2007/686/EC: Commission Decision of 30 November 2005 relating to a proceeding under Article 81 of the Treaty establishing the European Community against Armando Álvarez SA, Bernay Film Plastique, Bischof + Klein France SAS, Bischof + Klein GmbH & Co. KG, Bonar Technical Fabrics NV, British Polythene Industries PLC, Cofira-Sac SA, Combipac BV, Fardem Packaging BV, FLSmidth & Co. A/S, FLS Plast A/S, Groupe Gascogne, JM Gesellschaft für industrielle Beteiligungen mbH & Co. KGaA, Kendrion NV, Koninklijke Verpakkingsindustrie Stempher CV, Low & Bonar PLC, Nordenia International AG, Nordfolien GmbH, Plásticos Españoles SA, RKW AG Rheinische Kunststoffwerke, Sachsa Verpackung GmbH, Stempher BV, Trioplast Industrier AB, Trioplast Wittenheim SA, UPM-Kymmene Oyj (Case COMP/38354 — Industrial bags) (notified under document number C(2005) 4634)
Date: 2005-10-30
Institutions: European Commission
Subjects: economic concentration, fine, industrial product, merger control, packaging product, plastics, price agreement

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(Acts adopted under the EC Treaty/Euratom Treaty whose publication is not obligatory)

II

DECISIONS

COMMISSION

COMMISSION DECISION

of 30 November 2005

relating to a proceeding under Article 81 of the Treaty establishing the European Community
against Armando Álvarez SA, Bernay Film Plastique, Bischof + Klein France SAS, Bischof + Klein
GmbH & Co. KG, Bonar Technical Fabrics NV, British Polythene Industries PLC, Cofira-Sac SA,
Combipac BV, Fardem Packaging BV, FLSmidth & Co. A/S, FLS Plast A/S, Groupe Gascogne, JM
Gesellschaft
industrielle Beteiligungen mbH & Co. KGaA, Kendrion NV, Koninklijke
Verpakkingsindustrie Stempher CV, Low & Bonar PLC, Nordenia International AG, Nordfolien
GmbH, Plásticos Españoles SA, RKW AG Rheinische Kunststoffwerke, Sachsa Verpackung GmbH,
Stempher BV, Trioplast Industrier AB, Trioplast Wittenheim SA, UPM-Kymmene Oyj
(Case COMP/38354 — Industrial bags)

für

(notified under document number C(2005) 4634)

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

(2007/686/EC)
On 30 November 2005 the Commission adopted a decision relating to a proceeding under Article 81
of the EC Treaty. In accordance with the provisions of Article 30 of Council Regulation (EC) No
1/2003 (1), the Commission herewith publishes the names of the parties and the main content of the
decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the
protection of their business secrets.

1. SUMMARY OF THE CASE

1.1. Addressees

— Nordenia International AG and Nordfolien GmbH;

(1)

The decision is addressed to the following undertakings
for having infringed Article 81(1) of the EC Treaty:

— Trioplast Wittenheim SA and Trioplast Industrier AB;

— Combipac BV and British Polythene Industries plc;

— FLS Plast A/S and FLSmidth & Co. A/S;

— Bischof + Klein GmbH & Co., KG;

— Bischof + Klein France SAS;

— Cofira-Sac SA;

— RKW AG Rheinische Kunststoffwerke

JM
industrielle Beteiligungen mbH &

and

Gesellschaft
Co. KGaA;

für

— Plásticos

Españoles

SA (hereinafter Aspla)

and

Armando Álvarez SA;

— Fardem Packaging BV and Kendrion NV;

— Sachsa Verpackung GmbH and Groupe Gascogne;

(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).

— UPM-Kymmene Oyj;

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— Bernay Film Plastique, formerly Conditionnement et

Industrie SA;

— Bonar Technical Fabrics NV and Low & Bonar PLC;

— Stempher BV and Koninklijke Verpakkingsindustrie

Stempher CV.

(2)

(3)

The addressees referred to above participated in a single
and continuous infringement of Article 81 of the EC
Treaty, covering the Benelux, France, Germany and
Spain (1), by which they agreed to fix prices of industrial
bags, to set common models for price calculation, to
allocate
allocate market
customers
concerted
to
and
submissions to tenders and to exchange individualised
information. The duration of the infringement proper
to each addressee retained in the decision is ranging
from three to 20 years.

shares
deals,

proceed

quotas,

and

to

to

1.2. The industrial bags sector

bags’,

Plastic industrial bags (2), commonly referred to as
‘industrial
basic
used
commodities, and more generally raw materials,
ferti-
lisers, polymers, building materials, agricultural and horti-
cultural products and animal feeding stuffs.

packaging

are

for

(4)

Plastic industrial bags can be divided into four categories:

— open mouth bags,

— valve bags,

— FFS (form, fill and seal) bags,

— Block bags.

1.3. The supply

(5)

the 1990s a trend towards
Since the beginning of
concentration can be observed among manufacturers of
plastic films and bags, and several acquisitions have taken
place in recent years. Nevertheless, alongside European
players based in several EU Member States, smaller
companies that have opted for a local development
strategy are also present on this market.

1.4. The demand

(6)

Until the 1950s, industry used textile and paper bags for
carrying commodities. With the development of bulk
maritime transport, the textile bags industry went into
decline. The introduction of the polyethylene bag in the

1950s triggered growing demand for this type of bag,
which among other
industry's needs for
things met
waterproof packaging.

(7)

(8)

(9)

Since the mid-1970s, FFS bags have gradually been
replacing the other
industrial bags. Their
types of
success is due notably to the automated filling process,
which allows large volumes to be handled, and the
limited need for labour.

1.5. Scope of the infringement

The investigation showed that
the cartel covered the
Benelux, the French, German and Spanish markets. The
market concerned was estimated at around EUR 220
million in 1996 and between EUR 250 and 300
represented
million in 2001. The
around 75 % of the market in 1996.

cartel members

1.6. Origin and procedure

the company BPI

In November 2001,
informed the
Commission of the existence of a cartel in the industrial
bags sector and expressed the wish to cooperate with the
Commission under the 1996 Notice on immunity from
fines and reduction of
fines in cartel cases (Leniency
Notice) (3). BPI provided the Commission with evidence
that allowed the carrying out of
inspections in June
2002.

1.7. Functioning of the cartel

(10)

The cartel operated basically at two levels:

— the global

level under the umbrella of an official
professional organization called ‘Valve-Plast’. The
meetings were held at least since 1982 and three
or
sub-group
dedicated to block bags was set up in 1994,

a year. A functional

times

four

— the

sub-group level

regional
subgroups (France, Germany, Benelux, Belgium and
Netherlands).

composed of

five

(11)

anticompetitive practices

The
particular:

identified covered in

— fixation of prices and setting of common models for

calculating prices,

(1) Stempher’s participation to the infringement was limited to the

Netherlands and occasionally Belgium.

(2) There are also industrial bags made of paper, but these do not fall

within the scope of this investigation.

— allocation of quotas,

(3) OJ C 207, 18.7.1996, p. 4.

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— allocation of clients and deals,

— discussions during the meetings over lists of major
clients, designation of account managers in charge of
coordinating the offers to those clients,

category with a market share of 8,9 %. Aspla (7,2 %) and
Fardem (6,6 %) are placed in the third category. UPM-
Kymmene (4,8 %), RKW (4,6 %) and Stempher (4,3 %)
are placed in the fourth category. Bonar Technical
Fabrics (3,1 %), Cofira (2,9 %) and Trioplast Wittenheim
(2,8 %) are placed in the fifth category. Sachsa (2,3 %),
Bischof + Klein France (1,9 %) and Bernay Film Plastique
(1,6 %) are placed in the sixth category.

— multilateral and bilateral discussions over specific

customers, submissions of concerted bids,

(17)

— regular exchange of sensitive information related to

market shares.

2. FINES

2.1. Basic Amount

(12)

The basic amount of the fine is determined according to
the gravity and duration of the infringement.

2.1.1. Gravity

(13)

Regarding the nature of
and its
geographic scope, the infringement must be qualified as
very serious.

infringement

the

Stempher

(Koninklijke

For
Verpakkingsindustrie
Stempher CV and Stempher BV), there is no evidence
in the file of its knowledge of the global scheme of the
cartel. Its participation has been limited to one of the
subgroups dealing only with the Dutch market (and from
time to time with Belgium). Therefore a reduction of
25 % is applied to the basic amount of
the fine
imposed on Stempher.

2.1.3. Sufficient deterrence

(18) Within the category of very serious infringements, the
scale of the fines that can be imposed also makes it
possible to set the fines at a level which ensures that
they have sufficient deterrent effect, having regard to
the size and the economic power of each undertaking.
In this respect, the Commission notes that in 2004, the
most recent business year preceding this decision, the
turnover of the UPM-Kymmene group was EUR 9 820
to
million. Accordingly,
apply a multiplication factor of
fine
imposed on UPM-Kymmene.

is considered appropriate,

two to the

it

2.1.2. Differential treatment

2.1.4. Duration

treatment

(14) Within the category of very serious infringements, the
scale of applicable fines makes it possible to apply diffe-
rential
to take
to undertakings
account of
the effective economic capacity to cause
significant damage to competition. This is appropriate
where, as in this case, there are considerable disparities
in terms of importance between the undertakings parti-
cipating in the infringement.

in order

(19)

(15)

The undertakings have been divided into six categories
according to their relative importance in the relevant
in 1996. 1996 was used a reference year
market
because it was the closest complete year of infringement
in which all the undertakings implicated in the cartel
were still present on the relevant market.

(16) With market shares estimated at 12,5 % and 11,5 %,
Wavin/BPI and Bischof + Klein are placed in the first
category. Nordenia/Nordfolien are placed in the second

are

increases

percentage

applied
Individualised
accordingly to the duration of the infringement proper
to each company. Bischof + Klein Co., KG, Cofira-Sac SA,
Fardem Packaging, Nordenia International AG, Trioplast
Wittenheim, RKW and JM Gesellschaft für industrielle
in the infringement during a
Beteiligungen took part
period of more than 20 years leading to a percentage
increase of
the starting amount of 200 %. Combipac
took part in the infringement during a period of 19
years and 10 months leading to a percentage increase
the starting amount of 195 %. Bischof + Klein
of
in the infringement during a
France SAS took part
period of 18 years and 11 months
leading to a
percentage increase of the starting amount of 185 %.
Sachsa took part in the infringement during a period
of 14 years and four months leading to a percentage
increase of the starting amount of 140 %. Aspla and
Armando Álvarez SA took part
in the infringement
during a period of 11 years and three months leading
to a percentage increase of the starting amount of 110 %.
Groupe Gascogne, FLS Plast and FLSmidth & Co took
part in the infringement during a period of eight years
(and five months for Groupe Gascogne)
leading to a
the starting amount of 80 %.
percentage increase of
in the infringement during
Kendrion NV took part

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the

starting

a period of seven years leading to a percentage increase
of the starting amount of 70 %. Nordfolien took part in
the infringement during a period of nine years and seven
months leading to a percentage increase of the starting
amount of 95 %. Bonar Technical Fabrics and Low &
Bonar took part in the infringement during a period of
six years and two months leading to a percentage
increase of
amount of 60 %. UPM-
Kymmene and British Polythene Industries plc took
part in the infringement during a period of four years
and six months leading to a percentage increase of the
starting amount of 45 %. K.V. Stempher CV and
Stempher BV took part in the infringement during a
period of four years leading to a percentage increase of
the starting amount of 40 %. Finally, Trioplast Industrier
AB and Bernay Film Plastique took part in the infrin-
gement during a period of more than three years
leading to a percentage increase of the starting amount
of 30 %.

2.2. Aggravating circumstances

2.2.1. Repeated infringements

(20) At the time the infringement took place, UPM-Kymmene
had already been subject to previous Commission prohi-
bition decisions
in Decision
cartel
94/601/CE in the Cartonboard case (IV/C/33.833). This
aggravating circumstance justifies an increase of 50 % in
the basic amount of the fine to be imposed on UPM-
Kymmene.

activities

for

2.4. Application of the 10 % turnover limit

the

to exceed 10 % of

(23) Article 15(2) of Regulation No 17 and Article 23(2) of
Regulation (EC) No 1/2003 provide that the fine imposed
on each undertaking is not
its
turnover. As regards the 10 % ceiling, if ‘several addressees
“undertaking”,
entity
constitute
the
responsible for the infringement penalised,
the date
when the decision is adopted, (…) the ceiling can be calculated
on the basis of the overall turnover of that undertaking, that is
to say of all its constituent parts taken together. By contrast, if
that economic unit has subsequently broken up, each addressee
of the decision is entitled to have the ceiling in question applied
individually to it’ (1).

economic
(…) at

that

is

(24)

The 10 % ceiling is applied when appropriate, namely to
Stempher, Bernay Film Plastique, Nordenia International
AG, Nordefolien GmbH, Cofira-Sac, Fardem, Combipac
BV, Bischof + Klein GmbH & Co. KG and Bischof +
Klein France.

2.5. Application of the 1996 Leniency Notice

(25) Given the fact BPI applied for leniency before the entry
into force of the 2002 leniency notice, the provisions of
the 1996 notice apply to this case.

2.2.2. Obstruction to the investigation

(21) During the inspection, one manager of Bischof + Klein
destroyed a document
selected by the Commission
officials. It is considered that irrespective of its effects,
such behaviour necessarily disrupted the Commission’s
investigation and hindered its inspectors in the exercise
of their investigative powers. This deliberate obstruction
constitutes an aggravating circumstance, as provided for
in the Guidelines on Fines, that has to be penalised by an
increase of 10 % on the basic amount of the fine.

(26)

(27)

2.3. Attenuating circumstances

(22)

Several undertakings claimed for
the application of
attenuating circumstances indicating several factors such
as their passive role, the absence of an effective imple-
mentation of the practices, the early termination of the
compliance
infringement,
the
programs and crisis situation of
the industrial bags
sector. These claims are all rejected as being unfounded.

implementation

of

2.5.1. Section B (reduction from 75 % to 100 %)

In November 2001, BPI was the first undertaking to
provide the Commission with decisive elements of
proof of the infringement that allowed the Commission
inspections. BPI maintained its
to conduct successful
cooperation throughout
investigation and thus
the
fulfilled its obligations imposed by the leniency notice.

Three parties stated in their reply to the Statement of
Objections that BPI had participated after November
2001 to a collusive arrangement concerning a tender.
After a close investigation of these allegations and since
the
decisive material
no
produced,
is
Commission considers
should be retained
under section B of the notice. Therefore, the Commission
considers that BPI (including its subsidiary Combipac BV)
is entitled to benefit
from a 100 % reduction in the
the fine that would otherwise have been
amount of
imposed.

evidence
that BPI

(1) See judgment of Court of First Instance in Cases T-71/03, T-74/03,
T-87/03 and T-91/03, Tokai Carbon and Co., Ltd and others v
Commission, cited above, point 390.

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(28)

(29)

(30)

(31)

2.5.2. Section D (reduction from 10 % to 50 %)

Trioplast-Wittenheim applied for
leniency soon after
having received the request for information which the
Commission addressed to it pursuant to Article 11 of
Regulation No 17. The explanations it gave concerning
the functioning of the cartel and on some documents
helped to confirm the existence of the infringement. In
view of its cooperation, the Commission considers that
Trioplast Wittenheim and Trioplast Industrier are entitled
to benefit from a 30 % reduction in the amount of the
fine that would otherwise have been imposed,
in
accordance with the Section D of the 1996 Leniency
Notice.

their cooperation,

Bischof + Klein and Cofira provided some information or
documents that exceeded the required replies to the
Article 11 letter and did not contest the facts. In view
of
the Commission considers that
Bischof + Klein GmbH & Co. KG, Bischof and Klein
France SAS and Cofira-Sac SA are entitled to benefit
from a 25 % reduction in the amount of the fine that
would otherwise have been imposed.

that Nordfolien (1) and
The Commisssion considers
Bonar Technical Fabrics (2) are entitled to benefit from
a 10 % reduction in the amount of the fine that would
otherwise have been imposed for not contesting the facts.

The Commission considers that the information provided
voluntarily by Sachsa did not contribute substantially to
the establishment of the infringement and does therefore
not qualify for a reduction of the fine.

(32)

The claims of FLS-Plast and FLSmidth for a reduction of
the fine for not contesting the facts are rejected.

3. DECISION

(33)

The following undertakings have infringed Article 81 of
the Treaty by participating, during the periods indicated,
in a complex of agreements and concerted practices in
the plastic industrial bags sector in Belgium, Germany,
Spain,
the Netherlands,
consisting in the fixing of prices and the establishment
the sharing of
of common price calculation models,
markets
the
the
assignment
submission of concerted bids in response to certain invi-

allocation of
deals

sales quotas,
orders,
and

and the
of

Luxembourg

customers,

France,

and

(1) Since Nordfolien and Nordenia International AG have belonged to
two different undertakings since 2003, the cooperation on which
Nordfolien seeks to rely should be regarded as imputable solely to
that company, and there are therefore no grounds for allowing
Nordenia International AG to benefit from the reduction in the
fine granted to Nordfolien.

(2) As Low & Bonar plc forms a common undertaking with Bonar
Technical Fabrics, it is also entitled to benefit from this reduction.

tations to tender and the exchange of
information:

individualised

(a) Combipac BV,

from 6 January 1982 until 9
November 2001, and British Polythene Industries
plc, from 25 April 1997 until 9 November 2001;

(b) Bischof + Klein GmbH & Co. KG, from 6 January
1982 until 26 June 2002, and Bischof + Klein
France SAS,
from 6 January 1982 until 18
December 2000;

(c) RKW AG Rheinische Kunststoffwerke

and JM
für industrielle Beteiligungen mbH &
Gesellschaft
Co. KGaA, from 6 January 1982 until 26 June 2002;

(d) Fardem Packaging BV, from 6 January 1982 until 26
June 2002, and Kendrion N.V., from 8 June 1995
until 26 June 2002;

(e) Nordenia International AG, from 6 January 1982

until 26 June 2002;

(f) Nordfolien GmbH, from 24 November 1992 until

26 June 2002;

(g) Trioplast Wittenheim SA, from 6 January 1982 until
26 June 2002, and Trioplast Industrier AB, from 21
January 1999 until 26 June 2002;

(h) FLS Plast A/S and FLSmidth & Co A/S from 31

December 1990 until 19 January 1999;

(i) Cofira-Sac SA, from 24 March 1982 until 26 June

2002;

(j)

Plásticos Españoles SA and Armando Álvarez SA,
from 8 March 1991 until 26 June 2002;

(k) Sachsa Verpackung GmbH, from 9 February 1988
until 26 June 2002, and Groupe Gascogne, from 1
January 1994 until 26 June 2002;

(l) UPM-Kymmene Oyj, from 18 July 1994 until 31

January 1999;

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(m) Bernay Film Plastique, from 31 August 1995 until 9

November 1998;

(n) Bonar Technical Fabrics NV and Low & Bonar PLC,
from 13 September 1991 until 28 November 1997.

(f) Trioplast Wittenheim SA: EUR 17,85 million. Of
this amount, FLSmidth & Co. A/S and FLS Plast
A/S shall be jointly and severally liable for the
sum of EUR 15,30 million and Trioplast Industrier
AB shall be jointly and severally liable for the sum
of EUR 7,73 million;

(34)

Stempher BV and Koninklijke Verpakkingsindustrie
Stempher CV have infringed Article 81 of the Treaty
from 25 October 1993 until 31
by participating,
October 1997,
and
in a
concerted practices in the plastic industrial bags sector
in the Netherlands
in Belgium,
consisting in the fixing of prices and the establishment
of common price calculation models,
the sharing of
markets, the assignment of customers, deals and orders
and the exchange of individualised information.

and, occasionally,

complex of

agreements

(35)

For these infringements the following fines are imposed:

(a) Combipac BV: EUR 0. Of

shall be
Industries plc
Polythene
severally liable for the sum of EUR 0;

this amount, British
and

jointly

(b) Bischof + Klein GmbH & Co. KG: EUR 29,15
million and Bischof + Klein France SAS: EUR 3,96
million;

(c) RKW AG Rheinische Kunststoffwerke

and JM
für industrielle Beteiligungen mbH &

Gesellschaft
Co. KGaA, jointly and severally: EUR 39 million;

(d) Kendrion NV: EUR 34 million. Of

this amount,
Fardem Packaging BV shall be jointly and severally
liable for the sum of EUR 2,20 million;

(g) Cofira-Sac SA: EUR 350 000;

(h) Plásticos Españoles SA and Armando Álvarez SA,

jointly and severally: EUR 42 million;

(i)

Sachsa Verpackung GmbH: EUR 13,20 million. Of
this amount, Groupe Gascogne shall be jointly and
severally liable for the sum of EUR 9,90 million;

(j) UPM-Kymmene Oyj: EUR 56,55 million;

(k) Bernay Film Plastique: EUR 940 000;

(l) Bonar Technical Fabrics NV and Low & Bonar PLC,

jointly and severally: EUR 12,24 million;

(m) Stempher BV and Koninklijke Verpakkingsindustrie
jointly and severally: EUR 2,37

Stempher CV,
million.

(36)

The undertakings listed above shall immediately bring to
an end the infringements referred to in recitals 33 and
34 above, in so far as they have not already done so.
They shall refrain from repeating any act or conduct
described in recitals 33 and 34 and from any act or
conduct having the same or similar object or effect.

(e) Nordenia International AG: EUR 39,10 million. Of
this amount, Nordfolien GmbH shall be jointly and
severally liable for the sum of EUR 7,18 million;

(37) A non-confidential version of the full text of the Decision
will be published in the authentic languages of the case
at DG Competition web-site
at http://ec.europa.eu/
comm/competition/index_en.html