Summary of Commission Decision of 2 April 2014 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 AT.39610 — Power Cables) (notified under document C(2014) 2139 final)
Date: 2014-04-02
Institutions: European Commission
Subjects: cartel, electric cable, fine, infringement of EU law, inter-company agreement, market-sharing agreement, price agreement








C_2014319EN.01001001.xml










17.9.2014   


EN


Official Journal of the European Union


C 319/10





Summary of Commission Decision
of 2 April 2014
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 AT.39610 — Power Cables)
(notified under document C(2014) 2139 final)
(Only the English, French, German and Italian texts are authentic)
2014/C 319/06

On 2 April 2014, the Commission adopted a decision relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement. 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)


On 2 April 2014, the European Commission adopted a decision against 26 legal entities for infringing Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (the ‘Decision’). The decision concerns a cartel in the power cables sector in which the main producers of underground and submarine power cables shared markets and allocated customers between themselves on an almost worldwide scale.




2.   CASE DESCRIPTION

2.1.   The products concerned







(2)


The cartel arrangements covered all types of underground power cables of 110 kV and above and submarine power cables of 33 kV and above including all products, works and services sold to the customer related to a sale of power cables when such sales are part of a power cable project.




2.2.   Procedure







(3)


Following the immunity application of ABB under the 2006 Leniency Notice, the Commission carried out inspections in January 2009. Subsequently, the Commission received leniency applications from Sumitomo, Hitachi and JPS and from Mitsubishi.










(4)


On 30 June 2011, the Commission adopted a statement of objections. All addressees submitted a reply to the statement of objections and, except for Furukawa, all addressees participated in an oral hearing that lasted from 11 to 18 June 2012. On 11 September 2013, the Commission sent Letters of Facts to Fujikura, Furukawa, Goldman Sachs, Mitsubishi and Showa with regard to information received after the statement of objections.










(5)


The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 17 March 2014 and 31 March 2014.




2.3.   Summary of the infringement







(6)


The main producers participated in a network of multilateral and bilateral meetings and contacts aimed at restricting competition for underground and submarine power cable projects in specific territories by agreeing on market and customer allocation and thereby to distort the normal competitive process.










(7)


From February 1999 onwards, the main producers allocated projects according to the geographic region or customer. In addition, they exchanged information on prices and other commercially sensitive information in order to ensure that the designated power cable supplier or ‘allottee’ would make the lowest price while the other companies would either submit a higher offer or refrain from bidding or submit an offer that was unattractive to the customer. Reporting obligations were established to allow monitoring of the agreed allocations. Finally, additional practices were implemented to reinforce the cartel such as the collective refusal to supply accessories or technical assistance to certain competitors in order to ensure the agreed allocations.










(8)


The cartel had two main configurations:






(a)


On the one hand, it had as its objective the allocation of territories and customers. This configuration is referred to as the ‘A/R cartel configuration’. Pursuant to this configuration Japanese and Korean producers refrained from competing for projects in the European home territory while European producers would stay out of Japan and Korea. They also allocated projects in most of the rest of the world and made use of a quota arrangement for a certain period of time.










(b)


On the other hand, the ‘European cartel configuration’ involved the allocation of territories and customers by the European producers for projects inside the European home territory or allocated to the European producers.














(9)


To ensure the implementation of the cartel arrangements, the main producers held periodical meetings and had contacts by e-mail, telephone or fax




2.4.   Addressees and duration of the infringement







(10)


The following legal entities are held liable, for the periods indicated, for a single and continuous infringement of Article 101 of the Treaty and Article 53 of the EEA Agreement in the high voltage power cables sector:
(a)   ABB AB: 1 April 2000 to 17 October 2008
(b)   ABB Ltd (as parent of ABB AB): 1 April 2000 to 17 October 2008
(c)   Brugg Kabel AG: 14 December 2001 to 16 November 2006
(d)   Kabelwerke Brugg AG Holding (as parent of Brugg Kabel AG): 14 December 2001 to 16 November 2006
(e)   Nexans France SAS: 13 November 2000 to 28 January 2009
(f)   Nexans SA (as parent of Nexans France SAS): 12 June 2001 to 28 January 2009
(g)   nkt cables GmbH: 3 July 2002 to 17 February 2006
(h)   NKT Holding A/S (as parent of nkt cables GmbH): 3 July 2002 to 17 February 2006
(i)   Prysmian Cavi e Sistemi S.r.l.: 18 February 1999 to 28 January 2009
(j)   Pirelli & C. S.p.A. (as parent of Prysmian Cavi e Sistemi S.r.l.): 18 February 1999 to 28 July 2005
(k)   Prysmian S.p.A. (as parent of Prysmian Cavi e Sistemi S.r.l.): 29 July 2005 to 28 January 2009
(l)   The Goldman Sachs Group, Inc. (as parent of Prysmian S.p.A): 29 July 2005 to 28 January 2009
(m)   Safran SA (previously Sagem SA): 12 November 2001 to 29 November 2005
(n)   Silec Cable, SAS: 30 November 2005 to 16 November 2006
(o)   Safran SA (as parent of Silec Cable, SAS): 30 November 2005 to 21 December 2005
(p)   General Cable Corporation (as parent of Silec Cable, SAS): 22 December 2005 to 16 November 2006
(q)   Sumitomo Electric Industries, Ltd: 18 February 1999 to 30 September 2001 and 1 October 2001 to 10 April 2008 (joint venture period)
(r)   Hitachi Metals, Ltd: 18 February 1999 to 30 September 2001 and 1 October 2001 to 10 April 2008 (joint venture period)
(s)   J-Power Systems Corporation: 1 October 2001 to 10 April 2008
(t)   Furukawa Electric Co. Ltd: 18 February 1999 to 30 September 2001 and 1 October 2001 to 28 January 2009 (joint venture period)
(u)   Fujikura Ltd: 18 February 1999 to 30 September 2001 and 1 October 2001 to 28 January 2009 (joint venture period)
(v)   VISCAS Corporation: 1 October 2001 to 28 January 2009
(w)   SWCC SHOWA HOLDINGS CO., LTD.: 5 September 2001 to 30 June 2002 (for this period, SWCC SHOWA HOLDINGS CO., LTD is not liable for the European configuration) and 1 July 2002 to 28 January 2009 (joint venture period).
(x)   Mitsubishi Cable Industries, Ltd: 5 September 2001 to 30 June 2002 (for this period, Mitsubishi Cable Industries, Ltd is not liable for the European configuration) and 1 July 2002 to 28 January 2009 (joint venture period)
(y)   EXSYM Corporation: 1 July 2002 to 28 January 2009
(z)   LS Cable & System Ltd: 15 November 2002 to 26 August 2005. LS Cable & System Ltd is not liable for the infringement as far as (extra) high voltage submarine cables are concerned.
(aa)   Taihan Electric Wire Co., Ltd: 15 November 2002 to 26 August 2005. Taihan Electric Wire Co., Ltd is not liable for the infringement as far as (extra) high voltage submarine cables are concerned




2.5.   Remedies







(11)


The decision applies the 2006 Guidelines on fines (2) and the 2006 Leniency Notice (3).




2.5.1.   Basic amount of the fine







(12)


For a number of reasons explained in the Decision, the sales figures for the year 2004 were used in order to establish the relevant value of sales of the products described in Section 2.1 above.










(13)


As the sales of some undertakings in the EEA did not adequately reflect their weight in the infringement, the Commission applied point 18 of the Guidelines on fines and allocated the aggregated sales in the EEA related to the infringement to each undertaking in accordance with their respective shares of the sales to which the infringement relates at worldwide level, excluding the sales in the United States. The sales in the United States were excluded since this is the only territory for which the Commission possessed clear evidence that it was not covered by the almost worldwide cartel pursued in the Decision.










(14)


The joint venture parent companies were held liable for their direct participation in the cartel prior to the formation of the joint ventures and for their continued involvement through their respective joint ventures after their formations. In order to reflect each joint venture parent company’s economic strength and weight in the infringement during the period prior to the formation of the joint ventures, the sales determined for the joint venture were shared amongst the parent companies proportionally to the individual sales achieved by each parent company in the full business year prior to the formation of their joint venture.










(15)


Considering the nature of the infringements, their geographical scope and the combined market share of the producers the percentage for the variable amount of the fine and the additional amount (‘entry fee’) was set at 17 % of the values of sales of Sumitomo, Hitachi, JPS, Furukawa, Fujikura, VISCAS, Showa, Mitsubishi, EXSYM, LS Cable, Taihan and the companies held jointly and severally liable with either of them. This percentage was set at 19 % for Nexans, Prysmian, ABB, Brugg, Sagem/Silec, nkt and the companies held jointly and severally liable with them.










(16)


For each undertaking, the basis amount was multiplied by the number of years of participation in the infringement, rounded down monthly, which lead to the following multipliers for duration of participation:

ABB AB, ABB Ltd— 8,5
Brugg Kabel AG, Kabelwerke Brugg AG Holding— 4,91
Nexans France SAS— 8,16
Nexans SA— 7,58
nkt cables GmbH, NKT Holding A/S— 3,58
Prysmian Cavi e Sistemi S.r.l.— 9,91
Pirelli & C. S.p.A.— 6,41
Prysmian S.p.A.— 3,5
The Goldman Sachs Group, Inc.— 3,5
Safran SA— 4

Silec Cable, SAS— 0,91
Safran SA (parent)— 0,057
General Cable Corporation— 0,853
Sumitomo Electric Industries, Ltd, for the period prior to the joint venture— 2,58
Hitachi Metals, Ltd, for the period prior to the joint venture— 2,58
J-Power Systems Corporation, Sumitomo Electric Industries, Ltd, Hitachi Cable Ltd— 6,5
Furukawa Electric Co. Ltd, for the period prior to the joint venture— 2,58
Fujikura Ltd, for the period prior to the joint venture— 2,58
VISCAS Corporation, Furukawa Electric Co. Ltd, Fujikura Ltd— 7,25
SWCC SHOWA HOLDINGS CO., LTD., for the period prior to the joint venture— 0,75
Mitsubishi Cable Industries, Ltd, for the period prior to the joint venture— 0,75
EXSYM Corporation, SWCC SHOWA HOLDINGS CO., LTD., Mitsubishi Cable Industries, Ltd— 6,5
LS Cable & System Ltd— 2,75
Taihan Electric Wire Co., Ltd— 2,75



2.5.2.   Adjustments to the basic amount







(17)


On 24 January 2007, ABB Ltd was held liable for an infringement of Article 101 of the Treaty in the Commission Decision in the case COMP/F/38.899 — Gas Insulated Switchgear. Consequently, the basic amount of the fines for ABB and ABB Ltd was increased by a factor of 50 %.










(18)


Nexans, Pirelli/Prysmian, JPS, Sumitomo, Hitachi, Furukawa, Fujikura and VISCAS were considered to be the core group of participants of the cartel No mitigating factors are found for these addressees.










(19)


As the evidence shows that ABB, EXSYM, Sagem/Safran/Silec and Brugg had a level of involvement that distinguished them from the core group they were granted a reduction of 5 % of the fine on account of their substantially limited involvement in the infringement.










(20)


As the evidence shows that Mitsubishi and Showa (prior to the formation of EXSYM), LS Cable, Taihan and nkt had a level of involvement that qualified them as fringe players they were granted a reduction of 10 % of the fine on account of their substantially limited involvement in the infringement.










(21)


In addition, Mitsubishi and Showa, for the period before the formation of EXSYM, LS Cable and Taihan were granted an additional 1 % reduction for their lack of awareness of and liability for parts of the single and continuous infringement.










(22)


Mitsubishi was granted a reduction of 3 % of the fine set for the period of its own participation in the infringement on account of effective cooperation outside the scope of the Leniency Notice.




2.5.3.   Application of the 10 % turnover limit







(23)


The final individual amounts of the fines (prior to the application of the 2006 Leniency Notice) are below 10 % of the worldwide turnovers for all undertakings.




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







(24)


ABB was the first undertaking to submit information and evidence meeting the conditions of point 8(a) of the 2006 Leniency Notice. The fine to be imposed was reduced by 100 %.










(25)


The Commission was able to establish additional facts proving the existence of the cartel from 18 February 1999 to 1 March 2001 solely on the basis of evidence provided by JPS, Sumitomo and Hitachi. As a result, in line with point 26 of the Leniency Notice, this period was not taken into account for JPS, Sumitomo and Hitachi for the purpose of determining the fine.










(26)


For the remainder of their participation in the cartel JPS, Sumitomo and Hitachi were granted a 45 % reduction of the fines.










(27)


The Commission concluded that Mitsubishi did not qualify for a reduction of fines.




2.5.5.   Inability to pay







(28)


One undertaking invoked its inability to pay under point 35 of the 2006 Fines Guidelines. The Commission considered this claim and carefully analysed the financial situation of the undertaking and the specific social and economic context. As a result of the analysis, the Commission rejected the claim.




3.   FINES IMPOSED BY THE DECISION







(29)


For the single and continuous infringement in relation to the power cables sector, the following fines were imposed:

ABB AB and ABB Ltd jointly and severally liable: EUR 0

Brugg Kabel AG and Kabelwerke Brugg AG Holding jointly and severally liable: EUR 8 490 000

Nexans France SAS and Nexans SA jointly and severally liable: EUR 65 767 000

Nexans France SAS: EUR 4 903 000

nkt cables GmbH and NKT Holding A/S jointly and severally liable: EUR 3 887 000

Prysmian Cavi e Sistemi S.r.l, Prysmian S.p.A. and The Goldman Sachs Group, Inc., jointly and severally liable: EUR 37 303 000

Prysmian Cavi e Sistemi S.r.l. and Pirelli & C. S.p.A. jointly and severally liable: EUR 67 310 000

Safran SA: EUR 8 567 000

Silec Cable, SAS and General Cable Corporation jointly and severally liable: EUR 1 852 500

Silec Cable, SAS and Safran SA, jointly and severally liable: EUR 123 500

Sumitomo Electric Industries, Ltd: EUR 2 630 000

Hitachi Metals, Ltd: EUR 2 346 000

J-Power Systems Corporation, Sumitomo Electric Industries, Ltd and Hitachi Metals, Ltd jointly and severally liable: EUR 20 741 000

Furukawa Electric Co. Ltd: EUR 8 858 000

Fujikura Ltd: EUR 8 152 000

VISCAS Corporation, Furukawa Electric Co. Ltd and Fujikura Ltd jointly and severally liable: EUR 34 992 000

SWCC SHOWA HOLDINGS CO., LTD.: EUR 844 000.

Mitsubishi Cable Industries, Ltd: EUR 750 000.

EXSYM Corporation, SWCC SHOWA HOLDINGS CO., LTD. and Mitsubishi Cable Industries, Ltd jointly and severally liable: EUR 6 551 000

LS Cable & System Ltd: EUR 11 349 000.

Taihan Electric Wire Co., Ltd: EUR 6 223 000.






(1)  OJ L 1, 4.1.2003, p. 1.

(2)  OJ C 210, 1.9.2006, p. 2.

(3)  OJ C 298, 8.12.2006, p. 17.