Summary of Commission Decision of 8 December 2009 relating to a proceeding under Article 65 of the ECSC Treaty (Case COMP/37.956 — Reinforcing bars, re-adoption) (notified under document C(2009) 9912 final)
Date: 2009-12-08
Institutions: European Commission
Subjects: cement, dominant position, economic concentration, merger control, plate, restriction on competition, restrictive trade practice








C_2011098EN.01001601.xml










30.3.2011   


EN


Official Journal of the European Union


C 98/16





Summary of Commission Decision
of 8 December 2009
relating to a proceeding under Article 65 of the ECSC Treaty
(Case COMP/37.956 — Reinforcing bars, re-adoption)
(notified under document C(2009) 9912 final)
(Only the Italian text is authentic)
2011/C 98/06

On 30 September 2009, the Commission adopted a decision (amended by the decision of 8 December 2009) relating to an infringement of Article 65 of the ECSC 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 the penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business secrets. A non-confidential version of the full decision can be found in the authentic language of the case and in the working languages of the Commission on the website of the Directorate-General for Competition, at the following address:


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

1.   INTRODUCTION







(1)


This Decision is a re-adoption of the Decision of 17 December 2002 (2) whereby the Commission first condemned a cartel in the reinforcing bars sector in Italy on the basis of the Treaty establishing the European Coal and Steel Community (hereinafter ‘the ECSC Treaty’). On 25 October 2007, the Court of First Instance annulled that Decision, ruling that the ECSC could not constitute the legal basis for the Decision since the Treaty had expired (3) when the Decision was adopted (4).










(2)


Although it concerns the same infringement, the new Decision is therefore based on Articles 7(1) and 23(2) of Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in the Treaty (5) (Articles 101 and 102 TFEU).










(3)


The Decision is addressed to eight Italian undertakings corresponding to eleven companies: Alfa Acciai SpA, Feralpi Holding SpA, Ferriere Nord SpA, IRO Industrie Riunite Odolesi SpA, Leali SpA, Acciaierie e Ferriere Leali Luigi SpA (in liquidation), Lucchini SpA, S.P. SpA (in liquidation), Riva Fire SpA, Valsabbia Investimenti SpA and Ferriera Valsabbia SpA. The agreement in which they took part lasted from 6 December 1989 to 4 July 2000.




2.   CASE DESCRIPTION

2.1.   Procedure







(4)


On the basis of the information gathered during inspections carried out at the offices of reinforcing bar manufacturers and the answers to requests for information sent to those undertakings under Article 47 of the ECSC Treaty, on 26 March 2002 the Commission initiated proceedings under Article 65 of the ECSC Treaty and adopted a Statement of Objections, notified under Article 36 of the ECSC Treaty to the undertakings to which the Decision is addressed.










(5)


In the course of the investigation, Ferriere Nord SpA and Leali SpA contacted the Commission pursuant to the Commission Notice on the non-imposition or reduction of fines in cartel cases of 18 July 1996 (6) (hereinafter the ‘Leniency Notice’).










(6)


The addressees of the Statement of Objections submitted their written comments and, with the exception of Lucchini SpA, asked to present them orally to the Hearing Officer at the hearing which took place on 13 June 2002.










(7)


On 13 August 2002, the Commission sent to the same addressees an additional Statement of Objections in which it explained what its position would be regarding continuation of the proceedings following the expiry of the ECSC Treaty. The Hearing Officer held a second hearing in the presence of representatives of the Member States on 30 September 2002.










(8)


The procedure culminated in the adoption of the Decision of 17 December 2002, subsequently annulled by the Court of First Instance on 25 October 2007 following the appeals lodged by eight of the nine addressee undertakings. However, the Decision acquired the authority of a final decision in respect of the industry federation Federacciai (Federazione delle imprese Siderurgiche Italiane (Federation of Italian Steel Undertakings)), which had not lodged an appeal.










(9)


The annulment of the Decision of 17 December 2002 is based only on the erroneous legal basis (Article 65(4) and (5) of the ECSC Treaty, which had expired when the Decision was adopted). Therefore the annulment of the Decision does not invalidate the administrative procedure which preceded the adoption of the Decision. By letter of 30 June 2008, the Commission therefore informed the interested parties of its intention of re-adopting the annulled Decision with the legal basis corrected. All the parties submitted comments.










(10)


The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on the draft decision on 18 September 2009. The Commission adopted this decision on 30 September 2009 (and it was subsequently amended on 8 December 2009 in view of certain numerical references contained in eight footnotes and an annex which had not been annexed to the initial Decision).




2.2.   Summary of the infringement







(11)


The addressees took part in a single, complex and continuous infringement of Article 65(1) of the ECSC Treaty which had as its object or effect the fixing of prices and which provided the basis for agreements limiting or controlling output or sales on the Italian market for concrete reinforcing bars in bars or coils.










(12)


More specifically, from at least the end of 1989 the Federacciai industry federation and the other undertakings cooperating with it decided on and applied uniform prices for ‘size extras’ for reinforcing bars in Italy. From April 1992 the firms, with the support of Federacciai, extended their decisions and behaviour to cover the base price for reinforcing bars in Italy. From that date until September 1995 the agreement extended to the fixing of payment terms.










(13)


From at least the end of 1994 Federacciai structured its business activities more systematically, as regards both the prices and quantities of reinforcing bars produced and sold.










(14)


From 1995 the parties to the agreement started colluding on reducing or controlling output or sales in order to reduce the quantities of reinforcing bars on the market. Some of them set up a more detailed and systematic system of multilateral mutual control of quantities produced and sold by each firm.










(15)


The Commission does not have sufficient evidence to show that the competition rules were infringed in the period after 4 July 2000. It should be pointed out that not all the firms necessarily took part in all the behaviour described here and that some of them took part for a shorter time.




2.3.   Attribution of liability and duration of the infringement







(16)


The addressee Alfa Acciai SpA is an undertaking to which can be attributed not only the behaviour of Alfa Acciai SpA but also the behaviour of Acciaieria Megara SpA (as from 1996), Alfa Acciai Srl (before 1996) and Acciaierie di Sicilia SpA. Alfa Acciai SpA was involved in the agreement from 6 December 1989 to 4 July 2000. From 13 June 1995 to 12 February 1996, on the other hand, Alfa was not involved in the part of the agreement relating to the limitation or control of output or sales.










(17)


The addressee Feralpi Holding SpA is the legal successor of Feralpi Siderurgica SpA, which was an addressee of the annulled 2002 Decision as an undertaking to which can be attributed not only the behaviour of Feralpi Siderurgica SpA but also the behaviour of Feralpi Siderurgica Srl and the former Feralpi Siderurgica SpA. Its involvement in the agreement lasted from 6 December 1989 until 27 June 2000.










(18)


The addressees Leali SpA and Acciaierie e Ferriere Leali Luigi SpA (in liquidation) constitute an undertaking to which can be attributed not only the behaviour of Leali SpA and Acciaierie e Ferriere Leali Luigi SpA (in liquidation) but also the behaviour of Acciaierie e Ferriere Leali Luigi SpA (until November 1998), which they replaced. After that date, Leale SpA is solely liable for the behaviour objected to. Its involvement in the agreement lasted from 6 December 1989 until 27 June 2000.










(19)


The addressees Lucchini SpA and S.P. SpA (in liquidation) constitute an undertaking to which can be attributed not only the behaviour of Lucchini SpA and Siderpotenza SpA (now ‘S.P. SpA (in liquidation)’) but also the behaviour of the joint undertakings Siderpotenza SpA (until 1991) and Lucchini Siderurgica SpA (until the end of 1997). Its involvement in the agreement lasted from 6 December 1989 until 27 June 2000. From 9 June 1998 to 30 November 1998 the undertaking did, however, suspend its involvement in the part of the agreement relating to the limitation or control of output or sales.










(20)


The addressee Riva Fire SpA is the legal successor to Riva SpA, which was an addressee of the annulled 2002 Decision as an undertaking to which can be attributed not only the behaviour of Riva SpA but also the behaviour of Fire Finanziaria SpA, Riva Prodotti Siderurgici SpA, Acciaierie e Ferriere di Galtarossa SpA and Acciaierie del Tanaro SpA. Its involvement in the agreement lasted from 6 December 1989 until 27 June 2000. From 1 May 1998 to 30 November 1998 the undertaking did, however, suspend its involvement in the part of the agreement relating to the limitation or control of output or sales.










(21)


The addressees Valsabbia Investimenti SpA and Ferriera Valsabbia SpA are an undertaking to which can be attributed not only the behaviour of Valsabbia Investimenti SpA and Ferriera Valsabbia SpA but also the behaviour of the former Ferriera Valsabbia SpA (until 2000) and the even earlier Ferriera Valsabbia SpA (until 1990). The undertaking was involved in the agreement from 6 December 1989 to 27 June 2000.










(22)


Lastly, the addressees Ferriere Nord SpA and IRO Industrie Riunite Odolesi SpA are the same undertakings and the same legal persons, with the same business names, which engaged in the behaviour which this Decision holds to be the infringement of EU competition law to which the Commission has objected. Ferriere Nord SpA was involved in the agreement from 1 April 1993 to 4 July 2000. However, from 13 June 1995 to 27 September 1998 Ferriere Nord was not a party to the part of the agreement relating to the limitation or control of output or sales. IRO Industrie Riunite Odolesi SpA was involved in the agreement from 6 December 1989 to 27 June 2000.




2.4.   Fines







(23)


The amount of the fines has been set according to the 1998 Guidelines on Fines. Since this is a re-adopted Decision, the amount of the fines imposed is, with one small exception, virtually identical to those imposed by the annulled Decision of 2002, since the infringement is the same.




2.4.1.   Basic amount







(24)


The infringement consisted of a single, complex and continuous agreement which had as its object the fixing of prices, and on the basis of which agreements were also made limiting or controlling output or sales on the Italian market for concrete reinforcing bars in bars or coils for reinforced concrete. By its nature such behaviour constituted a serious infringement of Article 65(1) of the ECSC Treaty. The cartel covered the whole of Italy. The Commission therefore considers that the addressees committed a very serious infringement. The fact that the restrictive practice was confined solely to the Italian market does not mean that the gravity of the infringement can be regarded as serious rather than very serious, since account must be taken of the volume of Italian production.










(25)


However, without prejudice to the very serious nature of the infringement, the Commission has, in determining the basic amount of the fine, taken account of the specific characteristics of the case, involving a national market that was subject at the time to the rules of the ECSC Treaty and on which the firms in question accounted for a limited share of the relevant market during the first period of the infringement.




2.4.1.1.   Differential treatment







(26)


Within the category of very serious infringements, the scale of fines applicable makes it possible to treat firms differently in order to take account of the effective economic capacity of the offenders to impair competition significantly, as well as to set the fine at a level that ensures sufficient deterrence.










(27)


As already indicated in the annulled Decision of 2002, the Commission considers that the market shares acquired by the addressees of this Decision in the last full calendar year of the infringement (1999) are not representative of their actual presence on the relevant market in the reference period. Between 1990 and 1999 the market shares of the firms virtually tripled. On the basis of the average market shares in the period 1990-1999, it is possible to identify three groups of firms in descending order of presence on the market.










(28)


As regards Riva and Lucchini/Siderpotenza, the basic amount of the fine calculated in relation to the relative size of the relevant market must be increased in order to take account of the size and global resources of the firms. The turnover in ECSC products generated by these firms is very much higher than that of the other firms involved. It should also be pointed out how the documents in the case show that, on many occasions, the heads of these firms were directly involved in the infringements objected to. In order to ensure a level of sufficient deterrence, the basic amount of the fine should be increased for these two undertakings. In the annulled Decision, the Commission increased the basic amount of the fine by 225 % in the case of Lucchini/Siderpotenza (because its turnover in ECSC products is some three times greater than that of the largest of the other firms) and by 375 % in the case of Riva, which has a total turnover in ECSC products that is about three times higher than that of Lucchini/Siderpotenza. The Lucchini/Siderpotenza multiplier is reduced to 200 % in this Decision because the ratio of Lucchini/Siderpotenza turnover to that of the largest of the other firms has changed in 2008 (from 3:1 in 2001 to almost 2:1 in 2008). In reviewing the scale of the multipliers, the Commission also took account of inflation and the increase in the turnover of the undertakings.




2.4.1.2.   Duration







(29)


The infringement lasted for more than ten years and six months as regards all the firms with the exception of Ferriere Nord SpA, where the infringement lasted for more than seven years. The basic amount of the fine is thus increased by 105 % for all the firms, with the exception of Ferriere Nord, where it is increased by 70 %.




2.4.2.   Aggravating circumstances







(30)


In the present case, the Commission has identified only one aggravating circumstance, i.e. the fact that Ferriere Nord SpA has already been the subject of a Commission Decision of 2 August 1989 concerning its involvement in an agreement to fix prices and limit sales in the welded steel mesh sector (7).










(31)


The Commission therefore considers it necessary to increase the basic amount in respect of Ferriere Nord SpA by 50 %.




2.4.3.   Attenuating circumstances







(32)


The Commission has not identified any attenuating circumstances.




2.4.4.   Application of the 1996 Leniency Notice







(33)


The Commission acknowledges that Ferriere Nord provided it with useful information that allowed it to gain a better understanding of the details of the restrictive practice. It considers that this satisfies the first paragraph of point D of the Notice, which states that a reduction in the amount of a fine is possible if, before a statement of objections is sent, an enterprise provides the Commission with information, documents or other evidence which materially contribute to establishing the existence of the infringement. The Commission considers that granting Ferriere Nord SpA a reduction of 20 % in the amount of the fine is therefore justified.










(34)


However, the cooperation offered by Leali SpA does not meet the requirements of point D of the Leniency Notice.




3.   FINES IMPOSED BY THE DECISION







Alfa Acciai SpA


EUR 7,175 million




Feralpi Holding SpA (formerly Feralpi Siderurgica SpA)


EUR 10,25 million




Ferriere Nord SpA


EUR 3,57 million




IRO Industrie Riunite Odolesi SpA


EUR 3,58 million




Leali SpA and Acciaierie e Ferriere Leali Luigi SpA (in liquidation), jointly and severally liable


EUR 6,093 million




Leali SpA


EUR 1,082 million




Lucchini SpA and S.P. SpA (in liquidation) (formerly Siderpotenza SpA), jointly and severally liable


EUR 14,35 million




Riva Fire SpA (formerly Riva Acciaio SpA)


EUR 26,9 million




Valsabbia Investimenti SpA and Ferriera Valsabbia SpA, jointly and severally liable


EUR 10,25 million






(1)  OJ L 1, 4.1.2003, p. 1.

(2)  Decision 2006/894/EC (OJ L 353, 13.12.2006).

(3)  On 23 July 2002.

(4)  On 17 December 2002.

(5)  See footnote 1.

(6)  OJ C 45, 19.2.2002, p. 3.

(7)  OJ L 260, 6.9.1989, p. 1.