This Decision is addressed to:
1. Acerinox SA, Santiago de Compostela 100, E-28035 Madrid;
2. ALZ NV, Industrieterrein Genk-Zuid Rechteroever, B-3600 Genk;
3. Acciai Speciali Terni SpA, Viale B. Brin 218, I-05100 Terni;
4. Avesta Sheffield AB, Vasagatan 8-10 P.O. Box 16377, S-10327 Stockholm;
5. Krupp Thyssen Nirosta GmbH, Alleestraße 165, D-44793 Bochum;
6. Usinor SA, La Défense 7, 13 Cours Valmy, F-92800 Puteaux.
This Decision is enforceable pursuant to Article 92 of the Treaty.
Done at Brussels, 21 January 1998.
For the Commission
Karel VAN MIERT
Member of the Commission
NOTES
(1) Commission Decision 95/421/EC of 21 December 1994 declaring a concentration to be compatible with the common market (Case IV/M.484 - Krupp/Thyssen/Riva/Falck/Tadfin/AST) (OJ L 251, 19.10.1995, p. 18).
(2) See footnote 1.
(3) Commission Decision of 26 July 1994 authorising Fried. Krupp AG Hoesch-Krupp and Thyssen Stahl AG to set up a joint venture for the production of flat special stainless steel products that are resistant to acids and high temperatures.
(4) See for example the statement by Acerinox dated 17 December 1996: 'La fórmula en su estado actual viene aplicándose desde el año 1988.` ('The current formula has been applied since 1988.`) or the statement by AST of 10 January 1997: '(. . .) la Ilva SpA (che comprendeva la allora Divisione Acciai Speciali che, dopo la scissione del 1994 è divenuta la AST) applicava l'extra di lega già nel 1988`. ('(. . .) Ilva SpA (which then included the "special steels" division which, after the split in 1994, became AST) was already applying the alloy surcharge in 1988`).
(5) Commission Decision 90/417/ECSC of 18 July 1990 relating to a proceeding under Article 65 of the ECSC Treaty concerning an agreement and concerted practices engaged in by European producers of cold-rolled stainless steel flat products (OJ L 220, 15.8.1990, p. 28).
(6) Statement by Acerinox (see note 4): 'Acerinox SA conforme lo muestran los hechos que posteriormente acontecieron, no promovió dicha reunión, aunque si, una vez decidida por las partes su convocatoria en Madrid, a petición de los asistentes, reservó un establecimiento para que la misma pudiera tener lugar.` ('As subsequent events proved, Acerinox SA was not the initiator of this meeting even if, after the participants decided to meet in Madrid, and at their request, it booked a venue for that purpose`).
(7) 'A meeting was held in Madrid on 15 December 1993. The decision to hold the meeting was taken by the parties in order to discuss (. . .) the critical situation in the market for the raw materials used in the production of stainless steel and the extreme volatility of the prices of these raw materials.`
(8) Original version.
(9) 'The discussion concerned the generally poor situation as well as possible solutions.`
(10) 'A meeting took place on 16 December 1993 at the Hotel [ . . . ] in Madrid which allowed stainless steel producers to hold an exchange of views.`
(11) 'In this context, and in order to find a solution to this crisis, a meeting was held between the leading European steel producers`.
(12) Acerinox statement: 'El Sr. Laquay expuso cómo se había aplicado históricamente el extra de aleación`. ('Mr Laquay explained how the alloy surcharge had been applied in the past`).
(13) 'Mr Laquay, as a specialist in calculating the alloy surcharge, calculated, with the aid of a flip chart and taking as example the prices applied by his undertaking in France, the additional turnover that could be achieved by appropriately altering the trigger threshold on the French market`.
(14) 'At the meeting, the participants also examined whether it was necessary, in view of the instability of raw material prices, a market in which Acerinox has no influence, to apply the alloy surcharge to customers using the tried and tested method by means of the most appropriate reference values so as to counter the increasingly speculative nature of transactions on the London Metals Exchange.`
(15) 'At the meeting, participants discussed the initiatives they intended to take in this area, and those they had taken quite independently before (at least as regards AST). There was a natural convergence of views on the adoption, as a minimum level in the context of this formula, of the September 1993 nickel price.`
(16) Original version.
(17) 'Under the circumstances, the only possible solution to halt the trend is to try to reintroduce the alloy surcharge, which had been suspended owing to the fall in prices for alloys below the trigger level applied till then (. . .) At the meeting, Mr Plömacher then stated that Krupp would in future take the low September posted price for nickel as the trigger threshold.`
(18) 'During the meeting, certain participants, including Ugine, expressed their intention, with or without reservations, to reapply the alloy surcharge together with a new trigger threshold (the lowest nickel price in September) as from 1 February 1994.`
(19) Original version.
(20) Original version.
(21) 'A majority of those present was in favour of applying the surcharge as soon as possible.`
(22) 'Acerinox said it did not plan to apply the surcharge in Spain because it considered the measure would not help to increase demand and would not have a positive effect on Spanish industry which was in the depths of a severe crisis.`
(23) Fax obtained at Outokumpu's offices during the inspection on 17 October 1996.
(24) Original version.
(25) 'Following the meeting, Ugine notified participants by fax on 20 December 1993 and 11 January 1994 of the calculation bases and results based on the method it intended to use on the French domestic or European markets in the event of non-alignment`.
(26) 'Outokumpu a été informée par télécopie des conclusions de la réunion de Madrid de 20.12.1993` ('Outokumpu was informed by fax of the conclusions of the Madrid meeting on 20.12.1993`).
(27) 'The lack of direct knowledge of the details does not however make it possible to deny categorically that there were exchanges of information. (. . .) In view of the apparent content of these messages, it is likewise impossible to state that they did not influence AST in determining the values used in the method.`
(28) OJ 18 of the ECSC, 1.8.1954, p. 470.
(29) OJ L 221, 7.8.1986, p. 14.
(30) Avesta statement - Attachment 1: 'Alloy surcharges are likely to be introduced on CR and CPP products from 1 February. The details may not be available until early January 1994 when I will let you know.`
(31) Reply given by ALZ to the request for information.
(32) Avesta statement: 'On 10 January 1994, ASAB produced a full internal surcharge calculation for application in February. This internal calculation used the same trigger values as contained in Mr Laquay's fax of 20 December 1993.`
(33) Document obtained from the offices of Outokumpu.
(34) Original text, from the Avesta statement.
(35) Original text.
(36) Original text.
(37) Document taken from the offices of Outokumpu.
(38) Document taken from the offices of Outokumpu.
(39) Avesta statement.
(40) Original text.
(41) Original text.
(42) Original text.
(43) Original text.
(44) Judgment of 13 July 1972, Case 48/69 ICI v. Commission of the European Communities [1972] ECR 619.
(45) Opinion 1-61 of 13 December 1961 of the Court of Justice [1961] ECR 505.
(46) OJ C 75, 29.7.1968, p. 3.
(47) ALZ, Avesta, AST, Krupp, Thyssen.
(48) ALZ, AST, Krupp, Thyssen.
(49) ALZ, AST, Avesta, Krupp, Thyssen, Usinor Sacilor.
(50) AST, Krupp, Thyssen.
(51) Commission Decision 80/257/ECSC of 8 February 1980 relating to a proceeding under Article 65 of the ECSC Treaty in respect of a price-fixing system for the sale of rolled steel products ex stock by stockholders on the German market (OJ L 62, 7.3.1980, p. 28, at paragraph 25).
(52) Commission Decision 94/215/ECSC of 16 February 1994 relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams (OJ L 116, 6.5.1994, p. 1, at paragraph 249).
(53) See paragraphs 23, 28 and 32.
(54) See paragraphs 21, 27, 33 and 37.
(55) OJ C 207, 18.7.1996, p. 4.
(56) 'We did not receive any information`.
(57) Inspection minutes - Krupp.
(58) Inspection minutes - Ugine.
(59) 'ALZ does not recall having received from other stainless steel producers, between 1 August 1993 and 1 February 1994, information concerning the amendment of the alloy surcharge trigger values. (. . .) ALZ subsequently, towards 15 January, informed the other market operators, i.e. its customers, producers and agents, that it intended to announce the application of a new alloy surcharge from 1 February 1994.`
(60) 'AST would point out, however, that it had heard that the Commission had discovered a document which AST in turn allegedly sent to Outokumpu`.
