Summary of Commission Decision of 20 November 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/38.432 — Professional videotapes) (notified under document number C(2007) 5469 final) (Text with EEA relevance)
Date: 2008-03-01
Institutions: European Commission
Subjects: commercial contract, dominant position, fine, fixing of prices, magnetic medium, restriction on competition, restrictive trade practice

C 57/10

EN

Official Journal of the European Union

1.3.2008

Summary of Commission Decision

of 20 November 2007

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

(Case COMP/38.432 — Professional videotapes)

(notified under document number C(2007) 5469 final)

(Only the English text is authentic)

(Text with EEA relevance)

(2008/C 57/08)

I. INTRODUCTION

(6) An oral hearing was held on 12 June 2007.

(1) On 20 November 2007, the Commission adopted a deci-
the
sion relating to a proceeding under Article 81 of
EC Treaty and Article 53 of
In
the EEA Agreement.
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. A non-confidential
version of the full text of the decision can be found in
the authentic language of
the Directorate
General
for Competition's web-site: http://ec.europa.eu/
comm/competition/index_en.html

the case at

II. CASE DESCRIPTION

1. Procedure

(2) This case started as an ex officio investigation with dawn
raids on 28 and 29 May 2002 at a total of eleven
premises belonging to members of the Sony, Fuji and
Maxell groups in five Member States. Two incidents
occurred at Sony's premises, one involving the destruction
of documents, the other a refusal to reply to questions.

fines under the 2002 Leniency Notice (2).

(3) On 5 December 2006, Fuji formally applied for a reduc-
tion of
Its
application made reference to information previously
submitted to the Commission since June 2002. By letter
of 23 February 2007, the Commission informed Fuji of
its intention to grant Fuji a reduction of 30 to 50 % of
the fine under the 2002 Leniency Notice.

(4) The Statement of Objections was adopted on 8 March
2007 and notified to all the parties by 16 March 2007.

2. Summary of the infringement

(7) TV-stations and independent producers of TV-content and
advertising films are the main customers of professional
videotape. The decision concerns only the two most
popular professional videotape formats at the time of the
infringement: Betacam SP and Digital Betacam, which
together represented 77 % of all professional videotape
sales in the EEA in 2001. The estimated EEA market value
for these two formats was approximately EUR 118 million
in 2001. For that year, the three undertakings involved in
the infringement held an estimated market share of 89 %.

(8) The decision concludes that Sony, Fuji and Maxell oper-
ated between 23 August 1999 and 16 May 2002 a cartel
with a view to increasing and maintaining or stabilising
prices for Betacam SP and Digital Betacam videotape in
the EEA market, and also exchanged information to facili-
tate and/or monitor their implementation.

(9) The companies organised three (successful) rounds of
price increases and otherwise endeavoured to stabilise the
prices. They also regularly discussed past and forthcoming
tenders, typically from public and private TV-stations.

(10) There were 11 meetings between representatives of the
three undertakings during the period of the infringement,
in all of which they discussed and agreed prices and/or
exchanged sensitive commercial
information, as well as
continuous contacts between meetings to discuss prices
and specific clients and to follow-up the implementation
of the cartel agreements.

(11) The decision further concludes that it has been established
the agreements on prices were generally imple-

that
mented.

(5) On 10 April 2007 Maxell formally applied for a reduction
of fines under the 2002 Leniency Notice. Its application
made reference to information previously submitted to the
Commission since October 2004.

(12) The decision is addressed to the following legal entities,
which belong to the three participating undertakings
(Sony, Fuji and Maxell):

3. Addressees

(1) OJ L 1, 4.1.2003, p. 1.
(2) Commission notice on immunity from fines and reduction of fines in

cartel cases (OJ C 45, 19.2.2002, p. 3).

(a) Sony Corporation;

(b) Sony Europe Holding BV;

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(c) Sony France SA;

4.2.2. M i t i g a t i n g c i r c u m s t a n c e s

(d) FUJIFILM Holdings Corporation;

(e) FUJFILM Corporation;

(f) FUJIFILM Recording Media GmbH;

(g) Hitachi Maxell, Ltd; and

(h) Maxell Europe Limited.

(13) Liability of the ultimate parent companies is established
both because of their direct participation in one of the
cartel meetings, which was held in Japan, and on the basis
of the presumption of the exercise of decisive influence
over their wholly-owned subsidiaries, which is reinforced
by several additional indicia.

4. Remedies

(14) This is the first cartel case in which the 2006 Guidelines

on Fines (1) have been applied.

4.1. Basic amount of the fine

(15) The basic amount of the fine is determined as a propor-
tion of the value of the sales of the relevant product made
by each undertaking in the relevant geographic area
during the last
the infringement
full business year of
(‘variable amount’), multiplied by the number of years of
infringement, plus an additional amount (‘entry fee’), also
calculated as a proportion of the value of sales, which is
meant
to enhance deterrence in respect of horizontal
price fixing agreements.

(16) Having considered different

the
nature, the combined market share and the geographic
scope of the infringement, the decision applies in this case
a variable amount of 18 % and an entry fee of 17 %.

in particular

factors,

(17) Taking into account that the infringement lasted for at
least 2 years and 8 months, the variable amount is multi-
plied by 3.

(19) The parties argued for the application of a series of miti-
gating circumstances such as early termination of
the
infringement,
in the infringement,
effective co-operation outside the Leniency Notice, isolated
and unauthorized conduct without senior management's
knowledge and introduction of a compliance program
after the infringement. These claims are all rejected.

limited involvement

4.2.3. S p e c i f i c i n c r e a s e fo r d e t e r r e n c e

(20) Taking into account the need to ensure that fines have a
sufficiently deterrent effect, and in consideration of the
large size of Sony's turnover beyond the sales of goods or
services to which the infringement relates, the decision
increases the fine to be imposed to this undertaking
by 10 %.

4.3. Application of the 10 % turnover limit

(21) The 10 % worldwide turnover limit provided for

in
Article 23(2) of Regulation (EC) No 1/2003 is not attained
in respect of the fine to be imposed on any of the under-
takings.

4.4. Application of

the 2002 Leniency Notice: reduction of

fines

(22) As mentioned under paragraphs 5 and 6 above, both Fuji
fines

filed applications for a reduction of

and Maxell
under the 2002 Leniency Notice.

(23) The decision grants a reduction of the fine of 40 % for
Fuji and 20 % for Maxell. These percentages of reduction
take into account
to which the evidence
submitted by each company represented added value, as
well as the time at which this evidence was submitted.

the extent

(24) Sony's contribution to this case was limited to not
contesting most of
the facts after having received the
Statement of Objections. The decision concludes that this
does not constitute significant added value under the
Leniency Notice.

4.2. Adjustments to the basic amount

III. DECISION

4.2.1. A g g r a v a t i n g

c i r c u m s t a n c e s :

r e f u s a l

t o

c o o p e r a t e o r o b s t r u c t i o n

(18) As mentioned in paragraph 2,

two separate incidents
occurred at Sony's premises during the inspection. The
decision concludes
constituted
obstruction and justify an increase of 30 % in the basic
amount imposed on Sony.

that both incidents

(1) Guidelines on the method of setting fines imposed pursuant to
Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ C 210, 1.9.2006,
p. 2).

(25) The following undertakings infringed Article 81 of the
Treaty and Article 53 of the EEA Agreement by partici-
pating, from 23 August 1999 until 16 May 2002, in a
complex of agreements and concerted practices with a
view to increasing and to maintaining or stabilising prices
for Betacam SP and Digital Betacam videotape in the EEA
market:

(a) Sony Corporation;

(b) Sony Europe Holding BV;

(c) Sony France SA;

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(d) FUJIFILM Holdings Corporation;

(e) FUJFILM Corporation;

(f) FUJIFILM Recording Media GmbH;

(g) Hitachi Maxell, Ltd; and

(h) Maxell Europe Limited.

(b) FUJIFILM Holdings Corporation, FUJFILM Corporation
jointly and

and FUJIFILM Recording Media GmbH,
severally: EUR 13 200 000;

(c) Hitachi Maxell, Ltd and Maxell Europe Limited, jointly

and severally: EUR 14 400 000.

(26) For the infringement referred to in the previous para-

graph, the following fines are imposed:

(a) Sony Corporation, Sony Europe Holding BV and Sony
France SA, jointly and severally: EUR 47 190 000;

(27) The undertakings listed above are ordered to immediately
bring to an end the infringement insofar as they have not
already done so and to refrain from repeating any act or
conduct described in paragraph 25 and from any act or
conduct having the same or similar object or effect.