85/609/EEC: Commission Decision of 14 December 1985 relating to a proceeding under Article 86 of the EEC Treaty (IV/30.698 - ECS/AKZO) (Only the Dutch text is authentic)

• Articles: 8

Article 1

AKZO Chemie BV infringed Article 86 of the EEC Treaty by pursuing against ECS a course of conduct intended to damage ECS's business or to secure its withdrawal from the EEC organic peroxides market, or both, the essential features of which consisted of: (i) making direct threats to ECS in meetings in late 1979 with the aim of securing ECS's withdrawal from the market for organic peroxides for the "plastics" application;

(ii) from about December 1980 onwards systematically offering and supplying flour additives to Provincial Merchants, Allied Mills and the customers of ECS in the "large independent" sector at unreasonably low prices designed to damage ECS's business viability in that ECS was obliged either to abandon the customer to AKZO Chemie BV or to match a loss-making price in order to retain the customer;

(iii) making such quotations selectively to ECS customers for flour additives while maintaining substantially (up to 60 %) higher prices to comparable buyers which were already its own regular customers;

(iv) offering potassium bromate and vitamin mix (the latter a product which it did not normally supply) at a bait price in a package with benzoyl peroxide to ECS's customers in order to attract their business for the full range of flour additives to the exclusion of ECS;

(v) maintaining, as part of the plan to damage ECS, the prices for flour additives in the United Kingdom at an artificially low level over a prolonged period, a situation which it could survive because of its superior financial resources in comparision with ECS;

(vi) pursuing an exclusionary commercial policy in respect of the major customers RHM and Spillers by obtaining from the said customers precise details of offers made by other suppliers (including ECS) for flour additives and then offering a price just below the lowest alternative offer in order to obtain the business, coupled (in the case of Spillers) with a requirement that the customer agree to obtain its total requirements in flour additives from AKZO Chemie BV.

Article 2

A fine of 10 million ECU, that is, Fl 24 696 000, is hereby imposed on AKZO Chemie BV.

This fine shall be paid, in guilders, within three months of the date of notification of this Decision to the account of the Commission of the European Communities. No 41-60-95-518 at Amro Bank, Amsterdam.

Article 3

AKZO Chemie BV shall forthwith bring to an end the infringement referred to in Article 1 to the extent that it has not already done so.

To this end, AKZO Chemie BV and any subsidiary company forming part of the AKZO Chemie BV undertaking shall refrain from repeating or continuing any of the acts or behaviour specified in Article 1 (i) to (vi).

In particular, but without prejudice to the other obligations arising from Article 1 (i) to (vi), AKZO Chemie BV and its subsidiaries shall refrain (except in order to meet orders at prices accepted before the date of notification of this Decision) from offering or applying prices or other conditions of sale for flour additives in the EEC which would result in customers in respect of whose business it competes with ECS paying to AKZO Chemie BV prices which are dissimilar from those being offered by AKZO Chemie BV to comparable customers.

This provision shall not prevent AKZO Chemie BV from applying price differentials for flour additives as between different categories of customers which reasonably and objectively reflect differences in production and delivery costs attributable to the annual requirement of the customer, order size and other commercial factors.

For the avoidance of doubt, it is hereby provided that offers by AKZO Chemie BV for the supply of flour additives to individual mills of the Allied group shall not be made on terms substantially more favourable than those offered to the "large independents".

Article 4

AKZO Chemie BV shall inform those of its customers for flour additives in the United Kingdom and Ireland which have accepted a stipulation whether oral or in writing, express or implied, requiring them to obtain the whole or effectively the whole of their requirements from AKZO Chemie BV that such a stipulation is not binding on them, and it shall notify the Commission that it has done so by 1 April 1986.

Article 5

AKZO Chemie BV shall, for a period of five years from 1 January 1986, within two months following the end of each calender year, furnish to the Commission a compliance report, which shall for the year in question list the prices offered and applied by AKZO Chemie BV to each customer for each flour additive product in the territory of the EEC, include the internal financial statements for the flour additive business and indicate the basis on which costings were calculated (including transfer prices of raw materials or intermediates from other departments in the AKZO group).

Article 6

In respect of each obligation set out in Articles 4 and 5 a periodic penalty payment of 1 000 ECU per day shall be payable in respect of each day of delay after the dates stated therein.

Article 7

The operation of Decision 83/462/EEC is hereby terminated in accordance with Article 8 of that Decision.

Article 8

This Decision is addressed to AKZO Chemie BV, Stationsstraat 48, Amersfoort, Netherlands.

This Decision shall be enforceable pursuant to Article 192 of the EEC Treaty.

Done at Brussels, 14 December 1985.

For the Commission

Peter SUTHERLAND

Member of the Commission