2003/355/EC: Commission Decision of 9 April 2003 amending Decision 2003/207/EC relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E-3/36.700 — Industrial and medical gases) (notified under document number C(2003) 1180)
Date: 2003-04-09
Institutions: European Commission
Subjects: Netherlands, fine, gas, infringement procedure (EU), price agreement

17.5.2003

EN

Official Journal of the European Union

L 123/49

COMMISSION

COMMISSION DECISION

of 9 April 2003

amending Decision 2003/207/EC relating to a proceeding under Article 81 of the EC Treaty

(Case COMP/E-3/36.700 — Industrial and medical gases)

(notified under document number C(2003) 1180)

(Only the English and Dutch texts are authentic)

(2003/355/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

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

Having regard to Commission Decision 2003/207/EG of 24
July 2002 relating to a proceeding pursuant to Article 81 of
the EC Treaty (Case COMP/E-3/36.700 — Industrial medical
gases) (3), (hereinafter referred to as the Decision),

Whereas:

(1)

In the Decision the Commission found that at meetings
of March and October 1994 anticompetitive discussions
on ‘price scales’ and ‘minimum prices’ for cylinder gases
for small customers took place with a view to an agree-
ment between certain undertakings, including Westfalen
Gassen Nederland BV (hereinafter Westfalen) (4).

(2)

Therefore Westfalen was found to have taken part in the
following agreements/concerted practices (5):

(a) fixing price increases

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

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

(1) OJ 13, 21.2.1962, p. 204/62.
(2) OJ L 148, 15.6.1999, p. 5.
(3) OJ L 84, 1.4.2003, p. 1.
(4) Recital 205 of the Decision.
(5) Recital 393 of the Decision.

(c) fixing minimum prices

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

(3)

As a result
the Commission found that Westfalen
infringed Article 81(1) of the Treaty from March 1994
until December 1995 (6), and that Westfalen took part in
the following agreements/concerted practices (7):

(a) fixing price increases

from October 1994 until

December 1995;

(b) fixing moratorium periods from October 1994 until

January 1995;

(c) fixing minimum prices

from March 1994 until

December 1995.

(4)

The Commission concluded that this warranted, based
on a starting amount of EUR 0,45 million to be
increased by 15 % for duration, a basic amount of fine
of EUR 0,51 million for Westfalen (8). Taking into
account the attenuating circumstances applicable to that
company, the Commission concluded that an amount of
fine of EUR 0,43 million was warranted prior to any
application of the Commission notice on the non-impo-
sition or reduction of fines in cartel cases (the Leniency
Notice) (9). As the Leniency Notice was not applicable to
Westfalen,
fine of
EUR 0,43 million to that company (10).

the Commission imposed a total

(5) Westfalen filed an appeal (11), at

the Court of First
Instance on 4 October 2002, in which it contested the
Decision on certain grounds, among which it claimed
that it did not participate in the meeting of March 1994.

(6) Recital 433 of the Decision.
(7) Recital 436 of the Decision.
(8) Recital 438 of the Decision.
(9) Recitals 449 and 450 of the Decision.
(10) Recital 460 of the Decision.
(11) Case T-303/02 Westfalen v Commission (OJ C 305, 7.12.2002,

p. 25).

L 123/50

EN

Official Journal of the European Union

17.5.2003

HAS ADOPTED THIS DECISION:

Article 1

Decision 2003/207/EC is hereby amended as follows:

1.

2.

in Article 1, the words ‘Westfalen Gassen Nederland BV
from March 1994 until December 1995’ are replaced by the
words ‘Westfalen Gassen Nederland BV from October 1994
until December 1995’;

in Article 3, the words ‘Westfalen Gassen Nederland BV
EUR 0,43 million’ are replaced by the words ‘Westfalen
Gassen Nederland BV EUR 0,41 million’.

Article 2

This Decision is addressed to:

AGA AB
S-181 81 Lidingö

Air Liquide BV
De Witbogt 1
5652 AG Eindhoven
Nederland

Air Products Nederland BV
Klaprozenweg 101
Noordpoort
1033 NN Amsterdam
Nederland

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

Messer Nederland BV
Middenweg 17
4782 PM Moerdijk
Nederland

NV Hoek Loos
Havenstraat 1
Postbus 78
3100 AB Schiedam
Nederland

Westfalen Gassen Nederland BV
Rigastraat 20
7418 EW Deventer
Nederland

Done at Brussels, 9 April 2003.

For the Commission

Mario MONTI

Member of the Commission

(6)

Further to this appeal, the Commission realised that in
its assessment it made a factual mistake as it did not take
into account that Westfalen was indeed not represented
in the abovementioned meeting of March 1994 but only
at the meeting of October 1994 (1).

(7)

It must therefore be stated that Westfalen took part in
the following agreements/concerted practices:

(a) fixing price increases

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

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

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

(8)

As a result it must be stated that Westfalen infringed
Article 81(1) of the Treaty from October 1994 until
December 1995 and that Westfalen took part in the
following agreements/concerted practices:

(a) fixing price increases

from October 1994 until

December 1995;

(b) fixing moratorium periods from October 1994 until

January 1995;

(c) fixing minimum prices from October 1994 until

December 1995.

As a consequence, with the same starting amount and
an increase for duration now reduced to 10 %,
the
Commission should have set the basic amount of the
fine for Westfalen at EUR 0,49 million. The fine calcu-
lated after taking into account the attenuating circum-
stances applicable to that company and prior to any
application of
the Leniency Notice should therefore
amount to EUR 0,41 million and the total fine applic-
to EUR 0,41
able to that company should amount
million.

This amendment has no consequences for the other
parties involved in the Decision or for the rest of the
Decision concerning Westfalen.

The difference between the amount of the fine imposed
to Westfalen in the Decision of EUR 0,43, which has
already been paid by that company, and the amended
amount of the fine for Westfalen as reduced by the
present Decision of EUR 0,41, which amounts
to
EUR 0,02 million, will be reimbursed to that company,

(9)

(10)

(11)

(1) See table 5 in Recital 106 of the Decision.