2006/903/EC: Commission Decision of 3 May 2006 relating to a proceeding under Article 81 of the Treaty establishing the European Community and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, EKA Chemicals AB, Degussa AG, Edison SpA, FMC Corporation, FMC Foret S.A., Kemira OYJ, L'Air Liquide SA, Chemoxal SA, Snia SpA, Caffaro Srl, Solvay SA/NV, Solvay Solexis SpA, Total SA, Elf Aquitaine SA and Arkema SA. (Case COMP/F/C.38.620 — Hydrogen Peroxide and perborate) (notified under document number C(2006) 1766)   (Text with EEA relevance)
Date: 2006-05-03
Institutions: European Commission
Subjects: chemical salt, economic concentration, fine, infringement procedure (EU), merger control, oxide

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COMMISSION DECISION

of 3 May 2006

relating to a proceeding under Article 81 of the Treaty establishing the European Community and
Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, EKA
Chemicals AB, Degussa AG, Edison SpA, FMC Corporation, FMC Foret S.A., Kemira OYJ, L'Air
Liquide SA, Chemoxal SA, Snia SpA, Caffaro Srl, Solvay SA/NV, Solvay Solexis SpA, Total SA, Elf
Aquitaine SA and Arkema SA.

(Case COMP/F/C.38.620 — Hydrogen Peroxide and perborate)

(notified under document number C(2006) 1766)

(only the English, French and Italian versions are authentic)

(Text with EEA relevance)

(2006/903/EC)

1.

SUMMARY OF THE INFRINGEMENT

(2)

1.1.

Addressees

(1)

The decision is addressed to the following undertakings:

— Akzo Nobel NV (‘Akzo’)

— Akzo Nobel Chemicals Holding AB (‘ANCH’)

The addressees of the Decision participated in a single and
continuous infringement of Article 81 of the Treaty and
Article 53 of the EEA Agreement regarding hydrogen
peroxide (‘HP’) and its downstream product sodium
perborate (‘PBS’), covering the whole EEA territory (‘the
infringement’). The period of infringement retained in the
decision is from 31 January 1994 to 31 December 2000.
The infringement consisted mainly of competitors exchan-
ging commercially important and confidential market- and/
or company relevant information, limiting and/or control-
ling production as well as potential and actual capacities,
allocating market shares and customers, and fixing and
monitoring (target) prices.

— EKA Chemicals AB (‘EKA’)

— Degussa AG (‘Degussa’)

— Edison SpA (‘Edison’)

— FMC Corporation (‘FMC’)

— FMC Foret S.A. (‘Foret’)

— Kemira OYJ (‘Kemira’)

— L'Air Liquide SA (‘Air Liquide’)

— Chemoxal SA (‘Chemoxal’)

— Snia SpA (‘Snia’)

— Caffaro Srl (‘Caffaro’)

— Solvay SA/NV (‘Solvay’)

— Solvay Solexis SpA (‘Solexis’)

— Total SA (‘Total’)

— Elf Aquitaine SA (‘Elf Aquitaine’)

— Arkema SA (‘Atofina’).

1.2.

The hydrogen peroxide and perborate sector

(3) HP is a strong oxidising agent which has several industrial
applications. It is a clear, colourless liquid which is available
commercially as an aqueous solution in concentrations
mainly ranging from 30 % to 70 %. As a final product HP is
in the pulp and paper
used as a bleaching agent
manufacturing industries, for the bleaching of textiles, for
disinfection and for other environmental applications such
as sewage treatment. HP is also used as a raw material for
the production of other downstream peroxigen products,
such as persalts (which include PBS) and peracetic acid.

(4)

PBS is mainly used, as well as sodium percarbonate (‘PCS’),
as an active substance in synthetic detergents and washing
powders. PBS and PCS have been both investigated in the
current proceedings, however following the replies to the
Statement of Objections and arguments presented at the
Oral Hearing, it cannot be established that the infringing
behaviour extended to PCS as well. The decision therefore
only covers infringing behaviour as regards HP and PBS, not
as regards PCS, despite to the Statement of Objections
which also regarded PCS.

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1.3.

The supply

1.7.

Procedure

(5) HP: in the EEA there were six main suppliers throughout
the period of the infringement: the leading company was
Solvay with an approximate market share of [20-30] %,
followed by EKA. The other players were Atofina, Kemira,
Degussa and Foret. Air Liquide and Ausimont sold HP until
June 1998 and May 2002 respectively. Finally there were a
small number of resellers importing HP from Eastern
Europe and from outside Europe. There have been no new
market entrants in recent years.

(6)

PBS: the undertakings active in the EEA during the whole
of, or part of, the period of the infringement were: Degussa,
Foret, Solvay, Caffaro (which however
suspended its
production in 1999), Atofina (which ceased production in
1999), Air Liquide (stopped in 1994) and Ausimont.

1.4.

The demand

(7) During the period of the infringement, in the EEA the main
purchasers of HP were relatively small in number (six to
eight) and mainly from the pulp and paper segment, which
negotiated EEA-wide contracts at EEA-wide prices.

(8) Major customers (such as Scandinavian and German pulp
and paper manufacturers) negotiated contracts with a single
price for multi-site supplies throughout the EEA. Transport
costs were thus borne by the supplier, who may therefore
have had an interest in obtaining HP from a source situated
geographically close to the plants of the customers.

(9)

In the persalts domain during the period of the infringe-
ment, a very small number of
large multinational
companies existed on the demand side: 75-80 % of EEA
purchases of persalts was concentrated in the hands of a
small number of customers. They each had centralised
European purchasing operations that negotiated purchases
twice a year. They usually purchased persalts from more
than one supplier, seeking to maintain a certain degree of
competitive pressure.

1.5.

Geographic scope

(10) The infringement covered the whole of the EEA where
demand of the products under investigation existed.

1.6.

Functioning of the cartel

(11) The period of

infringement retained in the decision is

31 January 1994 until 31 December 2000.

(12) The collusive practices can be categorised as follows:

it
concerned exchange of market related information (includ-
ing prices and sales volumes), market sharing, limitation/
control of production and sources of supply as well as price
fixing for HP and PBS. The collusion regarding the two
products is considered to be related and forms part of a
single overall scheme and therefore constitutes a single
infringement, even though the behaviour as regards HP and
PBS separately would equally fall under the prohibition of
Article 81(1) of the Treaty.

(13)

In December 2002 Degussa informed the Commission of
the existence of a cartel in the HP and PBS sector and
expressed the wish to cooperate with the Commission
under the 2002 Notice on immunity from fines and
reduction of fines in cartel cases (‘Leniency Notice’) (1).
Degussa provided the Commission with evidence that
allowed carrying out inspections in March 2003 at the
premises of three companies (the investigation against other
companies was first conducted by requests for informa-
tion).

(14) After the inspections five other companies submitted an
application for reduction of fines. Three of them were
granted a reduction of fines, in accordance with point 23
and 26 of the Leniency Notice, namely EKA, Atofina and
Solvay. The applications of Kemira and Solexis were
rejected.

2.

FINES

2.1.

Basic Amount

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

gravity and duration of the infringement.

2.1.1. Gravity

(16)

In assessing the gravity of the infringement, the Commis-
sion takes account of its nature, its actual impact on the
market, where this can be measured, and the size of the
relevant geographic market.

(17) Taking into account

the nature of

the infringement
committed, the fact that it must have had an impact and
the fact that it covered the whole of the EEA, where the HP
and PBS market taken together had a total value of around
EUR 470 million in 1999,
the
infringement, the Commission considers that the under-
takings to which this Decision is addressed have committed
a very serious infringement of Article 81 of the Treaty and
Article 53 of the EEA Agreement.

full year of

the last

2.1.2. Differential treatment

(18) 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
effective economic capacity of the offenders, respectively, to
cause significant damage to competition. This is appro-

(1) OJ C 45, 19.2.2002, p. 3.

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there are considerable
priate where, as in this case,
disparities between the respective market shares of the
undertakings participating in the infringement.

(19) By assessing the turnover in the respective products for
each undertaking and setting them off against the total
turnover for HP and PBS for the purposes of determining
the individual weight, the Commission has taken account of
the fact that certain undertakings were only active on the
market for one of the two products concerned. In doing so
the Commission has taken account of the real impact of the
unlawful conduct of each undertaking on competition.
Because of the different varieties in which HP and PBS can
be sold, sales based on the total value amount appear a
more reliable indicator of operators’ capacities. These
figures show that Solvay was the largest market operator
in the EEA, with a share of the combined sales of around
[20-30] %. It is therefore placed in a first category. Degussa,
with a market share of [10-20] %, is placed in a second
category. Foret, EKA, Atofina, Kemira and Ausimont with
shares of
[5-15] % respectively, are placed in a third
category. Finally, Caffaro, with a market share in PBS of
around [5-10] % in its last full year, 1998, and a share of
sales with regard to the combined HP and PBS market of [1-
5] % is placed in a fourth category.

(20)

In the case of Caffaro, the Commission takes into account,
despite the several links existing between the two products,
that it has not been established that Caffaro was aware or
could necessarily have had knowledge of the overall scheme
of the anti-competitive arrangements. Consequently, given
the case, a reduction of 25 % is
the circumstances of
applied to the starting amount of the fine calculated for
Caffaro.

2.1.3. Sufficient deterrence

multiply the fine for Total by a factor of 3, that is based on
the size of the parent companies, Elf Aquitaine and Total,
which each have a turnover well above EUR 100 billion.
Akzo and Degussa, with a turnover each of around 10 % of
that of Total are still very large undertakings, with a
turnover well exceeding EUR 10,000 million. It is therefore
considered it appropriate to multiply the fine for these
undertakings by a factor of 1,75. In view of the fact that
Solvay had a turnover of EUR 8,560 million,
the
Commission considers it appropriate to multiply the fine
for Solvay by a factor of 1,5. In view of the fact that Edison
had a turnover of EUR 6,650 million, the Commission
considers it appropriate to multiply the fine for
this
undertaking by a factor of 1,25. Given that Ausimont was
transferred to a different undertaking, in the circumstances
of the case, the multiplier applies to the fine to be attributed
to Edison only.

2.1.4. Increase for duration

the starting amount

(22) Degussa, Solvay and Kemira participated in the infringe-
ment from 31 January 1994 to 31 December 2000, a
period of six years and eleven months. These undertakings
committed an infringement of long duration. The starting
amounts of the fines should consequently be increased by
10 % for each full year of infringement. They should be
further increased by 5 % for any remaining period of 6
months or more but less than a year. This leads to a
percentage increase of
for each
undertaking of 65 %. EKA participated in the infringement
from 31 January 1994 until 31 December 1999, a period of
five years and eleven months, while Atofina and Ausimont
participated in the infringement from 12 May 1995 until
31 December 2000, a period of
five years and seven
months. This leads to a percentage increase of the starting
amount for each undertaking of 55 % (2). Foret participated
in the infringement from 29 May 1997 until 13 December
1999, a period of two years and seven months. This leads to
a percentage increase of the starting amount of 25 %.
Caffaro participated in the infringement from 29 May 1997
until 31 December 1998, a period of one year and seven
months. This leads to a percentage increase of the starting
amount of 15 %.

(21) Within the category of very serious infringements, the scale
of likely fines also makes it possible to set the fines at a
level which ensures that they have sufficient deterrent effect,
taking into account the size of each undertaking. In this
respect, the Commission notes that in 2005, the most
recent financial year preceding this Decision, the world-
wide turnover of Total was EUR 143 billion, that of Elf
Aquitaine EUR 120 billion, that of Akzo EUR 13,000 mil-
lion, that of Degussa EUR 11,750 million, that of Solvay
EUR 8,560 million and that of Edison EUR 6,650 million.
Accordingly, the Commission considers it appropriate to

2.2.

Aggravating circumstances

(23) At the time the infringement took place, Atofina, Degussa,
Edison and Solvay had already been addressees of previous

(2) As EKA's evidence enabled the Commission to trace back the cartel
to 31 January 1994, in accordance with point 23 of the Leniency
Notice, these elements will not be taken into account when setting
the fine, resulting in an increase for duration of 20 % instead of 55 %
for this undertaking.

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Commission decisions concerning cartel activities (3). The
fact that the undertakings have repeated the same type of
conduct either in the same industry or in different sectors
from that in which they had previously incurred penalties,
shows that
these
undertakings to change their conduct. This constitutes for
the Commission an aggravating circumstance. This aggra-
vating circumstance justifies an increase of 50 % in the
basic amount of the fine to be imposed on the undertakings
mentioned above (4).

the first penalties did not prompt

2.3.

Attenuating circumstances

(24)

In the case of Caffaro, it is appropriate to reduce its fine due
to its passive and minor role in the infringement, as
compared to the other participants in the cartel, by 50 %.

2.4.

Application of the 10 % turnover limit

its turnover. As regards the 10 % ceiling,

(25) Article 23(2) of Regulation (EC) No 1/2003 provides that
the fine imposed on each undertaking is not to exceed 10 %
of
‘several
addressees constitute the “undertaking”, that is the economic entity
responsible for the infringement penalised, […] at 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
that
economic unit has subsequently broken up, each addressee of the
decision is entitled to have the ceiling in question applied
individually to it’ (5).

its constituent parts taken together. By contrast,

if

if

(26) The world-wide annual turnover achieved by Solexis in
2005 was EUR 256 190 307. The fine imposed on Solexis
must therefore not exceed EUR 25,619 million.

2.5.

Application of the 2002 Leniency Notice

(27) Degussa, EKA, Atofina, Solvay, Solexis

and Kemira
submitted applications under the Leniency Notice. They
co-operated with the Commission at different stages of the
investigation with a view to receiving the favourable
treatment provided for in the Leniency Notice.

(3) Such decisions include: As regards Degussa: Commission decision of
23 November 1984 relating to a proceeding under Article 85 of the
EEC Treaty (IV/30.907 — Peroxygen products, OJ L 35 of 7.2.1985,
p. 1), Commission decision of 23 April 1986 relating to a
the EEC Treaty (IV/31.149 —
proceeding under Article 85 of
Polypropylene, OJ L 230 of 18.8.1986, p. 1). As regards Edison:
Commission decision of 27 July 1994 relating to a proceeding under
Art. 85 of the EEC Treaty (IV/31865 — PVC II, OJ L 239 of
14.9.1994, p. 14). As regards Solvay: Commission decision of
23 November 1984 quoted (Peroxygen products), Commission
decision of 23 April 1986 quoted (Polypropylene), Commission
decision of 27 July 1994 quoted (PVC II). As regards Atofina/Arkema:
Commission decision of 23 November 1984 quoted (Peroxygen
products), Commission decision of 27 July 1994 quoted (PVC II).
(4) The increase for recidivism applies only to Atofina and not to its
parent companies, Elf Aquitaine and Total, as the latter were not in
control of Atofina at the time of the previous infringement. The
multiplying factor applied to Total, namely 3 is not included in the
calculation. Instead a multiplying factor of 1.25, which would have
been applied had Atofina been the sole addressee of the Decision
(given its worldwide turnover of 5.7 billion EUR in 2005), is used for
the purposes of calculating recidivism. A separate fine is accordingly
addressed to Atofina alone for this amount.

(5) See the judgment of the Court of First Instance of 15 June 2005 in
joined cases T-71/03, T-74/03, T-87/03 and T-91/03 Tokai Carbon Co.
Ltd. and Others v Commission, not yet reported (see OJ C 205 of
20.8.2005, p. 18), paragraph 390.

2.5.1. Point 8 (a) — Immunity

throughout

the Commission's

(28) Degussa was the first European producer of HP and persalts
to inform the Commission of the existence of a cartel in the
HP market as well as in the HP-linked PBS market. Degussa
has co-operated fully, on a continuous basis and expedi-
administrative
tiously
procedure and provided the Commission with all evidence
available to it relating to the suspected infringement, giving
details of meetings between competitors as concerns both
products and enabling the Commission to prove the
existence of a cartel for both products. Degussa ended its
involvement in the suspected infringement no later than the
time at which it submitted evidence under point 8 (a) of the
Leniency Notice and did not take steps to coerce other
undertakings to participate in the infringement. Hence,
Degussa qualifies for a full immunity from the fine that
would otherwise have been imposed on it.

2.5.2. Point 23 (b), first indent (reduction of 30-50 %)

(29) EKA was

the

second undertaking to approach the
Commission under the Leniency Notice, on 29 March
2003, and the first undertaking to meet the requirements of
point 21 thereof, as it provided the Commission with
evidence which represents significant added value with
to the evidence already in the Commission's
respect
possession at the time of its submission.

(30) EKA terminated its involvement in the infringement no
later than the time at which it submitted the evidence and
its involvement has remained terminated. The Commission
therefore will apply a reduction of fines in the band of 30-
50 %. The Commission granted EKA a 40 % reduction of
the fine.

the period of

(31) EKA's evidence enabled the Commission to trace the
existence of the cartel back to 31 January 1994. EKA's
the infringement before
evidence for
14 October 1997 related to facts previously unknown to
the Commission which had a direct bearing on the duration
of the suspected cartel. In accordance with point 23 of the
Leniency Notice,
take these
elements into account for the purposes of setting the
amount of the fine to be imposed on EKA

the Commission did not

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2.5.3. Point 23 (b), second indent (reduction of 20-30 %)

(32) Atofina, (now Arkema), was the second undertaking to
meet the requirements of point 21 of the Leniency Notice,
as it provided the Commission with evidence which
represents significant added value with respect
to the
evidence already in the Commission's possession at the
time of its submission and, to the Commission's knowl-
edge, Atofina terminated its involvement in the infringe-
ment no later than the time at which it submitted the
evidence. It qualifies, therefore, under the second indent of
point 23 (b) of the Leniency Notice, for a reduction of 20-
30 % of the fine. In the assessment of the level of reduction
within the band of 20-30 %, the Commission took into
account the time at which the evidence of significant added
value was submitted and the extent to which it represents
such value. The Commission granted Atofina a 30 %
the fine that would otherwise have been
reduction of
imposed on it.

2.5.4. Point 23 (b), third indent (reduction of up to 20 %)

(33) Solvay was the third undertaking to meet the requirements
of point 21 of the Leniency Notice. On 4 April 2003, also
soon after its premises had been inspected under Article 14
of Regulation No 17, on 25 March 2003, Solvay submitted
an application under the Leniency Notice. The submission
on 4 April 2003 met the requirements of point 21 of the
Leniency Notice, as Solvay provided the Commission with
evidence representing significant added value with respect
to the evidence already in the Commission's possession. To
the Commission's knowledge, Solvay
terminated its
involvement in the infringement no later than the time at
which it submitted the evidence.

(34) Solvay submits that

it contacted the Commission by
telephone on the morning of 3 April 2003 to inform it
that Solvay wished to make an application under the
Leniency Notice. The application by Atofina, made on
3 April 2003 at 15:50hrs enclosed thirteen documents
which, according to Solvay, were illegible and/or unin-
telligible without a transcript or other form of explanation,
so that the Commission was unable to make use of any of
these documents until a full explanation was provided, on
26 May 2003,
leniency
application was made.

in any case after Solvay's

(35) Solvay submits that a decisive factor

in determining
whether an application for leniency qualifies for a reduction
under the Leniency Notice is the objective quality of the
information submitted in terms of the extent to which it is
useful
its
to the Commission. Solvay submits
application for leniency was properly made on the morning
of 3 April 2003 and provided significant added value in
relation to both HP and PBS. It therefore qualifies for the
maximum reduction (50 %) of any fine imposed in relation
to the two products.

that

(36) The Commission considers

that EKA's and Atofina's
submissions represented significant added value in accord-
ance with point 21 of the Leniency Notice prior to the first
submission by Solvay, which only occurred on 4 April
2003. Therefore the Commission rejects Solvay's argument.

(37) Solvay was granted a 10 % reduction of the fine that would

otherwise have been imposed on it.

2.5.5. Other applications under the Leniency Notice

(38) Solvay Solexis and Kemira also filed applications under
section B of the Leniency Notice but no reduction was
granted, due to lack of significant added value in their
applications.

3.

DECISION

(39) The following undertakings have infringed Article 81(1) of
the EEA Agreement by
the Treaty and Article 53 of
participating, for the periods indicated,
in a single and
continuous infringement regarding hydrogen peroxide and
sodium perborate, covering the whole EEA territory, which
consisted mainly of exchanges between competitors of
information on prices and sales volumes, agreements on
prices, agreements on reduction of production capacity in
the EEA and monitoring of the anti-competitive arrange-
ments:

(a) Akzo Nobel NV,

from 25 February 1994 until

31 December 1999;

(b) Akzo Nobel Chemicals Holding AB, from 31 January

1994 until 31 December 1999;

(c)

EKA Chemicals AB,
31 December 1999;

from 31 January 1994 until

(d) Degussa AG, from 31 January 1994 until 31 December

2000;

(e)

(f)

(g)

Edison SpA, from 12 May 1995 until 31 December
2000;

FMC Corporation, from 29 May 1997 until 13 Decem-
ber 1999;

FMC Foret S.A., from 29 May 1997 until 13 December
1999;

(h) Kemira OYJ, from 31 January 1994 until 31 December

2000;

(i)

(j)

L'Air Liquide SA, from 12 May 1995 until 31 Decem-
ber 1997;

Chemoxal SA, from 12 May 1995 until 31 December
1997;

(k)

Snia SpA, from 29 May 1997 until 31 December
1998;

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(l)

Caffaro Srl, from 29 May 1997 until 31 December
1998;

(m) Solvay SA/NV, from 31 January 1994 until 31 Decem-

ber 2000;

(c)

(d)

Edison SpA: EUR 58,125 million, of which EUR
25,619 million jointly and severally with Solvay
Solexis SpA;

FMC Corporation and FMC Foret S.A.,
severally: EUR 25 million;

jointly and

(n)

Solvay Solexis SpA,
31 December 2000;

from 12 May 1995 until

(e) Kemira OYJ: EUR 33 million;

(o) Total SA, from 30 April 2000 until 31 December

2000;

(p)

Elf Aquitaine SA, from 12 May 1995 until 31 Decem-
ber 2000;

(q) Arkema SA, from 12 May 1995 until 31 December

2000.

(40) For the infringements referred to in previous recital, the

following fines were imposed:

(a) Akzo Nobel NV, Akzo Nobel Chemicals Holding AB
jointly and severally: EUR

and EKA Chemicals AB,
25,2 million;

(b) Degussa AG: EUR 0;

(f)

(g)

L'Air Liquide SA and Chemoxal SA: EUR 0;

Snia SpA and Caffaro Srl, jointly and severally: EUR
1,078 million;

(h)

Solvay SA/NV: EUR 167,062 million;

(i) Arkema SA: EUR 78,663 million, of which EUR
42 million jointly and severally with Total SA and
EUR 65,1 million jointly and severally with Elf
Aquitaine SA.

(41) The undertakings listed above were ordered to bring to an
end immediately the infringements referred to in that
Article, in so far as they have not already done so and to
refrain from repeating any act or conduct described in
recital and from any act or conduct having the same or
similar object or effect.