2005/480/EC: Commission Decision of 30 April 2004 concerning cases COMP/D2/32448 and 32450 Compagnie Maritime Belge SA (Follow-up after the Court of Justice judgment of 16 March 2000) (notified under document number C(2004) 1779)
Date: 2004-04-30
Institutions: European Commission
Subjects: control of restrictive practices, dominant position, fine, maritime conference, maritime transport, transport company

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Official Journal of the European Union

2.7.2005

COMMISSION

COMMISSION DECISION

of 30 April 2004

concerning cases COMP/D2/32448 and 32450 Compagnie Maritime Belge SA (Follow-up after the
Court of Justice judgment of 16 March 2000)

(notified under document number C(2004) 1779)

(Only the Dutch text is authentic)

(2005/480/EC)

I. INTRODUCTION

(1)

(2)

(3)

(4)

(5)

On 30 April 2004, the Commission adopted a decision relating to a proceeding under Article 82 of
the EC Treaty, imposing a fine of EUR 3 400 000 on the Antwerp shipping company Compagnie
Maritime Belge SA (hereinafter CMB). In accordance with the provisions of Article 30 of Council
Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on compe-
tition laid down in Articles 81 and 82 of the Treaty (1), the Commission herewith publishes the name
of
the decision, having regard to the legitimate interest
of undertakings in the protection of their business interests. A non-confidential version of the
the case and in the
full
Commission’s working languages on the website of the Directorate-General
for Competition at
http://europa.eu.int/comm/competition/index_en.html

the decision can be found in the authentic languages of

the party and the main content of

text of

II. PROCEDURE

The decision is a follow-up to the so-called Cewal-case in which the Commission imposed fines on
the members of a liner shipping conference called Associated Central West Africa Lines (hereinafter
Cewal) for violating Article 86 of the EC Treaty (presently Article 82 and referred to below as such).

In Commission Decision 93/82/EEC (2) (hereinafter the original decision) the Commission established,
inter alia, that Cewal and two other liner conferences, Cowac and Ukwal and the undertakings who
were members of those conferences had infringed Article 85(1) of the EC Treaty (presently Article
81(1) and referred to below as such). Moreover, by engaging in three different forms of abuse of
dominant position the undertakings who were members of Cewal had also infringed Article 82 of
the EC Treaty. The undertakings were ordered to bring the infringements to an end.

In the original decision the Commission imposed fines for infringement of Article 82 of the EC
Treaty on four of the member undertakings of Cewal. A fine of ECU 9,6 million was imposed on
CMB.

All four companies and CMB’s subsidiary CMBT submitted applications for annulment of the original
decision to the Court of First Instance (CFI). In its judgment of 8 October 1996 (3) (hereafter the CFI
judgment) the CFI dismissed the applications. However, it reduced the fines. CMB’s fine was reduced
to ECU 8 640 000.

(1) OJ L 1, 4.1.2003, p. 1. Regulation as amended by Regulation (EC) No 411/2004 (OJ L 68, 6.3.2004, p. 1).
(2) OJ L 34, 10.2.1993, p. 20.
(3) Joined cases T-24/93, T-25/93, T-26/93 and T-28/93, CMB, CMBT and Dafra-Lines v Commission, [1996] ECR II-1201.

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(6)

CMB, CMBT and a second company that had been fined, Dafra-Lines A/S, appealed the CFI judgment.
In its judgment of 16 March 2000 (1) (hereafter the ECJ judgment) the Court of Justice (ECJ) rejected
all appeal grounds submitted in relation to the substance of the original decision:

— but annulled the Articles of the original decision imposing the fines, and

— dismissed the remainder of the appeal.

(7)

The reason for the annulment was that the Commission had failed to indicate clearly in the statement
of objections:

— that it was contemplating imposing fines on each individual member of Cewal, and

— that the amounts of the fines would be fixed in accordance with an assessment of the partici-

pation of each company in the conduct constituting the alleged infringement.

On 16 April 2003 the Commission sent CMB a new statement of objections informing them that it
intended to adopt a new decision imposing fines for the infringements established in the original
decision. In the statement of objections the Commission made CMB explicitly aware that it intended
to impose fines on it individually, and that the amount of the fine imposed would be fixed in
accordance with an assessment of the participation of each company in the conduct constituting the
infringement.

III. THE DECISION

The present decision is based on the substantive findings of the original decision. It contains the
explicit statement that it is not meant to supplement or amend the facts presented or the infrin-
gements established in the original decision. With a view thereto, the decision only contains a
descriptive summary of the elements of the original decision that form the basis of the infringements
established in it and a description of how these elements were assessed by the CFI and ECJ.

(8)

(9)

(10)

In the original decision the Commission found that the members of Cewal had a joint dominant
position on the shipping routes between Zairean ports and northern European ports. They had
abused that dominant position in order to eliminate competition from two other competing
shipping companies by:

— insisting on the implementation of an exclusivity agreement between Cewal and a Zairean quasi-

governmental agency (Ogefrem);

— systematically using ‘fighting ships’; and

— imposing 100 % loyalty agreements and using blacklists to enable reprisals against users of

independent vessels.

(11)

In the legal assessment it is reflected that the Commission considers the elements of the original
decision as to the existence, character and extent of the infringements either as:

— res judicata, or

— as having acquired a definitive nature since the time-limit for bringing an action against them has

expired long ago.

(1) Joined cases C-395/96 P and C-396/96 P, CMB, CMBT and Dafra-Lines v Commission, [2000] ECR I-1365.

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(12) As regards the legal assessment of the situation regarding the fines the position is taken that CMB has
been enabled to put forward a proper defence with respect to the fine to be imposed on it and the
elements substantiating the fine.

(13) As to the statute of limitations it is established that neither the five-year nor the ten-year limitation
periods based on Regulation (EEC) No 2988/74 of the Council (1) have expired, so that it is within
the Commission’s competence to impose a new fine.

(14)

The Commission considers it necessary to impose a fine pursuant to Article 19(2) of Council
Regulation (EEC) No 4056/86 (2) on CMB for the infringements of Article 82 of the EC Treaty
established in the original Decision.

IV. FINE

(15)

The present decision is based on the considerations regarding the imposition, level and allocation of
the fines in the original decision, and the CFI’s considerations with regard thereto.

(16)

The fine imposed is also based on the 1998 Guidelines. As to the amounts for gravity, account was
taken of the nature of the infringements, their actual
impact on the market and the relevant
geographic market.

(17)

The relevant geographic market is the market in liner services between northern European ports and
Zaire.

(18)

The infringements of Article 82 of the EC Treaty committed by CMB and the other members of
Cewal are of a serious nature, in as much as they enabled Cewal to maintain a virtual monopoly on
its routes to and from Zaire. Moreover, they were implemented in order to drive out the only
competitor on the market.

(19) Account was also taken of the fact that the President and secretary of Cewal were staff members of

CMB and Cewal had its office in the same premises as CMB.

(20)

In its judgment the CFI held that for reasons of deterrence, the Commission was lawfully entitled to
take account of the fact that vessels belonging to the CMB group carried, at the time when the
original decision was adopted, almost all the cargoes of the conference. However, since at the time of
the adoption of the present decision no such specific circumstance applies this circumstance was not
taken into account when calculating the fine in the present decision.

(21) On the basis of

the foregoing considerations

the Commission defined a basic amount of

EUR 1 million for each infringement.

(22)

These basic amounts were increased with 20 %, 15 % and 20 % respectively in view of the duration
of the infringements.

(23)

In view of the lapse of time since the conduct was terminated, as well as the time passed following
the ECJ
judgment until the issue of the statement of objections in April 2003, an amount of
EUR 50 000 was subtracted from all three amounts.

(24)

This lead the Commission to impose a fine of EUR 3,4 million.

(1) OJ L 319, 29.11.1974, p. 1. Regulation as amended by Regulation (EC) No 1/2003.
(2) OJ L 378, 31.12.1986, p. 4. Regulation as last amended by Regulation (EC) No 1/2003.