Summary of Commission Decision of 7 October 2009 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/C.39129 — Power Transformers) (notified under document C(2009) 7601) (Text with EEA relevance)
Date: 2009-10-07
Institutions: European Commission
Subjects: dominant position, electric machinery, electrical engineering, fine, restriction on competition, restrictive trade practice








C_2009296EN.01002101.xml










5.12.2009   


EN


Official Journal of the European Union


C 296/21





Summary of Commission Decision
of 7 October 2009
relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement
(Case COMP/C.39129 — Power Transformers)
(notified under document C(2009) 7601)
(Only the English and French text are authentic)
(Text with EEA relevance)
2009/C 296/08

On 7 October 2009, 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. A non-confidential version of the decision will be available on the Directorate-General for Competition website at:


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

1.   INTRODUCTION







(1)


The Decision is addressed to nine legal entities belonging to seven undertakings for infringing Article 81 of the Treaty and Article 53 of the EEA Agreement. From 9 June 1999 until 15 May 2003 the addressees participated in a single and continuous infringement, covering the entire EEA territory, consisting of an agreement by which they agreed on the sharing of markets by means of the gentlemen’s agreement (hereinafter GA) between European and Japanese producers of power transformers to respect each others’ home markets and to refrain from selling in these.




2.   CASE DESCRIPTION

2.1.   Procedure







(2)


The Decision is based on leniency applications by Siemens and Fuji, cooperation by AREVA T&D and Hitachi, evidence collected during inspections as well as replies to several requests for information.










(3)


The Statement of Objections was adopted on 20 November 2008 and the Oral Hearing took place on 17 February 2009. The Advisory Committee on restrictive practices and dominant positions issued a favourable opinion on 18 September and 2 October 2009 and the Commission adopted the Decision on 7 October 2009.




2.2.   Summary of the infringement







(4)


The case concerns an infringement of Article 81 of the EC Treaty and Article 53 of the EEA Agreement in the power transformers sector.










(5)


The anti-competitive behaviour relates to power transformers, auto transformers and shunt reactors with a voltage range of 380 kV and above. A power transformer is a major electrical component whose function is to reduce or increase the voltage in an electrical circuit. Power transformers are sold as stand-alone equipment or as part of turnkey power substations. The Decision covers all power transformers, whether sold as stand-alone product or included in turnkey projects, but excludes power transformers sold as part of gas-insulated switchgear-based substations which have already been subject to the Commission Decision of 24 January 2007 in Case COMP/F/38.899 — Gas-insulated switchgear.










(6)


The infringement lasted from at least 9 June 1999 until 15 May 2003. The parties to the infringement concluded an oral agreement covering the entire EEA territory by which they agreed on the sharing of markets by means of a gentlemen’s agreement between European and Japanese producers to respect each others’ home markets and to refrain from selling in these.










(7)


For this purpose, the parties organised meetings one to two times per year. The meetings took place in Europe and Asia, namely, Malaga, Singapore, Barcelona, Lisbon, Tokyo, Vienna, and Zurich, to reaffirm their respect of the agreement. Each member of the cartel was assigned a secret code. Several contemporaneous documents and statements by Siemens and Fuji confirm these facts.




2.3.   Addressees and duration







(8)


ABB Ltd, AREVA T&D SA, Alstom (Société Anonyme), Siemens AG, Siemens Aktiengesellschaft Österreich, Fuji Electrics Holdings Co. Ltd, Hitachi Ltd, Hitachi Europe Ltd and Toshiba Corporation are the addressees of the Decision.










(9)


The duration of the infringement for all addressees except Siemens Aktiengesellschaft Österreich is from 9 June 1999 to 15 May 2003. For Siemens Aktiengesellschaft Österreich, the duration is from 29 May 2001 to 15 May 2003.




2.4.   Remedies







(10)


The Decision applies the 2006 Guidelines on fines.




2.4.1.   Basic amount of the fine







(11)


The basic amount of the fine was determined as a proportion of the value of the sales of power transformers made by each undertaking in the relevant geographic area during the year 2001 (variable amount), multiplied by the number of years of infringement, plus an additional amount, also calculated as a proportion of the value of sales, in order to deter horizontal price-fixing agreements (entry fee).










(12)


Taking into account the nature of the infringement, the combined market share of all undertakings concerned, the geographic scope of the infringement and implementation, both the variable amount and the entry fee were set at 16 %.










(13)


As the infringement lasted for almost four years, the variable amount was multiplied by four.




2.4.2.   Adjustments to the basic amount

2.4.2.1.   Aggravating circumstances







(14)


Recidivism is an aggravating circumstance for ABB Ltd (one previous cartel decision taken into account) leading to an increase in the fine by 50 %.




2.4.2.2.   Mitigating circumstances







(15)


The Decision also concludes that there are exceptional circumstances present in this case which justify granting Hitachi and AREVA T&D each a reduction of 18 % of the fine for their effective cooperation outside the 2002 Leniency Notice. This reduction does not apply to AREVA T&D’s former parent company Alstom.




2.4.3.   Deterrence







(16)


The Decision pays attention to the need to ensure that fines have a sufficiently deterrent effect; to that end, the fine to be imposed on Siemens and Hitachi is multiplied by 1,2 and the fine for Toshiba is multiplied by 1,1.




2.4.4.   Application of the 2002 Leniency Notice: reduction of fines







(17)


As regards the application of the 2002 Leniency Notice, Siemens is granted full immunity from fines and the fine for Fuji is reduced by 40 %. The leniency applications by ABB, AREVA T&D and Hitachi were rejected for not having provided significant added value compared to the information already in the Commission’s possession.




3.   FINES IMPOSED BY THE DECISION













(a)


ABB Ltd:






EUR 33 750 000










(b)


Alstom (Société Anonyme):






EUR 16 500 000, of which AREVA T&D SA is jointly and severally liable for EUR 13 530 000










(c)


Siemens AG:






EUR 0, of which Siemens Aktiengesellschaft Österreich is jointly and severally liable for EUR 0










(d)


Fuji Electrics Holdings Co. Ltd:






EUR 1 734 000










(e)


Hitachi Ltd:






EUR 2 460 000, of which Hitachi Europe Ltd is jointly and severally liable for EUR 2 460 000










(f)


Toshiba Corporation:






EUR 13 200 000






(1)  OJ L 1, 4.1.2003, p. 1.