2007/534/EC: Commission Decision of 13 September 2006 relating to a proceeding under Article 81 of the Treaty establishing the European Community (Case No COMP/F/38.456 — Bitumen (NL)) (notified under document number C(2006) 4090)
Date: 2006-09-13
Institutions: European Commission
Subjects: Netherlands, bituminous materials, fine, fixing of prices, infringement procedure (EU), merger control, restrictive trade practice, road building

L 196/40

EN

Official Journal of the European Union

28.7.2007

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

II

DECISIONS

COMMISSION

COMMISSION DECISION

of 13 September 2006

relating to a proceeding under Article 81 of the Treaty establishing the European Community
(Case No COMP/F/38.456 — Bitumen (NL))

(notified under document number C(2006) 4090)

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

(2007/534/EC)

(5)

(6)

(1)

(2)

(3)

(4)

1. SUMMARY OF THE INFRINGEMENT

The addressees of the Decision participated in a single
and continuous infringement of Article 81 of the Treaty
involving the
establishing the European Community,
fixing of prices concerning road pavement bitumen in
the Netherlands.

1.1. The road pavement bitumen sector

in the production of

fuel.
Bitumen is a by-product
Normally,
is produced during the distillation of
it
specific heavy crude oils. Different crude oils and
refinery configurations produce different bitumen types,
which can be further modified by the addition of
polymers in order to enhance performance. Bitumen is
mainly used in the production of asphalt, where it serves
as an adhesive binding the other materials together. The
remainder of bitumen production goes into various
industrial applications.

The product that is the subject of this Decision is all
bitumen used for road construction and similar appli-
cations.
It is also referred to as penetration bitumen,
paving-grade bitumen or pen-grade bitumen. It will be
referred to as road pavement bitumen.

the cartel covered the
The investigation showed that
territory of
the Netherlands. The size estimated is at
around EUR 62 million in 2001, the last full year of
the infringement. A peculiar feature of the arrangements
is that the collusion occurred not only among sellers, as
is usually the case, but among sellers and buyers

together. Eight out of nine suppliers of road pavement
bitumen and the six (now five) largest road construction
companies, purchasers of the product, participated in the
cartel.

The addressees referred to below participated in a single
and continuous infringement of Article 81 of the EC
the
Treaty, covering the territory of
main features of which were
and
purchasers jointly agreed on prices and rebates for the
product concerned.

the Netherlands,
that

suppliers

1.2. Addressees and duration of the infringement

The undertakings, with their legal entities, which have
them are
participated in the infringement
held liable as parent companies) are the following, for
the periods indicated. Please note that for certain under-
takings more than one legal entity is the addressee of the
Decision:

(some of

Suppliers:

(a) BP: BP plc. from 1 April 1994 to 15 April 2002, BP
Nederland BV from 1 April 1994 to 1 January 2000
and BP Refining & Petrochemicals GmbH from 31
December 1999 to 15 April 2002;

(b) Esha: Esha Holding BV, Smid & Hollander BV and
Esha Port Services Amsterdam BV from 1 April
1994 to 15 April 2002;

28.7.2007

EN

Official Journal of the European Union

L 196/41

(c) Klöckner: Klöckner Bitumen BV from 1 April 1994
to 15 April 2002 and Sideron Industrial Devel-
opment from 1 January 2000 to 15 April 2002;

between the suppliers, between the main purchasers, as
well as between these suppliers and purchasers.

(d) Kuwait Petroleum: Kuwait Petroleum Corporation,
Kuwait Petroleum International Ltd. and Kuwait
Petroleum (Nederland) BV from 1 April 1994 to
15 April 2002;

(e) Nynäs: AB Nynäs Petroleum and Nynäs Belgium AB

from 1 April 1994 to 15 April 2002;

(f) Shell: Shell Petroleum NV, The Shell Transport and
Trading Company Ltd and Shell Nederland Verkoop-
maatschappij BV from 1 April 1994 to 15 April
2002;

(g) Total: Total Nederland NV from 1 April 1994 until
15 April 2002 and Total SA from 1 November
1999 to 15 April 2002;

(h) Wintershall: Wintershall AG from 1 April 1994 until

31 December 1999.

(8)

(9)

The evidence of this cartel covers the period between 1
April 1994 and 15 April 2002 and relates essentially to
the practice of regularly fixing collectively the gross price
for sales and purchases of road pavement bitumen, a
uniform rebate on the gross price for participating
road builders and a smaller maximum rebate on the
gross price for other road builders.

the entire system of
The Commission considers that
preparatory and joint meetings, with the
ensuing
agreements between the group of bitumen suppliers
and the group of road builders on gross prices and
rebates for road pavement bitumen in the Netherlands
forms part of a single overall scheme and therefore
constitutes a single infringement of Article 81 of the
Treaty.

2. FINES

2.1. Basic Amount

Purchasers:

(10)

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

(i) Ballast Nedam: Ballast Nedam NV and Ballast Nedam
Infra BV from 21 June 1996 to 15 April 2002;

Gravity

(j)

BAM: BAM NBM Wegenbouw BV from 1 April
1994 to 15 April 2002 and Koninklijke BAM
Groep NV from 1 November 2000 to 15 April
2002;

(11)

the
In assessing the gravity of
Commission takes account of
its actual
impact on the market, where this can be measured,
and the size of the relevant geographic market.

the
its nature,

infringement,

(k) Dura Vermeer: Vermeer Infrastructuur BV from 1
April 1994 to 15 April 2002, Dura Vermeer
Groep NV from 13 November 1998 until 15
April 2002 and Dura Vermeer Infra BV from 1
July 2000 to 15 April 2002.

(12) Regarding the nature of the infringement, the fact that it
must have had an impact and the fact that it covered a
substantial part of the common market, the Commission
considers that the undertakings to which this Decision is
addressed have committed a very serious infringement of
Article 81 of the Treaty.

(l) HBG: HBG Civiel BV from 1 April 1994 to 15 April

2002;

Differential treatment

(m) Heijmans: Heijmans NV and Heijmans Infrastructuur

BV from 1 April 1994 to 15 April 2002;

(n) KWS: Koninklijke Volker Wessels Stevin NV and
Koninklijke Wegenbouw Stevin BV from 1 April
1994 to 15 April 2002;

(13) 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
appropriate where, as in this case, there are considerable
disparities between the respective market shares of the
undertakings participating in the infringement.

1.3. Functioning of the cartel

(7)

The collusive practices can be categorised as price fixing
practices for road pavement bitumen in the Netherlands

(14)

The undertakings have been divided into six categories
according to their relative importance in the relevant
market in 2001, the last full year of the infringement.

L 196/42

EN

Official Journal of the European Union

28.7.2007

(15)

(16)

Sufficient deterrence

The Commission notes that in this proceeding Shell, BP,
Total and Kuwait Petroleum had worldwide turnovers in
financial year 2005,
financial year
the most
preceding this Decision, of respectively EUR 246, 203,
143 and 37 billion. All other undertakings had
worldwide turnovers of less than EUR 10 billion.

recent

the case, no multiplier

The Commission considers that, given the circumstances
of
is necessary to ensure a
sufficient deterrent effect of the fines for these under-
takings with worldwide turnovers of less than EUR 10
billion. The Commission considers only multiplying the
fine for Shell, BP, Total and Kuwait Petroleum with a
factor that has been adapted to the circumstances of
the case.

special responsibility for their role in instigating and
leading the cartel. They were the driving forces in the
operation of the cartel. This role justifies an increase of
50 % in the basic amount of the fine to be imposed on
Shell and KWS.

2.3. Application of the 10 % turnover limit

(21) Article 23(2) of Regulation (EC) No 1/2003 (2) provides
that the fine imposed on each undertaking is not to
exceed 10 % of its turnover. This threshold is applied
to the fines calculated for Esha (Esha Holding BV, Smid
& Hollander BV and Esha Port Services Amsterdam BV)
and Klöckner Bitumen BV.

Duration

Immunity

2.4. Application of the 2002 Leniency Notice

(17)

Individualised multiplying factors are applied accordingly
to the duration of
the infringement proper to each
company ranging from 1,5 to 8 years (see recital 6
above).

(22)

2.2. Aggravating and attenuating circumstances

Aggravating circumstances

(18) At

the time the infringement

took place, Shell had
already been subject to previous Commission prohibition
decisions
recidivism
constitutes an aggravating circumstance justifying an
increase of 50 % in the basic amount of the fine to be
imposed on Shell.

activities (1).

cartel

This

for

BP was the first undertaking to inform the Commission
of the existence of a bitumen cartel in the Netherlands
immunity
and the Commission granted BP conditional
from fines in accordance with point 15 of the Notice. BP
has co-operated fully, on a continuous basis and expedi-
tiously throughout
administrative
procedure. BP ended its involvement in the suspected
time at which it
infringement no later
submitted evidence under the Leniency Notice and did
not take steps to coerce other undertakings to participate
in the infringement. Hence, BP qualifies
for a full
immunity from fines.

the Commission’s

than the

Point 23(b), first indent (reduction of 30 to 50 %)

(19) During the inspections, KWS refused to submit to the
investigation, prompting the inspectors to invoke the
assistance of the national competition authority and the
police. The Commission considers that this obstruction
constitutes an aggravating circumstance that justifies an
increase of 10 % in the basic amount of the fine to be
imposed on KWS.

(20)

Shell, within the group of bitumen suppliers, and KWS,
the bitumen purchasers, bear a
within the group of

(1) Commission Decision 86/398/EEC of 23 April 1986 relating to a
proceeding under Article 85 of the EEC Treaty (IV/31.149 — Poly-
propylene, OJ L 230, 18.8.1986, p. 1) and Commission Decision
94/599/EC of 27 July 1994 relating to a proceeding under Article
85 of the EEC Treaty (IV/31865 — PVC II, OJ L 239, 14.9.1994,
p. 14).

(23) Kuwait Petroleum was the next undertaking to approach
the Commission under the Leniency Notice and was the
first undertaking to meet the requirements of point 21
thereof. The evidence provided by Kuwait Petroleum
the Commission’s
strengthened by its very nature
ability to prove the facts in question, and therefore repre-
sented added value with respect to the evidence in the
Commission’s possession at that time. This added value
was significant because it corroborated the existing infor-
mation and, together with the information already in the
Commission’s possession, assisted the Commission in
proving the
taken into
the
account
bitumen consultation meetings with the purchasers and
Kuwait Petroleum was the first to give direct evidence on
this central element of
In
the Leniency Notice,
accordance with point 23 of
Kuwait Petroleum therefore qualifies for a reduction of
the fine between 30 % and 50 %.

that BP was not a regular attendant of

the cartel’s

infringement.

It must be

functioning.

(2) OJ L 1, 4.1.2003, p. 1. Regulation as last amended by Regulation

(EC) No 1419/2006 (OJ L 269, 28.9.2006, p. 1).

28.7.2007

EN

Official Journal of the European Union

L 196/43

(24)

For the exact reduction of the fine to be imposed on
Kuwait Petroleum,
it must be taken into account that
Kuwait Petroleum’s leniency application and the further
evidence provided thereafter strengthened by its level of
the Commission’s ability to prove the facts in
detail
question. However,
it must also be taken into account
that the application was made more than 11 months
after the Commission had conducted inspections and
only after
the parties a
request for information asking for detailed factual infor-
mation about
the Commission
considers it serious that certain important statements
Kuwait Petroleum had made in respect of the alleged
participation in the cartel of ExxonMobil were later refor-
mulated and could not be used in evidence against this
undertaking. The Commission concludes that Kuwait
Petroleum is entitled to a 30 % reduction of the fine
that would otherwise have been imposed.

the Commission had sent

the events. Moreover,

Other applications for leniency

(25)

Shell also filed an application under section B of the
Leniency Notice but no reward is proposed, due to
lack of significant added value.

(26) Nynäs and Total also claim that they have provided the
Commission with self-incriminating information on a
voluntary basis. But the Commission considers that the
information provided does not constitute significant
added value on the basis of which the Commission
should grant a reduction of penalty.

(27) Wintershall claims that it ought to be covered by the
immunity application of BP. But Wintershall still exists
as a separate undertaking from BP and it was BP, not
Wintershall, which decided to apply for immunity with
the Commission.

3. DECISION

(28)

The following undertakings infringed Article 81 of the
Treaty by regularly fixing collectively,
for the periods
for sales and purchases of road pavement
indicated,
bitumen in the Netherlands the gross price, a uniform
rebate on the gross price for participating road builders
and a smaller maximum rebate on the gross price for
other road builders:

BAM Groep NV from 1 November 2000 to
15 April 2002;

(c) BP: BP plc from 1 April 1994 to 15 April 2002, BP
Nederland BV from 1 April 1994 to 1 January 2000
and BP Refining & Petrochemicals GmbH from 31
December 1999 to 15 April 2002;

(d) Dura Vermeer: Vermeer Infrastructuur BV from 1
April 1994 to 15 April 2002, Dura Vermeer
Groep NV from 13 November 1998 to 15 April
2002 and Dura Vermeer Infra BV from 30 June
2000 to 15 April 2002;

(e) Esha: Esha Holding BV, Smid & Hollander BV and
Esha Port Services Amsterdam BV from 1 April
1994 to 15 April 2002;

(f) HBG: HBG Civiel BV from 1 April 1994 to 15 April

2002;

(g) Heijmans: Heijmans NV and Heijmans Infrastructuur

BV from 1 April 1994 to 15 April 2002;

(h) Klöckner: Klöckner Bitumen BV from 1 April 1994
to 15 April 2002 and Sideron Industrial Devel-
opment BV from 1 January 2000 to 15 April 2002;

(i) Kuwait Petroleum: Kuwait Petroleum Corporation,
Kuwait Petroleum International Ltd and Kuwait
Petroleum (Nederland) BV from 1 April 1994 to
15 April 2002;

(j) KWS: Koninklijke Volker Wessels Stevin NV and
Koninklijke Wegenbouw Stevin BV from 1 April
1994 to 15 April 2002;

(k) Nynäs: AB Nynäs Petroleum and Nynäs Belgium AB

from 1 April 1994 to 15 April 2002;

(l)

Shell: Shell Petroleum NV, The Shell Transport and
Trading Company Ltd and Shell Nederland Verkoop-
maatschappij BV from 1 April 1994 to 15 April
2002;

(a) Ballast Nedam: Ballast Nedam NV and Ballast Nedam
Infra BV from 21 June 1996 to 15 April 2002;

(m) Total: Total Nederland NV from 1 April 1994 to 15
April 2002 and Total SA from 1 November 1999 to
15 April 2002;

(b) BAM NBM: BAM NBM Wegenbouw BV from 1
April 1994 to 15 April 2002 and Koninklijke

(n) Wintershall AG from 1 April 1994 to 31 December

1999.

L 196/44

EN

Official Journal of the European Union

28.7.2007

(29)

For the infringements referred to in previous recital, the
following fines are imposed:

(a) Ballast Nedam: Ballast Nedam NV and Ballast Nedam
Infra BV, jointly and severally: EUR 4,65 million;

(b) BAM NBM: BAM NBM Wegenbouw BV: EUR 13,5
million, of which Koninklijke BAM Groep NV is
jointly and severally liable for EUR 9 million;

(c) BP: BP plc: EUR 0 million, of which BP Nederland
BV is jointly and severally liable for EUR 0 million
and BP Refining & Chemicals GmbH is jointly and
severally liable for EUR 0 million;

(d) Dura Vermeer: Vermeer Infrastructuur BV: EUR 5,4
million, of which Dura Vermeer Groep NV is jointly
and severally liable for EUR 3,9 million and Dura
Vermeer Infra BV is jointly and severally liable for
EUR 3,45 million;

(e) Esha: Esha Holding BV, Smid & Hollander BV and
jointly and

Esha Port Services Amsterdam BV,
severally: EUR 11,5 million;

(f) HBG: HBG Civiel BV: EUR 7,2 million;

(g) Heijmans: Heijmans NV and Heijmans Infrastructuur

BV, jointly and severally: EUR 17,1 million;

(i) Kuwait Petroleum: Kuwait Petroleum Corporation,
Kuwait Petroleum International Ltd and Kuwait
Petroleum (Nederland) BV,
jointly and severally:
EUR 16,632 million;

(j) KWS: Koninklijke Volker Wessels Stevin NV and
jointly and

Koninklijke Wegenbouw Stevin BV,
severally: EUR 27,36 million;

(k) Nynäs: AB Nynäs Petroleum and Nynäs Belgium AB,

jointly and severally: EUR 13,5 million;

(l)

Shell: Shell Petroleum NV, The Shell Transport and
Trading Company Ltd and Shell Nederland Verkoop-
maatschappij BV,
jointly and severally: EUR 108
million;

(m) Total: Total Nederland NV: EUR 20,25 million, of
which Total SA is jointly and severally liable for
EUR 13,5 million;

(n) Wintershall AG: EUR 11,625 million.

(30)

The undertakings listed above shall immediately bring to
an end the infringements referred to in recital 28, insofar
as they have not already done so. They shall refrain from
repeating any act or conduct described in recital 28, and
from any act or conduct having the same or similar
object or effect.

(h) Klöckner: Klöckner Bitumen BV: EUR 10 million, of
which Sideron Industrial Development BV is jointly
and severally liable for EUR 9 million;

(31) A non-confidential version of

the Decision will be
available in the authentic languages of the case on the
Competition DG website at: http://ec.europa.eu/comm/
competition/index_en.html