Summary of Commission Decision of 28 November 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.165 — Flat Glass) (notified under document number C(2007) 5791) (Text with EEA relevance)
Date: 2007-11-28
Institutions: European Commission
Subjects: fine, glass, glass industry, price agreement, restriction on competition, unlawful agreement

24.5.2008

EN

Official Journal of the European Union

C 127/9

Summary of Commission Decision

of 28 November 2007

relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement

(Case COMP/39.165 — Flat Glass)

(notified under document number C(2007) 5791)

(Only the English and French texts are authentic)

(Text with EEA relevance)

(2008/C 127/11)

1. INTRODUCTION

2.2. Functioning of the cartel

1. On 28 November 2007, the Commission adopted a deci-
sion 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.

2.

A non-confidential version of the decision is available on
the Competition Directorate General website
the
following address:

at

http://ec.europa.eu/comm/competition/antitrust/cases/index

2. CASE DESCRIPTION

2.1. Procedure

6.

7.

8.

9.

3.

4.

5.

(Asahi's

the premises of Glaverbel

This case was initiated on the basis of information from
national competition authorities. Inspections were carried
out at
subsidiary,
recently renamed AGC Flat Glass Europe), Guardian,
Pilkington and Saint-Gobain in February 2005. A second
round of
the premises of
Guardian and the GEPVP (European Flat Glass Trade Orga-
nisation) in March 2005. In between the two rounds of
inspections, on 2 March 2005, Asahi and Glaverbel
in the alternative,
applied for immunity from fines or,
reduction of fines.

took place at

inspections

Several written requests for information were addressed to
the undertakings involved in the anti-competitive arrange-
ments. The Commission rejected Asahi's and Glaverbel's
request
the Leniency
immunity under point 8 of
Notice and informed them that it intends to grant them a
reduction of 30-50 % of any fines.

for

The Statement of Objections was adopted on 9 March
2007 and notified to the parties. An oral hearing was held
on 7 June 2007. Only Asahi, Glaverbel and Guardian
participated in the hearing.

(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).

The evidence of
period from January 2004 to February 2005.

the existence of

the cartel covers the

The collusive practice can be categorised as follows: essen-
tially price fixing practices for flat glass in the EEA. The
Commission considers that this collusion forms part of a
single overall scheme and therefore constitutes a single
the EC Treaty and of
infringement of Article 81 of
Article 53 of the EEA Agreement.

The Advisory Committee on Restrictive Practices and
Dominant Positions issued a favourable opinion on 16 and
23 November 2007.

2.3. Summary of the infringement

The addressees of the Decision participated in a single and
continuous infringement of Article 81 of the Treaty estab-
lishing the European Community and of Article 53 of the
Agreement on the European Economic Area, involving the
coordination of price increases and other commercial
conditions for flat glass products.

2.3.1. The flat glass sector

10. The product categories concerned by the decision are flat
glass products for use in buildings. They comprise float
glass (produced in the ‘float’ process, the basic flat glass
product accounting for about 90 % of flat glass capacity),
low-E glass (‘low emissivity’; glass minimising condensation
and heat loss), laminated glass (used for special safety and
security purposes) and unprocessed mirrors (silvered glass
to be used as mirrors).

sold to independent customers

11. The estimated EEA market value for these product cate-
in 2004 was
gories
approximately EUR 1 700 million. The four undertakings
involved in the infringement had an estimated market
share of at least 80 %.

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Official Journal of the European Union

24.5.2008

of

53

of Article

the Agreement

12. The addressees referred to below participated in a single
and continuous infringement of Article 81 of the EC Treaty
and
the
European Economic Area, covering the territory of the
EEA, the main features of which were that they agreed
price increases in the EEA as well as the timing of their
announcements, minimum prices and other commercial
conditions for the four mentioned flat glass product cate-
gories. They also exchanged sensitive commercial informa-
tion.

on

undertakings participating in the infringement (in this case
over 80 %).

18. Taking into account that the infringement lasted for at
least 1 year and 1 month for Pilkington and Saint-Gobain,
the variable amount has been multiplied by 1,5. As regards
Glaverbel the variable amount has been multiplied by 1
instead of 1,5 to take into account adjusted duration (see
point 30 below). For Guardian the infringement lasted for
10 months leading the variable amount to be multiplied
by 1.

2.4. Addressees

2.5.2. Adjustments to the basic amount

13. The decision is addressed to the following legal entities
which belong to the four participating undertakings:

Aggravating and attenuating circumstances

(a) Asahi Glass Company Limited and AGC Flat Glass

Europe SA/NV;

(b) Guardian Industries Corp. and Guardian Europe SARL;

(c) Pilkington Group Limited, Pilkington Holding GmbH

and Pilkington Deutschland AG;

(d) Compagnie de Saint-Gobain SA and Saint-Gobain

Glass France SA.

14. Liability of the ultimate parent companies is established on
the basis of the presumption of the exercise of decisive
influence over their wholly-owned subsidiaries, which is
reinforced by several additional indicia.

2.5. Remedies

15. For setting the fines imposed in this case, the Commission
applied the principles laid down in its Guidelines on
to
the method of
imposed pursuant
setting fines
Article 23(2)(a) of Regulation (EC) No 1/2003,
as
published in OJ C 210 of 1.9.2006, p. 2 (hereinafter
called: ‘Guidelines on fines’).

2.5.1. Basic amount of the fine

16. According to the Guidelines on fines, the basic amount of
the fine has to be determined as a proportion of the value
of the sales of the relevant product made by each under-
taking in the relevant geographic area during the last full
business year of
(‘variable amount’),
the infringement
multiplied by the number of years of the infringement,
plus an additional amount, also calculated as a proportion
of the value of sales,
in order to deter horizontal price
fixing agreements (‘additional amount’).

17. According to the Guidelines on fines, the criteria to be
taken into account in order to set out these proportions
are, i.e. the nature of the infringement (in this case hori-
zontal price-fixing) and the combined market share of the

19. All aggravating circumstances and claims for attenuating
circumstances have been discussed as regards all undertak-
ings (1).

Specific increase for deter rence

20. According to the Guidelines, in determining the amount of
the fine, the Commission pays particular attention to the
need to ensure that
fines have a sufficiently deterrent
effect. To that end, it may increase the fine to be imposed
on undertakings which have a particularly large turnover
beyond the sales of goods or services to which the infrin-
gement relates (point 30 of the 2006 Guidelines on fines),
even if it is not possible to estimate the amount of gains
improperly made as a result of the infringement (point 31
of the 2006 Guidelines on fines), as the fine imposed must
fulfil its objective of disciplining the infringing undertaking
having taken into account its overall size.

21. The Commission gave due considerations to the need to
increase the fine on undertakings which have a particularly
large turnover beyond the sales of goods or services to
which the infringement relates (1).

2.5.3. Application of the 10 % turnover limit

22. The 10 % worldwide turnover

in
Article 23(2) of Regulation (EC) No 1/2003 is applied to
the fines calculated as appropriate.

limit provided for

2.5.4. Application of the 2002 Leniency Notice: reduction of

fines

23. As mentioned under point 6 above, Asahi and its
subsidiary Glaverbel applied for immunity and in the alter-
native for a reduction of fines under the 2002 Leniency
Notice.

(1) The European Commission cannot disclose the figures because they

may be confidential.

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Immunity

24. The Commission rejected Glaverbel and Asahi's application
for immunity under points 8(a) and (b) of the Leniency
Notice for the following reasons.

25. As

inspections had already been carried out before
immunity under point 8(a)

Asahi/Glaverbel's application,
was no longer available.

26. For the period 20 April 2004 to 22 February 2005, the
contemporaneous evidence relied on by the Commission
in order to find the infringement concerned by the present
decision are mainly contemporaneous notes of cartel meet-
ings copied during the inspections. Glaverbel and Asahi
brought few elements with evidentiary value which the
Commission did not yet have for that period, except for
corroborating statements. At the time Glaverbel and Asahi
applied for immunity/leniency the Commission therefore
already disposed of contemporaneous evidence copied
during the inspections which was sufficient to find an
infringement of Article 81.

Significant added value

27. Asahi/Glaverbel was the first and only undertaking to meet
the requirements of point 21 of the Leniency Notice.

28. Considering the value of

their

contribution to the
Commission's case, the early stage at which they provided
this contribution and the extent of
their cooperation
following their submissions, the Commission has decided
to grant Asahi and Glaverbel a reduction of 50 % of the
fine that would otherwise have been imposed

Point 23 last paragraph

29. Although the Commission had evidence of the infringe-
ment from the inspection for the meetings of 20 April
2004, 2 December 2004 and 11 February 2005, Glaverbel
and Asahi's
submissions enabled the Commission to
extend the duration of the cartel back to 9 January 2004.

30. This leads to the result that the variable amount has been
multiplied by 1 instead of 1,5 for Asahi/Glaverbel to take
account of adjusted duration of the infringement.

3. DECISION

31. The addressees of the Decision and the duration of their

involvement were as follows:

(a) Asahi Glass Company Limited and AGC Flat Glass
Europe SA/NV, from 9 January 2004 to 22 February
2005;

(b) Guardian Industries Corp. and Guardian Europe SARL,

from 20 April 2004 to 22 February 2005;

(c) Pilkington Group Limited, Pilkington Holding GmbH
and Pilkington Deutschland AG from 9 January 2004
to 22 February 2005;

(d) Compagnie de Saint-Gobain SA and Saint-Gobain
Glass France SA from 9 January 2004 to 22 February
2005.

32. For the infringements referred to in the previous recital,

the following fines were imposed:

(a) Asahi Glass Company Limited and AGC Flat Glass
Europe SA/NV, jointly and severally: EUR 65 000 000;

(b) Guardian Industries Corp. and Guardian Europe SARL,

jointly and severally: EUR 148 000 000;

(c) Pilkington Group Limited, Pilkington Holding GmbH
and Pilkington Deutschland AG, jointly and severally:
EUR 140 000 000;

(d) Compagnie de Saint-Gobain SA and Saint-Gobain
severally:

France

jointly

and

SA,

Glass
EUR 133 900 000.

33. The undertakings listed above were ordered to bring to an
end the infringements referred to in point 12, insofar as
they have not already done so and to refrain from
repeating any act or conduct described in point 12, and
from any act or conduct having the same or similar object
or effect.