Summary of Commission Decision of 13 April 2011 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case COMP/39.579 — Consumer detergents) (notified under document C(2011) 2528 final)  Text with EEA relevance
Date: 2011-04-13
Institutions: European Commission
Subjects: dominant position, fine, restriction on competition








C_2011193EN.01001401.xml










2.7.2011   


EN


Official Journal of the European Union


C 193/14





Summary of Commission Decision
of 13 April 2011
relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement
(Case COMP/39.579 — Consumer detergents)
(notified under document C(2011) 2528 final)
(Only the English text is authentic)
(Text with EEA relevance)
2011/C 193/06

On 13 April 2011, the Commission adopted a decision relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union. 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.

1.   INTRODUCTION







(1)


The Decision is addressed to five companies and relates to a single and continuous infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement.




2.   CASE DESCRIPTION

2.1.   Procedure







(2)


This case was triggered by an immunity application submitted on 13 May 2008 by Henkel. In June 2008 the Commission carried out unannounced inspections and P&G applied for leniency on 8 September 2008. On 2 October 2009, Unilever applied for leniency. The first request for information was sent in 2008 and a series of requests for information were sent at later stages.










(3)


In this case the settlement procedure (2) was applied. Settlement discussions took place as from June 2010 after the companies indicated that they were prepared to engage in such discussions. Subsequently, in January 2011, they all introduced formal settlement submissions in which they clearly and unequivocally acknowledged their respective liability for the infringement. Subsequently, a statement of objections reflecting the parties′ submissions was notified to them and the parties all confirmed that its content reflected their submissions and they remained interested in the settlement procedure. The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 11 April 2011 and the Commission adopted the Decision on 13 April 2011.




2.2.   Summary of the infringement







(4)


The present Decision concerns a single and continuous infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement. The single and continuous infringement, in which the addressees of this Decision participated, concerns heavy duty laundry detergent powders intended for machine washing and sold to consumers (‘HDD low suds powder’) and covered Belgium, France, Germany, Greece, Italy, Portugal, Spain and The Netherlands. It was aimed at the stabilisation of market positions and price coordination and was therefore found to have the object of restricting competition.










(5)


The infringement is connected to the implementation of an environmental initiative as a result of which dosage and weight reductions of HDD low suds powder and corresponding packaging material were implemented (the AISE initiative). Although this initiative neither foresaw nor necessitated price discussions, the industry agreements and the discussions on the occasion of the initiative led to anticompetitive conduct among Henkel, P&G and Unilever.










(6)


Henkel, P&G and Unilever sought to achieve market stabilisation by ensuring that none of them would use the environmental initiative to gain competitive advantage over the others and that market positions would remain at the same level as prior to actions taken within the environmental initiative (in particular the compaction of products).










(7)


As regards prices, Henkel, P&G and Unilever engaged in the following anticompetitive practices:






—


first, they agreed on indirect price increases. In practice, the parties agreed to keep the price unchanged during the implementation of the different phases of the environmental initiative. In particular, the parties agreed not to decrease prices when products were ‘compacted’ (that is to say when the weight of the products was reduced), when the product quantity was downsized (that is to say when the product volume was reduced) or on some occasions when they collectively reduced the number of scoops (that is to say wash loads) per package,










—


second, they agreed to restrict their promotional activity, which is also considered as a form of price collusion. In particular, the parties agreed on excluding specific types of promotions during the implementation of the different phases of the environmental initiative,










—


third, the parties agreed on a direct price increase towards the end of 2004, which was targeted at specific markets, to be implemented in the order of market leadership, that is the market leader would implement first while the others would follow,










—


in addition, the parties exchanged sensitive information on prices and trading conditions, thereby facilitating the various forms of price collusion.








2.3.   Addressees and duration in the infringements







(8)


The following undertakings are held liable for an infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement from 7 January 2002 until 8 March 2005:






(a)


Henkel AG & Co. KGaA (3),










(b)


The Procter & Gamble Company (4),










(c)


Procter & Gamble International Sàrl (5),










(d)


Unilever PLC (6) and










(e)


Unilever NV (7).








2.4.   Remedies







(9)


In setting the fines, the Commission refers to the principles laid down in its 2006 Guidelines on Fines (8). It also applies the provisions of the 2006 Leniency Notice (9) and the Settlement Notice (10).




2.4.1.   Basic amount of the fine







(10)


The basic amounts of the fine for each party result from the addition of a variable amount and an additional amount. The variable amount results from a percentage of up to 30 % of the value of the undertaking's relevant sales, depending on the degree of gravity of the infringement and multiplied by the number of years of the undertaking's participation in the infringement. The additional amount is calculated as a percentage between 15 % and 25 % of the value of the undertaking's relevant sales, irrespective of duration.










(11)


The variable amount of the fine is set at 16 % of the value of the undertakings′ relevant sales. The relevant value of sales is the undertaking's retail sales of HDD low suds powder generated in the eight Member States covered by the infringement: Belgium, France, Germany, Greece, Italy, Portugal, Spain and The Netherlands. This amount is multiplied by the number of years of the duration of the infringement. The percentage to be applied for the purposes of calculating the additional amount is also set at 16 %.




2.4.2.   Adjustments to the basic amount

2.4.2.1.   Aggravating circumstances







(12)


There are no aggravating circumstances in this case.




2.4.2.2.   Mitigating circumstances







(13)


There are no mitigating circumstances in this case.




2.4.2.3.   Specific increase for deterrence







(14)


In accordance with point 30 of the 2006 Guidelines on Fines, a specific increase of the basic amount of the fines is applied for one of the undertakings, based on the size of the undertaking concerned.




2.4.3.   Application of the 10 % of turnover limit







(15)


Article 23(2) of Regulation (EC) No 1/2003 provides that the fine imposed on each undertaking must not exceed 10 % of its total turnover relating to the business year preceding the date of the Commission decision. It is not required to adjust the amounts in the light of the undertakings' turnover in this case.




2.4.4.   Application of the 2006 Leniency Notice







(16)


Henkel submitted an immunity application on 13 May 2008 under the Leniency Notice. Henkel was the first undertaking to inform the Commission about the present cartel concerning HDD low suds powder and it was granted conditional immunity from fines. Henkel's cooperation fulfilled the requirements in the Leniency Notice. Henkel is therefore granted immunity from fines in this case.










(17)


Considering both the quality of its leniency application and its timely cooperation from the beginning of the investigation, P&G is granted the maximum reduction foreseen for the first undertaking to provide significant added value, that is a reduction of 50 %. Considering the quality and the timing of its application, a reduction of 25 % is granted to Unilever.




2.4.5.   Application of the Settlement Notice







(18)


According to point 32 of the Settlement Notice, the reward for settlement results in the reduction by 10 % of the amount of the fine to be imposed after the 10 % cap has been applied having regard to the Guidelines on Fines. When settled cases involve also leniency applicants, the reduction of the fine granted to them for settlement is being added to their leniency reward pursuant to point 33 of the Settlement Notice. Consequently, the amount of the fine to be imposed is reduced by 10 %.




3.   FINES IMPOSED BY THE DECISION







(19)


For the single and continuous infringement dealt with in this Decision, the following fines are imposed:






(a)


on Henkel AG & Co. KGaA: EUR 0;










(b)


on the Procter & Gamble Company and Procter & Gamble International Sàrl jointly and severally: EUR 211 200 000;










(c)


on Unilever PLC and Unilever NV jointly and severally: EUR 104 000 000.










(1)  OJ L 1, 4.1.2003, p. 1.

(2)  Commission Regulation (EC) No 622/2008 of 30 June 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).

(3)  Liability is imputed to Henkel AG & Co. KGaA for its own behaviour and the conduct of its relevant subsidiaries.

(4)  Liability is imputed jointly and severally to The Procter & Gamble Company and Procter & Gamble International Sàrl for the conduct of their relevant subsidiaries.

(5)  See footnote 4.

(6)  Liability is imputed jointly and severally to Unilever PLC and Unilever NV for their own behaviour and for the conduct of their relevant subsidiaries.

(7)  See footnote 6.

(8)  OJ C 210, 1.9.2006, p. 2.

(9)  OJ C 298, 8.12.2006, p. 17.

(10)  See footnote 2.