Final report of the Hearing Officer — COMP/39.600 — Refrigeration compressors
Date: 2012-04-27
Institutions: European Commission
Subjects: competition, dominant position, fine, infringement of EU law, offence, physical process








C_2012122EN.01000401.xml










27.4.2012   


EN


Official Journal of the European Union


C 122/4





Final report of the Hearing Officer (1)

COMP/39.600 — Refrigeration compressors
2012/C 122/03
The draft decision concerns a settlement proceeding regarding a cartel between five producers of household and commercial refrigeration compressors (maximum 1,5 horsepower) that are predominantly used in the domestic refrigeration and freezing segment, but also in the commercial segment. The addressees of the draft decision are Appliances Components Companies SpA and Elettromeccanica SpA (‘ACC’), Danfoss A/S and Danfoss Flensburg GmbH (‘Danfoss’), Whirlpool SA and Embraco Europe S.r.l. (‘Embraco’), Panasonic Corporation (‘Panasonic’) as well as Tecumseh Products Company Inc., Tecumseh do Brasil Ltda. and Tecumseh Europe SA (‘Tecumseh’). The infringement covered the entire EEA and lasted from 13 April 2004 until 9 October 2007.

BACKGROUND

In October 2008, the Commission received an immunity application from Tecumseh, which was granted conditionally on 11 February 2009. In the same month, the Commission carried out unannounced inspections at the premises of Embraco, ACC and Danfoss.
One month later, three undertakings — Panasonic, ACC and Embraco — applied for immunity and alternatively for a reduction of fines under the Leniency Notice (2). Danfoss submitted an application for a reduction of fines in July 2010.
On 13 October 2010, the Commission initiated proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003 (3) with a view to engage in settlement discussions and formally requested the five undertakings concerned to indicate whether they were interested to engage in settlement discussions. Each of the parties declared its willingness to engage in such discussions.

THE SETTLEMENT PROCEDURE

The discussions between each party and the Commission took place between November 2010 and September 2011. During those meetings, the parties were informed of the objections that the Commission envisaged to raise against them as well as of the evidence supporting those objections. In November 2010, the parties had access to the relevant evidence in the Commission premises, including all oral statements. The parties were also given a paper copy of the list of all the documents in the file. Upon motivated request by Danfoss and Embraco, they were granted access to additional documents listed in the case file. Competition DG extended the additional access to the other three parties. The Commission also provided each of the five parties with an estimation of its range of fines likely to be imposed by the Commission. Following access to file, three parties brought forward arguments derived from the accessible file. They were taken into account, where it was considered justified.
In September 2011, all parties submitted to the Commission a formal request to settle pursuant to Article 10a(2) of Regulation (EC) No 773/2004 (4) and acknowledged their respective liability for an infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement. Furthermore, the parties indicated that they would accept the maximum amount of the fine that they were informed of by the Commission. The parties thirdly confirmed (i) that they had been sufficiently informed of the objections and had been given sufficient opportunity to make their views known; (ii) that they did not envisage requesting access to file or to be heard in an oral hearing, subject to the condition that the statement of objections (‘SO’) and the final decision would reflect their settlement submissions; and (iii) that they agreed to receive the SO and the final decision in English.
The SO was adopted on 11 October 2011. All addressees replied that the SO corresponds to the content of their settlement submissions and that they therefore remain committed to following the settlement procedure. The Commission could therefore proceed directly to a decision pursuant to Articles 7 and 13 of Regulation (EC) No 1/2003.

INTERESTED THIRD PERSON

Aktiebolaget Electrolux has been admitted to the proceeding as a third person with sufficient interest pursuant to Article 27(3) of Regulation (EC) No 1/2003. Its initial request lodged in 2010 had to be rejected as inadmissible on three grounds. Since proceedings had not yet been initiated for this cartel case, there was no ‘proceeding’ to which a third person could have been admitted, secondly, an informed judgement on the existence of a sufficient interest for a third person to be admitted to the procedure was not possible and, thirdly, the third person would not yet have been able to exercise its rights pursuant to Article 13 of Regulation (EC) No 773/2004. The second request that was submitted over a year and a half later (i.e. after the proceeding was formally initiated) has been accepted. Subsequently, pursuant to Article 13(1) of Regulation (EC) No 773/2004, the company was informed in writing of the nature and subject matter of the procedure and afforded the opportunity to make known its views in writing.

THE DRAFT DECISION

The draft decision retains the objections raised in the SO. It relates thus only to objections in respect of which the parties have been afforded the opportunity to make known their views.
Taking furthermore into account that the parties have not addressed any issues concerning access to file or their rights of defence to me or to the member of the Hearing Office attending the settlement meetings, I consider that the right to be heard of all participants to the proceedings has been respected in this case.

Brussels, 5 December 2011.

Michael ALBERS




(1)  Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29).

(2)  Commission notice on immunity from fines and reduction of fines in cartel cases (OJ C 298, 8.12.2006, p. 17).

(3)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the EC Treaty (OJ L 1, 4.1.2003, p. 1).

(4)  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18).