Final Report of the Hearing Officer – Case AT.40636 – SNBB
Date: 2023-10-16
Institutions: Directorate-General for Competition, European Commission
Subjects: EU competition policy, European Economic Area, control of restrictive practices, pharmaceutical industry, price agreement, sanction (EU), vertical agreement








C_202406970EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/6970


18.11.2024






Final Report of the Hearing Officer (1)

Case AT.40636 – SNBB
(Text with EEA relevance)
(C/2024/6970)


(1)   

The present report concerns a draft cartel settlement decision to be adopted in accordance with the procedure foreseen in Article 10a of Regulation (EC) No 773/2004 (2) (the ‘Draft Decision’).



(2)   

The Draft Decision is addressed to 11 legal entities (the ‘Addressees of the Draft Decision’), each belonging to one of six undertakings: Alkaloids of Australia, Alkaloids Corporation, Boehringer, C2 PHARMA, Linnea and Transo-Pharm (the ‘Settling Undertakings’) (3).



(3)   

According to the Draft Decision, the Settling Undertakings participated in a single and continuous infringement consisting of bilateral and multilateral contacts regarding sales prices and the allocation of quotas on the worldwide merchant market for N-Butylbromide Scopolamine/Hyoscine (‘SNBB’) (4). The alleged infringement lasted from 1 November 2005 to 17 September 2019.



(4)   

The case stems from an application for immunity from fines. Following inspections carried out in September 2019, the Commission received two leniency applications.



(5)   

On 20 October 2021, the Commission initiated proceedings pursuant to Article 2(1) of Regulation (EC) No 773/2004 against the Addressees of the Draft Decision and one other undertaking. At the time of the present report, proceedings concerning that other undertaking are ongoing under the general (non-settlement) provisions of Regulation (EC) No 773/2004.



(6)   

Following settlement discussions including access to the file, (5) and settlement submissions (6) in accordance with Article 10a(2) of Regulation (EC) No 773/2004, the Commission adopted a statement of objections (the ‘Statement of Objections’) addressed to the Addressees of the Draft Decision on 17 July 2023.



(7)   

One of the Settling Undertakings (i.e., Alkaloids of Australia Pty. Limited) opted voluntarily for limited access to the file and, in particular, to the evidence used to determine the envisaged objections. It explicitly clarified in its settlement submission that it does not envisage requesting further access to documents in the file, despite having requested more limited access to evidence than that offered by the Commission. In light of that clarification, which was suggested by the Hearing Officer in order to confirm the voluntary nature of the limited access and the respect of the right for access to the file of that Settling Undertaking, I conclude that this right has been respected.



(8)   

In their respective replies to the Statement of Objections, the Settling Undertakings confirmed, pursuant to Article 10a(3) of Regulation (EC) No 773/2004, that the Statement of Objections reflected the contents of their settlement submissions and that they therefore remained committed to following the settlement procedure.



(9)   

Pursuant to Article 16 of Decision 2011/695/EU, I have examined whether the Draft Decision deals only with objections in respect of which the Addressees of the Draft Decision have been afforded the opportunity of making known their views. I conclude that it does.



(10)   

In view of the above, and taking into account that the Addressees of the Draft Decision have not addressed any requests or complaints to me pursuant to Article 15(2) of Decision 2011/695/EU, (7) I consider that the effective exercise of the procedural rights of the Addressees of the Draft Decision has been respected.




Brussels, 16 October 2023.

Eric GIPPINI FOURNIER
               





(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 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, 27.04.2004, p. 18) as amended, in particular by Commission Regulation (EC) No 622/2008 of 30 June 2008 (OJ L 171, 1.7.2008, p. 3) (‘Regulation No 773/2004’).

(3)  Grouped by respective Settling Undertaking, the Addressees of the Draft Decision are: (i) Alkaloids of Australia Pty. Limited; (ii) Alkaloids Corporation; (iii) C.H. Boehringer Sohn AG & Co. KG, Boehringer Ingelheim Pharma GmbH & Co. KG and Boehringer Ingelheim GmbH, (iv) C-squared PHARMA S.à r.l.; (v) Linnea SA, Ipsen S.A. and Schwabe Extracta GmbH & Co. KG and (vi) Transo-Pharm Holding-AG and Transo-Pharm Handels-GmbH.

(4)  SNBB is the acronym often used in the industry. The product is also known as Butylscopolamine bromide, Scopolamine butylbromide and Hyoscine butylbromide.

(5)  The settlement meetings took place between December 2021 and May 2023.

(6)  The Settling Undertakings submitted their formal requests to settle between […].

(7)  Under Article 15(2) of Decision 2011/695/EU, parties to the proceedings in cartel cases which engage in settlement discussions pursuant to Article 10a of Regulation (EC) No 773/2004, may call upon the hearing officer at any stage during the settlement procedure in order to ensure the effective exercise of their procedural rights. See also paragraph 18 of Commission Notice 2008/C 167/01 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).


ELI: http://data.europa.eu/eli/C/2024/6970/oj
ISSN 1977-091X (electronic edition)