Summary of Commission Decision of 23 May 2024 relating to a proceeding under Article 101 and 102 of the Treaty on the Functioning of the European Union (Case AT.40632 – Mondelez trade restrictions) (notified under document number C(2024) 3313 final)
Date: 2024-05-23
Institutions: Directorate-General for Competition, European Commission
Subjects: EU competition policy, confectionery, confectionery product, control of restrictive practices, dominant position, packaged product, restrictive trade practice, sanction (EU)








C_202405548EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/5548


18.9.2024






Summary of Commission Decision
of 23 May 2024
         
relating to a proceeding under Article 101 and 102 of the Treaty on the Functioning of the European Union
(Case AT.40632 – Mondelez trade restrictions)


(notified under document number C(2024) 3313 final)


(Only the English text is authentic)
(C/2024/5548)


On
         23 May 2024
         , the Commission adopted a decision relating to a proceeding under Article 101 and 102 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.


INTRODUCTION









(1)


This Decision is issued pursuant to Article 101 and 102 of the Treaty on the Functioning of the European Union (the ‘Treaty’) and addressed to Mondelēz International, Inc., Mondelez Europe GmbH and Mondelez Middle East & Africa FZE (hereafter together ‘Mondelēz’). Mondelēz is a global food and beverage company focused on snack products, which together with its subsidiaries is active in more than 150 countries with its headquarters in the USA. Mondelēz sells chocolate confectionery under a range of brands (including Milka, Côte d’Or, Toblerone, Cadbury, Marabou, Daim, Mirabell and Suchard) and biscuits under other brands (Oreo, Belvita, LU, Prince, Ritz, TUC, LiGa, Mikado). Until 2015 Mondelēz owned a number of coffee brands (HAG, Jacobs, Velours Noir).












(2)


During different periods between 18 December 2006 and 7 March 2020 Mondelēz restricted parallel trade in various biscuit, chocolate and coffee products through 22 agreements/concerted practices restricting competition by object contrary to Article 101(1) TFEU and through two abuses of Mondelēz’s dominant position in certain national markets for the sale of chocolate tablets in breach of Article 102 TFEU.





PROCEDURE









(3)


The Commission launched this case ex officio in 2019. In November 2019, the Commission carried out unannounced inspections at the premises of Mondelēz in Austria (Vienna), Belgium (Mechelen) and Germany (Bremen). The Commission initiated formal proceedings against Mondelēz on 28 January 2021.












(4)


In the course of the investigation, Mondelēz expressed interest in beginning cooperation discussions with the Commission. On […] (2), Mondelēz submitted a settlement submission under the cooperation procedure.












(5)


On 7 March 2024 the Commission adopted a Statement of Objections (SO). On 22 March 2024, Mondelez replied to the SO, confirming that it reflects the contents of its settlement submission and that it wishes to continue the cooperation procedure under those conditions.












(6)


The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 15 May 2024.












(7)


The Commission adopted the Decision on 23 May 2024.





FACTS


Summary of the infringement









(8)


The Decision finds the following main types of restrictions:






(a)


agreements or concerted practices preventing certain exclusive distributors and traders (also known as ‘brokers’) from making sales to customers outside the territories where they bought products from Mondelēz; the customers were restricted in terms of territories in which they could sell or customers to whom they could sell; in one instance the customer and Mondelēz also agreed that the customer would sell products destined for exportation outside its territory at higher prices compared to domestically;










(b)


Mondelēz unilaterally cut off sales of chocolate tablets to a customer in order to prevent it from reselling them in Member States in which Mondelēz occupied a dominant position;










(c)


Mondelēz’s decision to remove certain Côte d’Or branded chocolate tablets from the market in the Netherlands to prevent a Dutch retailer from buying the tablets in the Netherlands to resell them in its stores in Belgium, where Mondelēz charged higher prices to its retail customers.









Addressees and duration









(9)


The decision is addressed to Mondelēz International, Inc. In addition to Mondelēz International, Inc., Mondelez Europe GmbH and Mondelez Middle East & Africa FZE were each respectively held jointly and severally liable with Mondelēz International, Inc., because they exercised decisive influence over the subsidiaries that participated directly in the infringements.












(10)


The duration of the infringements lasted for different periods of time in the period from 18 December 2006 to 7 March 2020.





FINES









(11)


The decision applies the 2006 Guidelines on fines (3).





Basic amount of the fine









(12)


In setting the fines, the Commission took into account the value of Mondelēz’s sales of the relevant chocolate, biscuit or coffee products during the last full business year of each infringement.












(13)


The Commission took into account that the infringing conduct consists of an intentional violation of a clear, fundamental rule not to partition the internal market along national borders and that the Commission had already sanctioned similar practices in the past. Moreover, the infringement concerns products that have a direct impact on consumers. Taking into account these factors and in light of the specific circumstances of the case the proportion of the values of sales to be taken into account is set at 10 %.





Entry fee









(14)


The draft Decision does not apply an entry fee.





Aggravating or mitigating circumstances









(15)


There are no aggravating or mitigating circumstances in the case.





Deterrence multiplier









(16)


The draft Decision includes an appropriate ‘deterrence multiplier’ of 1.1. This is in line with other decisions involving companies with a similar global turnover (approximately EUR 30 billion).





Turnover cap









(17)


The fine does not exceed 10 % of Mondelēz’s total worldwide turnover for any of the infringements.





Cooperation discount









(18)


The Decision concludes that the fine should be reduced by 15 %. Mondelēz acknowledged in its settlement submission the facts, their legal qualification and its liability for the infringements as described in the draft Decision. Mondelēz manifested its interest in cooperation prior to the adoption of a Statement of Objections. The reduction is not higher because Mondelēz started to cooperate only at a stage where the Commission had largely completed its investigation and was working on the SO. In addition, Mondelēz has not submitted any additional evidence providing significant added value to the investigation or expanding the duration, geographic or product scope of the infringements that would merit granting a higher cooperation discount.





Conclusion









(19)


Mondelēz infringed Article 101 and 102 TFEU by engaging in 24 different infringements aimed to partition the EU internal market.












(20)


The final amount of the fine imposed on Mondelēz’pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 amounts to EUR 337 522 800.






(1)  
            OJ L 1, 4.1.2003, p. 1. Regulation as amended by Regulation (EC) No 411/2004 (OJ L 68, 6.3.2004, p. 1).

(2)  
            ‘Parts of this text have been edited to ensure that confidential information is not disclosed. Those parts are replaced by a non-confidential summary in square brackets or are shown as […].’
         

(3)  
            OJ C 210, 1.9.2006, p. 2.


ELI: http://data.europa.eu/eli/C/2024/5548/oj
ISSN 1977-091X (electronic edition)