Final report of the Hearing Officer — Case COMP/38.866 — Animal feed phosphates
Date: 2011-04-09
Institutions: European Commission
Subjects: animal nutrition, dominant position, market-sharing agreement, merger control, phosphate, restriction on competition








C_2011111EN.01001301.xml










9.4.2011   


EN


Official Journal of the European Union


C 111/13





Final report of the Hearing Officer (1)

Case COMP/38.866 — Animal feed phosphates
2011/C 111/08
This case concerns a cartel between six groups of undertakings active in the production of animal feed phosphates (2). The undertakings participated in a cartel that lasted for an overall period of about 35 years (1969-2004) and covered several Member States.
With regard to five groups of undertakings the draft decision is the result of the settlement procedure (3) whereas one group choose not to settle and hence opted for the ordinary procedure (so-called hybrid case). As a consequence, two distinct decisions will be adopted in this case, one common decision for the settling undertakings and one decision for the other undertaking.

Background

Following an immunity application from Kemira in November 2003, unannounced inspections were carried out in February 2004. Five years later, on 19 February 2009, the Commission formally initiated proceedings and invited the undertakings concerned to indicate in writing whether they were prepared to engage in settlement discussions with a view to introduce settlement submissions (4). All undertakings accepted the invitation and bilateral settlement discussions followed suit between Competition DG and each of the addressees.
Following these discussions all undertakings, except Timab Industries S.A. and its parent company Compagnie Financière et de Participation Roullier (hereafter Timab/CFPR), introduced settlement submissions. Consequently, with regard to Timab/CFPR, the proceedings reverted back to the ordinary procedure.

Written procedure


Statement of objections

The Commission adopted, on 23 November 2009, a bundle of six statements of objections (SO), which were individually notified to each party to the proceedings. According to the SO the undertakings Ercros, FMC Foret, Kemira, Tessenderlo, Quimitecnica and Timab/CFPR had from at least 19 March 1969 until at least 10 February 2004 participated, for different periods, in a single and continuous infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement. The geographic scope of the cartel covered, at all times, Austria, Belgium, Denmark, Finland, France, Germany, Hungary, Ireland, the Netherlands, Norway, Sweden and the UK, while Spain and Portugal were covered from respectively 1992 and 1993 onwards (5). As far as Timab/CFPR was concerned the alleged infringement lasted from 16 September 1993 until 10 February 2004. The infringement consisted of sharing a large part of the EU market by allocating sales quotas and customers, of coordinating prices and sales conditions. In the SO the Commission announced its intention to adopt an infringement decision and to impose fines (6).

Access to file

Before the notification of the SO the settling groups of undertakings had already during the settlement discussions been informed orally about the envisaged objections and given access to evidence in the Commission's file. In their settlement submissions, these groups confirmed that they had been given sufficient opportunity to make their views known and that no further access would be required, subject to the condition that the SO would reflect their settlement submissions.
After receiving the SO the settling parties confirmed, in unequivocal terms, that the SO corresponds to the content of their settlement submissions and that they remain committed to the settlement procedure.
Following receipt of the SO Timab/CFPR received full access to the Commission's investigation file by way of a DVD and through access at the Commission premises to corporate statements as well as a non-confidential version of the other parties’ settlement submissions. In addition, Timab/CFPR was, upon request, subsequently granted additional access to the settling parties’ acknowledgments of the SO at the Commission's premises.

Time periods for responses

After receiving the SO the settling parties were granted a time period of two weeks to respond in accordance with point 26 of the Settlement Notice. Upon request one of the settling parties, Ercros, was granted an extension by two days to submit its response.
Timab/CFPR was originally afforded a time period of four weeks to respond to the SO. Upon request the deadline was extended by five additional weeks.

Oral procedure


Oral hearing

An oral hearing was held on 24 February 2010 on the request of Timab/CFPR.
Notwithstanding the fact that the settling parties had renounced their right to request an oral hearing, the Hearing Officer responsible for the case at the time decided, as a matter of transparency and fairness, to invite them to the hearing, as undertakings concerned by the proceedings. All groups of undertakings, except Tessenderlo, accepted the invitation and attended the Hearing.

The draft decision

In respect of the settling parties the draft decision retains the objections raised in the statement of objections and reflects also the parties’ respective settlement submissions. Accordingly, the draft decision relates only to objections in respect of which the settling parties have been afforded the opportunity to make known their views. In this regard I have also taken note of the fact that the settling parties’ have unequivocally confirmed in their settlement submissions that they have been given sufficient opportunity to make their views known and have not raised any procedural issues before the Hearing Officer.
Also with regard to Timab/CFPR the draft decision retains the objections put forward in the statement of objections. However, in view of the Timab/CFPR's written and oral submissions, the duration of the infringement has been significantly reduced, from approximately 25 years to less than 11 years.
I consider that the right to be heard of all participants to the proceedings has been respected in this case.

Brussels, 14 July 2010.

Michael ALBERS




(1)  Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings (OJ L 162, 19.6.2001, p. 21).

(2)  Ercros (Ercros S.A., Ercros Industrial S.A.), FMC Foret (FMC Foret S.A., FMC Chemicals Netherlands B.V., FMC Corporation), Kemira, (Kemira Oyj, Yara Phosphates Oy, Yara Soumi Oy), Tessenderlo Chemie N.V., Quimitécnica (Quimitécnica.com — Cemércio e Industria Quimica S.A., José de Mello SGPS S.A.) and Timab (Timab Industries S.A., Compagnie Financière et de Participation Roullier).

(3)  Commission Regulation (EC) No 622/2008 amending Regulation (EC) No 773/2004 as regards the conduct of settlement procedures in cartel cases (OJ L 171, 1.7.2008, p. 3), and Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ C 167, 2.7.2008, p. 1).

(4)  Article 10(a)(1) of Regulation (EC) No 773/2004 (OJ L 123, 27.4.2004, p. 18).

(5)  For the purposes of application of Article 101 of the TFEU and/or Article 53 of the EEA Treaty jurisdiction of the European Commission for Austria, Finland, Norway and Sweden exists as of 1 January 1994 onwards.

(6)  Articles 7 and 23 of Council Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4.1.2003, p. 1.