2001/716/EC: Commission Decision of 18 July 2001 relating to proceedings pursuant to Article 81 of the EC Treaty and Article 53 of the Agreement on the European Economic Area (Case COMP.D.2 37.444 — SAS Maersk Air and Case COMP.D.2 37.386 — Sun-Air versus SAS and Maersk Air) (Text with EEA relevance) (notified under document number C(2001) 1987)

• Articles: 4

Article 1

Scandinavian Airlines System ("SAS") and Maersk Air A/S ("Maersk Air") have infringed Article 81 of the Treaty and Article 53 of the EEA Agreement, by agreeing to:

(a) an overall market-sharing agreement, according to which SAS would not operate on Maersk Air's routes out of Jutland and Maersk Air would not be able to launch services on routes from Copenhagen which SAS operates or wishes to operate, and an agreement to respect the share-out of the domestic routes;

(b) specific market-sharing agreements regarding individual international routes, and in particular:

(i) the agreement pursuant to which Maersk Air would cease flying between Copenhagen and Stockholm as from 28 March 1999 and obtain compensation for its withdrawal;

(ii) in compensation for Maersk Air's withdrawal from the Copenhagen-Stockholm route, the agreement pursuant to which SAS would stop operating between Copenhagen and Venice at the end of March/beginning of April 1999 and Maersk Air would start operations on the route at the same moment;

(iii) the agreement according to which SAS would stop flying on the Billund-Frankfurt route in January 1999.

Article 2

For the infringements referred to in Article 1, a fine of EUR 39375000 shall be imposed on SAS, and a fine of EUR 13125000 shall be imposed on Maersk Air.

Article 3

The fine determined in Article 2 shall be paid in euro within three months of the date of notification of this Decision into the following bank account of the Commission of the European Communities:Account No 642-0029000-95

IBAN BE76 6420 0290 0095

Banco Bilbao Vizcaya Argentaria (BBVA) SA Avenue des Arts/Kunstlaan, 43 B - 1040 Brussels (SWIFT code: BBVABEBB)

After the expiry of the three-month period, interest shall be payable at the rate charged by the European Central Bank to its main refinancing operations on the first working day of the month in which this Decision was adopted, plus 3,5 percentage points, namely 8,04 %.

Article 4

This Decision is addressed to:

SAS, Scandinavian Airlines System Frösundaviks Allé, 1 S - 195 87 Stockholm

and

Maersk Air A/S Copenhagen Airport South DK - 2791 Dragør.

This Decision shall be enforceable pursuant to Article 256 of the Treaty.

Done at Brussels, 18 July 2001.

For the Commission

Mario Monti

Member of the Commission

(1) OJ L 374, 31.12.1987, p. 1.

(2) OJ L 240, 24.8.1992, p. 18.

(3) OJ L 354, 30.12.1998, p. 18.

(4) With Air Canada, Air New Zealand, All Nippon Airways (ANA), Ansett Australia, Austrian Airlines, British Midland, Lauda Air, Lufthansa, Mexicana Airlines, Singapore Airlines, Thai Airways International, United Airlines and Varig Airlines.

(5) OJ 13, 21.2.1962, p. 204/62.

(6) The non-operating carrier is the marketing carrier, who sells tickets for the code-shared flights but does not operate the aeroplane.

(7) Most of the quotes are English translations of documents written in Danish. Certain negotiation documents were written by the parties in English. The language of the case is English because the notifications and the ensuing correspondence with the parties were in English.

(8) Memorandum dated 8 January 1998, from [...] to [...], with the title "Meeting with SAS on 12 January 1998".

(9) OJ C 372, 9.12.1997, p. 5.

(10) As mentioned above, certain leisure travellers (tourists going to Venice for a week-end city-trip) will prefer not to spend additional time connecting in an alternative airport and are therefore included within the category of time-sensitive passengers.

(11) The rail travel times are from Vejle, which is the closest train station to Billund. An airport bus (30 minutes) links Billund Airport to Vejle.

(12) Following the opening of the Øresund link between Copenhagen and Malmö, in July 2000.

(13) The high speed bus service links Copenhagen to Bornholm two to four times a day; until the opening of the Øresund link, the bus was loaded on both ferries, the one between Dragør and Limhamm and the one between Ystad and Bornholm.

(14) The figures are estimates provided by the respective airlines.

(15) Joined Cases 56 and 58/64, Consten and Grundig [1996] ECR 299, point 348.

(16) A few days before, at a meeting between [...] SAS representatives and [...] Mærsk Air representatives the point had been made by an outside lawyer that 'none of the points concerning market-sharing and the setting of prices could be included in a written agreement' (Record of the meeting between Mærsk Air and SAS of 23 June 1998).

(17) OJ C 9, 14.1.1998, p. 3.

(18) Commission Decision of 9 December 1998 (OJ L 109, 27.4.1999, p. 24).

(19) SAS stopped operating on the Copenhagen-Athens route in the autumn of 1997 and Mærsk Air started operations on 28 March 1999.

(20) The size of all the maritime routes between Italy and Greece in 1996 (which is larger than the three routes for which infringements were found) was, according to the Greek ferries decision, of 1258000 passengers, while the size of the Copenhagen-Stockholm, Copenhagen-Venice and Billund-Frankfurt routes was of 1174368 passengers in 1999.

(21) OJ C 207, 18.7.1996, p. 4.

(22) Section B of the leniency notice reads: "B. NON-IMPOSITION OF A FINE OR A VERY SUBSTANTIAL REDUCTION IN ITS AMOUNT

An entreprise which:

(a) informs the Commission about a secret cartel before the Commission has undertaken an investigation, ordered by decision, of the enterprises involved, provided that it does not already have sufficient information to establish the existence of the alleged cartel;

(b) is the first to adduce evidence of the cartel's existence;

(c) puts an end to its involvement in the illegal activity no later than the time at which it discloses the cartel;

(d) provides the Commission with all the relevant information and all the documents and evidence available to it regarding the cartel and maintains continuous and complete cooperation throughout the investigation;

(e) has not compelled another enterprise to take part in the cartel and has not acted as an instigator or played a determining role in the illegal acitivity,

will benefit from a reduction of at least 75 % of the fine or even from total exemption from the fine that would have been imposed if it had not cooperated."

(23) Section D of the leniency notice provides: "D. SIGNIFICANT REDUCTION IN A FINE

1. Where the enterprise cooperates without having met all the conditions set out in sections B or C, it will benefit from a reduction of 10 % to 50% of the fine that would have been imposed if it had not cooperated.

2. Such cases may include the following:

- before a statement of objections is sent, an enterprise provides the Commission with information, documents or other evidence which materially contribute to establishing the infringement,

- after receiving a statement of objections, an enterprise informs the Commission that it does not substantially contest the facts on which the Commission bases its allegations."

(24) Section C of the leniency notice provides: "C. SUBSTANTIAL REDUCTION IN A FINE

Enterprises which both satisfy the conditions set out in section B, points (b) to (e) and disclose the secret cartel after the Commission has undertaken an investigation ordered by decision on the premises of the parties to the cartel which has failed to provide sufficient grounds for initiating the procedure leading to a decision, will benefit from a reduction of 50 % to 75 % of the fine."