied on
disclosures by both companies in order to establish the
existence of the infringement' (160).

statement of objections

this agreement,

that

the

(278) Aventis also points out

it has not substantially
that
contested the facts in its response to the statement of
objections.

(279) The Commission accepts that the cooperation of Aventis
has been satisfactory throughout the procedure and that
the information provided by Aventis confirmed certain
aspects of
the infringement. The Commission does
however not agree that the information provided by
Aventis was essential to it proving the existence of the
cartel, even though the case would have been more
complicated had the information provided by Merck not
been approved by Aventis.

(158) Aventis

response to the statement of objections, page 37,

paragraph 94.

(159) Aventis

response to the statement of objections, page 36,

paragraph 91.

(160) Aventis response to the statement of objections, pp. 36—37,

paragraph 92.

In conclusion, with regard to the nature of
their
cooperation and in the light of the conditions as set out
in the Leniency Notice, the adressees of this Decision
should be granted the following reduction of
their
respective fines:

— to Rhône-Poulenc Biochimie SA/Aventis Pharma SA,

a reduction of 40 %

— to Merck KgaA a reduction of 100 %.

3.3.8. The final amounts of the fines imposed in the present

proceedings

(283)

the fines to be imposed, pursuant

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

— Rhône-Poulenc Biochimie SA/Aventis Pharma SA:

EUR 2,85 million

— Merck KgaA: EUR 0 million.

HAS ADOPTED THIS DECISION:

Article 1

Rhône-Poulenc Biochimie SA, Aventis Pharma SA and Merck
KgaA have infringed Article 81(1) of the Treaty and, from
1 January 1994 onwards, Article 53(1) of the EEA Agreement
by participating in a continuing agreement and/or concerted
practice in the methylglucamine sector.

The duration of the infringement was for all three addressees
22 November 1990 until 31 December 1999.

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Article 2

The undertakings named in Article 1 shall immediately bring
to an end the infringement referred to in Article 1 therein, in
so far as they have not already done so.

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

Article 3

The following fines are imposed on the undertakings named in
Article 1 in respect of the infringement referred to therein:

(a) Rhone Poulenc Biochimie SA and Aventis Pharma SA,
jointly and severally liable, a fine of EUR 2,85 million;

(b) Merck KgaA, a fine of EUR 0 million.

Article 4

that period,

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

Article 5

This Decision is addressed to:

(a) Rhône-Poulenc Biochimie SA
20, Avenue Raymond Aron
F-92165 Antony Cedex

(b) Aventis Pharma SA

20, Avenue Raymond Aron
F-92165 Antony Cedex

(c) Merck KgaA

Frankfurter Straße 250
D-64293 Darmstadt

The fines shall be paid, within three months of the date of
into Bank Account No
this Decision,
notification of
642-0029000-95 of the European Commission with

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

Banco Bilbao Vizcaya Argentaria (BBVA) SA
Avenue des Arts/Kunstlaan 43B
B-1040 Bruxelles/Brussel

(SWIFT CODE: BBVABEBB)

(IBAN-CODE BE 76 6420 0290 0095).

Done at Brussels, 27 November 2002.

For the Commission

Mario MONTI

Member of the Commission