Summary of Commission Decision of 29 January 2014 (Case AT.39801 — Polyurethane foam) (notified under document C(2014) 238 final)
Date: 2014-01-29
Institutions: European Commission
Subjects: cartel, fine, inflammable product, infringement of EU law, plastics, price agreement








C_2014354EN.01000601.xml










8.10.2014   


EN


Official Journal of the European Union


C 354/6





Summary of Commission Decision
of 29 January 2014
(Case AT.39801 — Polyurethane foam)
(notified under document C(2014) 238 final)
(Only the English text is authentic)
(2014/C 354/07)

On 29 January 2014, the Commission adopted a decision relating to a proceeding under Article 101 of the Treat 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 relates to a single and continuous infringement of Article 101 of the Treaty in the sector of flexible polyurethane foam. Flexible polyurethane foam can be sub-divided according to two types of applications: comfort foam applications (foam used for example in upholstered furniture, beds, mattresses, pillows and mats) and technical foam applications (foam used for example in the automotive, aviation and medical product industries). The anticompetitive conduct identified in this case covers, on the one hand, polyurethane comfort foam and, on the other hand, basic polyurethane technical foam supplied in the form of rolls and blocks. The Decision is addressed to thirty entities of the four undertakings: (i) Carpenter (2); (ii) Vita (3); (iii) Recticel (4) and (iv) Greiner (5) as well as (v) Eurofoam (6), a 50/50 joint venture of Recticel and Greiner.




2.   CASE DESCRIPTION

2.1.   Procedure









(2)


The case was opened on the basis of an immunity application of Vita on 30 April 2010.












(3)


Following the information provided, between 27 and 31 July 2010, the Commission carried out unannounced inspections at the premises of Eurofoam, Recticel, Carpenter and another undertaking. A further unannounced inspection was carried out in April 2011.












(4)


On 1 August 2010, following the inspections, the Commission received a joint leniency application from Recticel, Greiner and Eurofoam.












(5)


During the investigation, the Commission also sent several requests for information under Article 18 of Regulation (EC) No 1/2003.












(6)


On 15 November 2012, the Commission initiated proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003 against the addressees of the Decision with a view to engage in settlement discussions with them. Settlement meetings took place between […] and […]. Between […] and […], the parties submitted to the Commission their formal request to settle pursuant to Article 10a(2) of Regulation (EC) No 773/2004 (7).
On 23 October 2013 the Commission adopted a Statement of Objections and all the parties confirmed that it reflected the contents of their submissions and that they therefore remained committed to following the settlement procedure. The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 17 January 2014 and the Commission adopted the Decision on 29 January 2014.




2.2.   Addressees and duration









(7)


Twenty-eight of the addressees of the Decision have participated in a cartel, infringing therefore Article 101 of the Treaty, during the periods indicated below:






Entity


Duration




Carpenter S.A.S.
Carpenter GmbH
Carpenter Limited
Carpenter Belgium NV


26 October 2005-27 July 2010




Vita Cayman Limited
Caligen Europe BV
Draka Interfoam B.V.
ICOA France S.A.S.
Koepp Schaum GmbH
Metzeler Schaum GmbH
Tramico S.A.S.
Vita Polymers Poland Sp. z o.o.
Veenendaal Schaumstoffwerk GmbH
Vita Cellular Foams (UK) Limited
Vita Industrial (UK) Limited


26 October 2005-30 April 2010
(with the exception of sales from these entities to Romania, for which the duration is 1 January 2007-30 April 2010)




Vita Baltic International


9 July 2007-30 April 2010




Eurofoam GmbH
Eurofoam Deutschland GmbH Schaumstoffe
Eurofoam KFM GmbH
Eurofoam Hungary Kft
Eurofoam Polska Sp. z o.o.
S.C. Eurofoam S.r.l.


26 October 2005-27 July 2010
(with the exception of sales from these entities to Romania, for which the duration is 1 January 2007-27 July 2010)




Recticel N.V./S.A.
Recticel s.a.s.
Recticel Limited
Recticel Verwaltung GmbH & Co. KG
Recticel B.V.


26 October 2005-27 July 2010




Recticel OÜ


9 July 2007-27 July 2010
















(8)


In addition, Carpenter Co. is jointly and severally liable as parent company for the participation of its subsidiary entities from 26 October 2005 to 27 July 2010, with the exception of Carpenter Belgium NV, for which Carpenter Co. is jointly and severally liable from 9 July 2007 to 27 July 2010.












(9)


Furthermore, Greiner Holding AG is jointly and severally liable as joint parent for the participation of the Eurofoam entities from 26 October 2005 to 27 July 2010.




2.3.   Summary of the infringement









(10)


The Decision concerns a cartel, the ultimate aim of which was to pass on raw material price increases to their customers and to avoid aggressive price competition between them with regard to customers. In order to achieve this aim, an overall European-wide understanding was in place between the cartel participants. In the framework of this overall understanding, the cartel participants engaged in anticompetitive behaviour at various management levels leading to price coordination in a total of 10 Member States.












(11)


In order to achieve the overall aim of passing on raw material price increases to customers and avoiding aggressive price competition, the cartel participants engaged in anticompetitive practices in direct and indirect price coordination. These covered in particular:






(a)


the coordination of:






—


the timing and the magnitude of target price increases, and










—


the prices to be charged to certain specific customers; and














(b)


at times refraining from poaching each other’s customers during periods of price increases.
















(12)


Within this overall European framework, price increases were discussed mainly in the margins of the meetings of their European Trade Association both between senior European managers as well as between regional and national managers.
The overall geographic scope of the infringement concerned 10 EU Member States, which are France, Belgium, the Netherlands, the UK, Germany, Austria, Hungary, Romania, Poland and Estonia. While each of the undertakings was involved in the cartel contacts at European level, they did not all have an individual presence in all 10 affected Member States.




2.4.   Remedies









(13)


The Decision applies the 2006 Guidelines on Fines (8). With the exception of Vita, the Decision imposes fines on all the entities of the companies listed under points (8) to (10) above.




2.4.1.   Basic amount of the fine









(14)


In setting the fines, the Commission took into account the sales of the participating entities in the markets concerned in the last year prior to the end of the cartel, the fact that price coordination arrangements are amongst the most harmful restrictions of competition, the duration of the cartel and an additional amount to deter undertakings from entering into price coordination practices.




2.4.2.   Adjustments to the basic amount









(15)


The Commission did not apply any aggravating or mitigating circumstances in this case.




2.4.3.   Application of the 10 % turnover limit









(16)


Where the fine would have exceeded the legal maximum of 10 % the total turnover of the undertaking in the latest year for which figures were available, it was reduced to this level.












(17)


Furthermore, the Commission exercise its margin of appreciation, as reflected in point 37 of the Guidelines on fines, to reduce the level of that part of the fine for which one of the Carpenter entities was solely liable to 10 % of its own turnover.












(18)


As regards the impact of the 10 % turnover limit on Eurofoam and its joint parents Greiner and Recticel, as well as the separate fine for the participation of Recticel, the Commission used its discretion to limit their maximum fines to the level of 10 % of their respective total turnovers in the latest year for which figures were available.




2.4.4.   Application of the 2006 Leniency Notice: reduction of fines









(19)


The Commission granted full immunity from the fine to Vita and a 50 % reduction of the fine for cooperation to Recticel, Greiner and Eurofoam.




2.4.5.   Application of the Settlement Notice









(20)


As a result of the application of the Settlement Notice, the amount of the fine to be imposed on Carpenter, Recticel, Greiner and Eurofoam was reduced by 10 %. This reduction was in addition to the leniency reduction granted to Recticel, Greiner and Eurofoam.




3.   CONCLUSION









(21)


The following fines were imposed pursuant to Article 23(2) of Regulation (EC) No 1/2003:






(a)


Vita Cayman Limited, Caligen Europe BV, Draka Interfoam B.V., ICOA France S.A.S., Koepp Schaum GmbH, Metzeler Schaum GmbH, Tramico S.A.S., Vita Polymers Poland Sp. z o.o., Veenendaal Schaumstoffwerk GmbH, Vita Cellular Foams (UK) Limited, Vita Industrial (UK) Limited and UAB Vita Baltic International jointly and severally liable for EUR 0;










(b)


Carpenter Co., Carpenter S.A.S., Carpenter GmbH, Carpenter Belgium NV and Carpenter Limited jointly and severally liable for EUR 71 800 000;










(c)


Carpenter Belgium NV liable for EUR 3 209 000;










(d)


Eurofoam GmbH, Eurofoam Deutschland GmbH Schaumstoffe, Eurofoam KFM GmbH, Eurofoam Hungary Kft, Eurofoam Polska Sp. z o.o. and S.C. Eurofoam S.r.l. jointly and severally liable with Recticel N.V./S.A., Recticel Verwaltung GmbH & Co. KG and Greiner Holding AG for EUR 14 819 000;










(e)


Recticel N.V./S.A., Recticel Verwaltung GmbH & Co. KG and Greiner Holding AG jointly and severally liable for EUR 9 364 000;










(f)


Recticel N.V./S.A. and Recticel Verwaltung GmbH & Co. KG jointly and severally liable for EUR 7 443 000;










(g)


Recticel N.V./S.A., Recticel s.a.s., Recticel Limited and Recticel B.V. jointly and severally liable for EUR 7 116 000;










(h)


Recticel N.V./S.A. and Recticel OÜ jointly and severally liable for EUR 326 000.










(1)  OJ L 1, 4.1.2003, p. 1.

(2)  Carpenter Co. and relevant subsidiaries.

(3)  Vita Cayman Limited and relevant subsidiaries.

(4)  Recticel N.V./S.A. and relevant subsidiaries.

(5)  Greiner Holding AG.

(6)  Eurofoam GmbH and associated Eurofoam entities.

(7)  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).

(8)  OJ C 210, 1.9.2006, p. 2.