2005/349/EC: Commission Decision of 10 December 2003 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-2/37.857 — Organic peroxides) (notified under document number C(2003) 4570 final and corrigendum C(2004) 4)
Date: 2003-12-10
Institutions: European Commission
Subjects: chemical industry, control of restrictive practices, fine, price agreement, unlawful agreement

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COMMISSION

COMMISSION DECISION

of 10 December 2003

relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement
(Case COMP/E-2/37.857 — Organic peroxides)

(notified under document number C(2003) 4570 final and corrigendum C(2004) 4)

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

(2005/349/EC)

On 10 December 2003, the Commission adopted a decision (C(2003) 4570 final) relating to a
proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement. On 7 January
2004, the Commission approved by written procedure E/2/2004 (C(2004) 4) a corrigendum to the
German and Spanish versions of Decision C(2003) 4570 final. In accordance with the provisions of
Article 21 of Regulation 17 (1), the Commission herewith publishes the names of the parties and the
main content of the decision, having regard to the legitimate interest of undertakings in the protection of
their business interests. A non-confidential version of the full text of the decision can be found in the
authentic languages of the case and in the Commission’s working languages at DG COMP’s website at
http://europa.eu.int/comm/competition/index_en.html

I. SUMMARY OF THE INFRINGEMENT

(2)

Addresses and nature of the infringement

(1)

This Decision is addressed to the following undertakings
and/or associations of undertakings:

— Akzo Nobel Chemicals International BV

— Akzo Nobel Polymer Chemicals BV

— Akzo Nobel NV

— Atofina SA

Beginning from 1971, the main producers of organic
peroxides at that time (Akzo Nobel Chemicals Interna-
tional BV and Akzo Nobel Polymer Chemicals BV,
Luperox GmbH (which became part of
the main
German subsidiary of Atofina SA) hereinafter Akzo and
Peroxid-Chemie GmbH & Co KG) entered into and parti-
cipated in a continuing agreement contrary to Article
81(1) of
the EEA
the Treaty and Article 53(1) of
Agreement covering at times all and at times most of
the Community and the EEA, by which they agreed on
market shares, fixed the prices of the product, agreed on
and implemented a mechanism for price increases,
allocated customers and set up a machinery to monitor
and enforce their agreements. Peroxidos Organicos S.A.
(1975 to 1999)
in a specific arrangement
within the overall agreement. AC Treuhand AG (1993
to 1999) was involved as well.

took part

— Degussa UK Holdings Limited

Duration of the infringement

(3)

Duration of the participation

— Peroxid-Chemie GmbH & Co KG

— Peroxidos Organicos SA

— AC Treuhand AG.

(a) Akzo Nobel Chemicals International BV, Akzo Nobel
Polymer Chemicals BV and Akzo Nobel N.V. from 1
January 1971 to 31 December 1999;

(1) OJ 13, 21.2.1962, p. 204/62. Regulation as last amended by Regu-

lation (EC) No 1/2003 (OJ L 1, 4.1.2003, p. 1).

(b) Atofina SA from 1 January 1971 to 31 December

1999;

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(c) Peroxid-Chemie GmbH & Co. KG from 1 January

1971 to 31 December 1999;

(d) Degussa UK Holdings Limited from 1 September

1992 to 31 December 1999;

(e) Peroxidos Organicos SA from 31 December 1975 to

31 December 1999;

(8)

(f) AC Treuhand from 28 December 1993 to 31

December 1999.

The market for Organic Peroxides

(4)

An organic peroxide is any organic molecule containing
a ‘peroxy’ or oxygen-oxygen bond (-O-O-). Organic
peroxides
(hereinafter OP) are highly explosive and
major accidents are not rare in the industry. They are
available as solids (usually fine powders),
liquids or
pastes. OP and mixtures containing OP are used as acce-
lerators, activators, catalysts, cross-linking agents, curing
initiators and promoters. OP can be
agents, hardeners,
three main ‘applications’
distinguished both by their
and by the seven ‘classes’.

(5)

OP serve a critically important role in the plastics and
rubber industries where they serve three main appli-
cations:

e.g.

rangements had a substantial overlap with the overall
agreement,
the
period
mechanisms of mutual control and compensation, the
parties, the products, the clients or the acting persons
concerned can be found in each of the subarrangements.

question,

under

the

The main agreement aimed at preserving market shares
and coordinating price increases and is based on a
written ‘contract’ from 1971. In order to achieve this,
objective, detailed sales data of
the participating
companies were closely monitored by an independent
body (AC Treuhand since 1993), clients were allocated
and, in case of deviation from the intended market share,
compensations were applied or clients were reallocated.
Regular meetings took place in order to fine-tune the
the agreement. The agreement contained
working of
subarrangements on specific products or
numerous
subar-
subproducts, or
concerning
rangements have,
in part, only lasted for a limited
period of time or have been integrated in other subar-
rangements. Perorsa was involved in a Spanish subar-
rangement.

regions. These

(9)

AC Treuhand was found to have violated Article 81 of
the Treaty and Article 53 of the EEA Agreement by
conflicts, proposing
organising meetings, mediating
market shares and hiding incriminating evidence. AC
Treuhand acted as
an association of undertakings
and/or as an undertaking.

(a) the polymerisation of thermoplastic resins (so-called

high polymer or HP applications)

(10) The cartel underwent frictions in 1992 and ended at the
end of 1999, after the parties' attempts to agree on
quotas failed. Some subarrangements ended earlier.

(b) the curing of unsaturated polyester thermoset resins

(so-called UP applications)

(c) cross-linking (so-called XL applications).

(6)

(7)

The Commission has found that the geographic scope of
this business is at least EEA-wide. In 1999, the last full
year of the infringement, the cartel covered more than
90 % of the EEA market for the product concerned, this
market having a total estimated value in that year of EUR
250 million.

Functioning of the cartel

A main agreement started in 1971, with initially three
and
Peroxid-Chemie
(Akzo,
participating members
Atofina (at that time Luperox)).
It consisted of subar-
rangements for high polymer and thermoset-OP, and
was also split up by regional criteria. Regional subar-
(until 1992), United
rangements
Kingdom (until 1992), Spain (since the end of 1975)
and the rest of Europe, following the main principles
the overall agreement. For Cross-linking
and rules of
OP,
in 1983,
subarrangement was made
another
covering as well most European countries. These subar-

concerned France

II. FINES

Basic amount

(11) The Commission considers

the

that

undertakings
concerned have committed a very serious infringement.
The nature of the infringement and its geographic scope
the infringement must qualify as very
are such that
serious,
the impact of
irrespective of whether or not
the infringement on the market can be measured.

Differential treatment

(12) Within the category of very serious infringements, the
scale of likely fines makes it possible to apply differential
treatment to undertakings in order to take account of the
the offenders to cause
effective economic capacity of
significant damage to competition, as well as to set the
fine at a level which ensures that
it has sufficient
deterrent effect. With a share of more than 40 % of
the total of these markets, Akzo is the largest producer
and should, therefore, be placed in the first category.
Atofina and Peroxid-Chemie, with shares of around 20
to 25 % of the market, should be placed in the second
category. Perorsa, with a market share under 5 % in
Europe, should be in the third category.

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(13) Degussa UK Holdings (formerly called Laporte plc)

is,
since 1 September 1992,
company of
Peroxid-Chemie and should be placed in the same
category as Peroxid-Chemie, as it is jointly responsible
with Peroxid-Chemie for the illicit activities of Peroxid-
Chemie.

the parent

Peroxid-Chemie was

(14) The division of the responsibility of Peroxid-Chemie and
Degussa UK Holdings with regard to the fine is as
follows.
the
agreement
from 1 January 1971 until 31 December
1999, and Degussa UK Holdings is jointly and severally
responsible for the time when it fully owned Peroxid-
Chemie,
from 1 September 1992 until 31 December
1999.

a member

of

(15) AC Treuhand is considered apart. The Commission
acknowledges that addressing a decision to an under-
taking and/or association of undertakings having a role
of this kind in a cartel is to a certain extent a novelty.
This has to be taken into account when deciding on the
level of fines. In view of the foregoing the Commission
considers
it appropriate to impose a fine on AC
Treuhand of EUR 1 000.

(16) To take into account the size and aggregate resources of
the undertakings and ensure that the fine has an adequate
the
deterrent effect,
the Commission considers
starting amount
should be adjusted for Akzo and
Atofina.

that

Duration

(17) The Commission has established that, Akzo, Atofina, and
Peroxid-Chemie infringed Article 81(1) of
the Treaty
from 1 January 1971 until 31 December 1999, Perorsa
from at least 31 December 1975 until 31 December
1999 and Degussa UK Holdings from 1 September
1992 until 31 December 1999, AC Treuhand acted as
an undertaking and/or association of undertakings from
28 December 1993 until 31 December 1999.

(18)

For the purpose of calculating the fine, the Commission
takes into account complete months and therefore fixes
as the duration of the infringement by these undertakings
a period of 29 years (Akzo, Atofina and Peroxid-Chemie),
a period of 6 years (AC Treuhand), a period of 7 years
and 4 months (Degussa UK Holdings) and a period of 24
years (Perorsa). For Peroxid-Chemie the period is split up
in two subperiods, when it was responsible alone (21
years 8 months) and when it was responsible together
with its parent company Degussa UK Holdings (7 years
and 4 months).

(19) The Commission concludes that the infringement was of
long duration (more than five years) for AC Treuhand,

Akzo, Atofina, Degussa UK Holdings, Peroxid-Chemie
and Perorsa. Accordingly increases of 245 % should be
applied to the basic amounts of the fine imposed on
Akzo and Atofina.
Increases of 207,5 % should be
applied to the basic amount of the fine imposed on
Peroxid-Chemie. Increases of 70 % should be applied to
the fine imposed on Peroxid-
the basic amounts of
Increases of 220 %
Chemie/Degussa UK Holdings.
should be applied to the basic amount of
the fine
imposed on Perorsa. These percentages are derived
from increase of 10 % per year for the last
twenty
years of
(1980 to 1999), and an
increase of 5 % per year for the part of the infringement
which took place 21 to 29 years ago (1971 to 1979).

the infringement

Aggravating circumstances

(20) Atofina has been fined previously for its involvement in
four cartels, and Peroxid-Chemie/Degussa UK Holdings
have been fined for their involvement
in one cartel.
Therefore repeat offence will be considered as aggravating
circumstance.

(21) The Commission accordingly considers that

the basic
amount of the fine to be imposed should be increased
by 50 % in the case of Atofina to reflect the fact that it
had already been an addressee of Commission decisions
in a considerable number of previous cartel cases, and by
50 % in the cases of Degussa UK Holdings and Peroxid-
they had been the
Chemie,
addressee of one previous Commission cartel decision,
either directly (Degussa UK Holdings) or through the
undertaking to which it belonged (Peroxid-Chemie).

to reflect

the fact

that

Attenuating circumstances

(22) Atofina strengthened the Commission’s arguments to

prove the 29 year duration of the cartel.

(23)

In line with a principle of fairness, it is proposed to apply
a specific attenuating circumstance ‘co-operation outside
the Leniency notice’ for Atofina. This attenuating circum-
stance will prevent that Atofina would pay a higher fine
after its co-operation than it would have paid without co-
operation.

(24)

In the light of the above, the Commission does consider
it appropriate to grant a reduction of the basic amount of
EUR 94,19 million for effective cooperation outside the
scope of the leniency notice for Atofina.

Application of the 10 % turnover limit

(25) The 10 % worldwide turnover limit mentioned in Article
15(2) of Regulation 17 applies to Perorsa and Peroxid-
Chemie.

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Application of the 1996 Leniency Notice

Ability to pay

Non-imposition or a very substantial reduction in its amount
(Section B: 75 to 100 % reduction)

(30) No company claimed inability to pay.

(26) Akzo is granted immunity from fines for having been the
first undertaking to report the cartel to the Commission.

1. The following fines are imposed:

Decision

Significant reduction of a fine (Section D: reduction from 10 to
50 %)

(27) Atofina is granted a 50 % reduction for its cooperation in
the Commission’s investigation. Among the companies
qualifying for a significant fine reduction, Atofina was
the first company to co-operate with the Commission
and provided the most useful contribution. Like the
other companies that cooperated with the Commission,
it also did not substantially contest the facts on which
the Commission based its allegations.

(28)

Peroxid-Chemie and Degussa UK Holdings are granted a
25 % reduction
the
their
Commission’s investigation. The evidence it provided
arrived later and its co-operation was more limited
than that of Akzo and Atofina.

co-operation

for

in

(29)

Perorsa, which was the last company to cooperate,
granted a 15 % reduction.

is

(a) Akzo Nobel Polymer Chemicals
BV, Akzo Nobel NV, Akzo
Nobel Chemicals
International
BV, jointly and severally liable

EUR 0

(b) Atofina SA

EUR 43,47 million

(c) Peroxid-Chemie GmbH & Co. KG

EUR 8,83 million

(d) Peroxd-Chemie GmbH & Co. KG
Holdings
severally

UK
and

and Degussa
Limited,
liable

jointly

EUR 16,73 million

(e) AC Treuhand AG

EUR 1 000

(f) Peroxidos Organicos SA

EUR 0,50 million,

2. The undertakings and/or associations of undertakings listed
shall immediately bring the infringements to an end, in so
far as they have not already done so. They shall refrain from
repeating any act or conduct as the infringement found in
this case and from any act or conduct having the same or
similar object or effect.