2003/2/EC: Commission Decision of 21 November 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/37.512 — Vitamins) (notified under document number C(2001) 3695) (Text with EEA relevance)

• Articles: 6

Article 1

1. The following undertakings have infringed Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement:

(a) F. Hoffmann-La Roche AG by participating in agreements affecting the Community and EEA markets for vitamins A, E, B1, B2, B5, B6, C, D3, H, folic acid, beta-carotene and carotinoids;

(b) BASF AG by participating in agreements affecting the Community and EEA markets for vitamins A, E, B1, B2, B5, C, D3, H, beta-carotene and carotinoids;

(c) Aventis SA by participating in agreements affecting the Community and EEA markets for vitamins A, E, and D3;

(d) Lonza AG by participating in agreements affecting the Community market for vitamin H;

(e) Solvay Pharmaceuticals BV by participating in agreements affecting the Community and EEA markets for vitamin D3;

(f) Merck KgaA by participating in agreements affecting the Community and EEA markets for vitamins C and H;

(g) Daiichi Pharmaceutical Co. Ltd by participating in agreements affecting the Community and EEA markets for vitamins B5 and B6;

(h) Eisai Co. Ltd by participating in agreements affecting the Community and EEA market for vitamin E;

(i) Kongo Chemical Co. Ltd by participating in agreements affecting the Community market for folic acid;

(j) Sumitomo Chemical Co. Ltd by participating in agreements affecting the Community market for vitamin H;

(k) Sumika Fine Chemicals Ltd by participating in agreements affecting the Community market for folic acid;

(l) Takeda Chemical Industries Ltd by participating in agreements affecting the Community and EEA markets for vitamins B1, B2, B6, C, and folic acid; and

(m) Tanabe Seiyaku Co. Ltd by participating in agreements affecting the Community market for vitamin H.

2. The duration of the infringements was as follows:

(a) F. Hoffmann-La Roche AG, with respect to:

- vitamin A: from September 1989 to February 1999,

- vitamin E: from September 1989 to February 1999,

- vitamin B1: from January 1991 to June 1994,

- vitamin B2: from July 1991 to September 1995,

- vitamin B5: from September 1991 to February 1999,

- vitamin B6: from January 1991 to June 1994,

- vitamin C: from January 1991 to August 1995,

- vitamin D3: from January 1994 to June 1998,

- vitamin H: from October 1991 to April 1994,

- folic acid: from January 1991 to June 1994,

- beta-carotene: from September 1992 to December 1998,

- carotinoids: from May 1993 to December 1998;

(b) BASF AG, with respect to:

- vitamin A: from September 1989 to February 1999,

- vitamin E: from September 1989 to February 1999,

- vitamin B1: from January 1991 to June 1994,

- vitamin B2: from July 1991 to September 1995,

- vitamin B5: from September 1991 to February 1999,

- vitamin C: from January 1991 to August 1995,

- vitamin D3: from January 1994 to June 1998,

- vitamin H: from October 1991 to April 1994,

- beta-carotene: from September 1992 to December 1998,

- carotinoids: from May 1993 to December 1998;

(c) Aventis SA, with respect to:

- vitamin A: from September 1989 to February 1999,

- vitamin E: from September 1989 to February 1999,

- vitamin D3: from January 1994 to July 1998;

(d) Takeda Chemical Industries Ltd, with respect to:

- vitamin B1: from January 1991 to June 1994,

- vitamin B2: from January 1992 to September 1995,

- vitamin B6: from January 1991 to June 1994,

- vitamin C: from January 1991 to August 1995,

- folic acid: from January 1991 to June 1994;

(e) Merck KgaA, with respect to:

- vitamin C: from January 1991 to August 1995,

- vitamin H: from October 1991 to April 1994;

(f) Daiichi Pharmaceutical Co. Ltd, with respect to:

- vitamin B5: from September 1991 to February 1999,

- vitamin B6: from January 1991 to June 1994;

(g) Lonza AG, with respect to:

- vitamin H: from October 1991 to April 1994;

(h) Solvay Pharmaceuticals BV, with respect to:

- vitamin D3: from January 1994 to June 1998;

(i) Eisai Co. Ltd, with respect to:

- vitamin E: from January 1991 to February 1999;

(j) Kongo Chemical Co. Ltd, with respect to:

- folic acid: from January 1991 to June 1994;

(k) Sumitomo Chemical Co. Ltd, with respect to:

- vitamin H: from October 1991 to April 1994;

(l) Sumika Fine Chemicals Ltd, with respect to:

- folic acid: from January 1991 to June 1994;

(m) Tanabe Seiyaku Co. Ltd, with respect to:

- vitamin H: from October 1991 to April 1994;

Article 2

The undertakings listed in Article 1 shall immediately bring to an end the infringements referred to in that Article, in so far as they have not already done so.

They shall refrain from repeating any act or conduct referred to in Article 1 and from adopting any measure having the same or equivalent object or effect.

Article 3

For the infringements referred to in Article 1, the following fines are imposed on the following undertakings:

(a) F. Hoffmann-La Roche AG:

- a fine of EUR 85,5 million for its infringement in the vitamin A market,

- a fine of EUR 99,75 million for its infringement in the vitamin E market,

- a fine of EUR 42 million for its infringement in the vitamin B2 market,

- a fine of EUR 54 million for its infringement in the vitamin B5 market,

- a fine of EUR 65,25 million for its infringement in the vitamin C market,

- a fine of EUR 21 million for its infringement in the vitamin D3 market,

- a fine of EUR 48 million for its infringement in the beta-carotene market,

- a fine of EUR 46,5 million for its infringement in the carotinoids market,

(b) BASF AG:

- a fine of EUR 46,17 million for its infringement in the vitamin A market,

- a fine of EUR 89,78 million for its infringement in the vitamin E market,

- a fine of EUR 18,9 million for its infringement in the vitamin B2 market,

- a fine of EUR 34,02 million for its infringement in the vitamin B5 market,

- a fine of EUR 14,68 million for its infringement in the vitamin C market,

- a fine of EUR 7,56 million for its infringement in the vitamin D3 market,

- a fine of EUR 43,2 million for its infringement in the beta-carotene market,

- a fine of EUR 41,85 million for its infringement in the carotinoids market,

(c) Aventis SA: a fine of EUR 5,04 million for its infringement in the vitamin D3 market;

(d) Takeda Chemical Industries Ltd:

- a fine of EUR 8,78 million for its infringement in the vitamin B2 market,

- a fine of EUR 28,28 million for its infringement in the vitamin C market;

(e) Merck KgaA: a fine of EUR 9,24 million for its infringement in the vitamin C market;

(f) Daiichi Pharmaceutical Co. Ltd: a fine of EUR 23,4 million for its infringement in the vitamin B5 market;

(g) Solvay Pharmaceuticals BV: a fine of EUR 9,1 million for its infringement in the vitamin D3 market;

(h) Eisai Co. Ltd: a fine of EUR 13,23 million for its infringement in the vitamin E market.

Article 4

The fines shall be paid, within three months of the date of the notification of this Decision to the following account:

Account No 642-0029000-95 of the European Commission with:

Banco Bilbao Vizcaya Argentaria (BBVA) SA

Avenue des Arts, Kunstlaan, 43

B-1040 Brussels

(Code SWIFT: BBVABEBB - Code IBAN BE76 6420 0290 0095).

After expiry of that period, interest shall automatically be payable at the interest rate applied 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 7,25 %.

Article 5

This Decision is addressed to:

F. Hoffmann-La Roche AG

CH-4070 Basel

BASF AG

D-67056 Ludwigshafen

Aventis SA

16, Avenue de l'Europe

Espace Européen de l'Entreprise

F-67300 Schiltigheim

Takeda Chemical Industries Ltd

12-10, Nihonbashi 2-Chome

Chuo-Ku

Tokyo 103-8668 Japan

Merck KgaA

Frankfurter Straße 250

D-64293 Darmstadt

Daiichi Pharmaceutical Co. Ltd

14-10, Nihonbashi, 3-Chome

Chuo-Ku

Tokyo 103-8234 Japan

Lonza AG

Münchensteinerstraße 38

CH-4002 Basel

Solvay Pharmaceuticals BV

C.J. Van Houtenlaan 36

1381 CP Weesp

The Netherlands

Eisai Co. Ltd

6-10, Koishikawa, 4-Chome

Bunkyo-Ku

Tokyo 112-88 Japan

Kongo Chemical Co. Ltd

3, Himata

Toyama-shi

Toyama 9300912 Japan

Sumitomo Chemical Co. Ltd

27-1, Shinkawa 2-Chome

Chuo-Ku

Tokyo Japan

Sumika Fine Chemicals Ltd

3-1-21, Utajima

Nishiyodogawa-ku

Osaka 555-0021 Japan

Tanabe Seiyaku Co. Ltd

2-10 Dosho-machi 3-Chome

Chuo-Ku

Osaka 541-8505 Japan

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

Done at Brussels, 21 November 2001.

For the Commission

Mario Monti

Member of the Commission

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

(2) OJ L 148, 15.6.1999, p. 5.

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

(4) Since the events in question occurred prior to the creation of Aventis in December 1999, the company will be identified as "Rhône-Poulenc".

(5) Excluding Vitamins B3, B4 and B12 which are not the subject of the present procedure.

(6) In 1976 Hoffmann-La Roche was fined 300000 u.a. by the Commission for an abuse of its dominant position (fidelity rebates) in the vitamins sector (as L 223, 16.8.1976, p. 27). The decision was substantially upheld by the European Court of Justice but the fine was reduced to 200000 u.a.: [1978] ECR 1139.

(7) Business secret.

(8) OJ L 395, 30.12.1989, p. 1.

(9) OJ L 180, 9.7.1997, p. 1.

(10) Case IV/M.1378 - Hoechst/Rhône Poulenc (OJ C 254, 7.9.1999, p. 5).

(11) Commission decision of 14 March 2000 (Case COMP/M.1663).

(12) Business secret.

(13) The market is at times referred to as "western Europe" since participants would refer to this market which, whilst evidently close in size, is not the exact equivalent to that of the EEA.

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

(15) Business secret.

(16) The term "straights" refers to those vitamins sold as a mono-product, i.e. not in combination with other vitamins or nutritional substances. It is usually used in contraposition to the term "mixes" which refers to the combination of a number of vitamins to a certain specification.

(17) In the case of Lonza, Merck, Sumitomo and Tanabe they related to vitamin H; in the case of Daiichi to vitamin B6 and in that of Takeda, vitamins B1 and B6.

(18) Business secret.

(19) Business secret.

(20) Similar documentation is available for most of the years from 1988.

(21) Lohmann (of Cuxhaven, Germany) is a distributor of vitamin products (for animal consumption) which purchases vitamins for resale from the manufacturers. Nutrilo is a subsidiary of Lohmann.

(22) The total for East and West Europe of 235,96 corresponds to the figure of 236.

(23) Hoffmann-La Roche tends to confirm this aspect of the price collusion, and the same concerns were apparent in vitamins A and E.

(24) Daiichi suggests that there had been collusive contacts between the producers during the 1980s but they had ended in 1989 when the price fell steeply.

(25) Hoffmann-La Roche has identified Daiichi as a participant but Takeda's note does not record it as being present: the person named denies ever having entered the Keidanren building in Tokyo where the meeting took place.

(26) It is not known whether any such attempt was made.

(27) In April 1992, Yodogawa and two other affiliates of Sumitomo Chemical Company merged to form Sumika.

(28) The author has inserted the producers' names after their respective numbers I, II, III and IV; "Soll" refers to the "budgeted" quota; "Ist" is actual performance.

(29) Takeda's European office is located in Hamburg.

(30) Report of the meeting in Basel on 8 February 1994.

(31) Roche made the hotel booking and paid for the room.

(32) Tanabe believes it was suggested by Roche in the Geneva meeting on 25 January.

(33) There had even been a proposal from Roche in January 1993 for the others to compensate it for "buying-in" Il Sung material to take it off the market.

(34) According to BASF, even earlier.

(35) The case-law of the Court of Justice and Court of First Instance in relation to the interpretation of Article 81 EC applies equally to Article 53 EEA. References in this text to Article 81 therefore apply also to Article 53.

(36) See recitals 517 to 519 and 481 to 483.

(37) See recitals 565 to 570 above.

(38) For example Coca Cola in vitamin C.

(39) See recital 160.

(40) See recital 236.

(41) See recital 233.

(42) See recitals 244 and 259.

(43) See recitals 260 to 269.

(44) See recital 271.

(45) See recital 274.

(46) See recital 291.

(47) See recitals 296 to 299.

(48) See recital 328.

(49) See recital 330.

(50) See recital 349.

(51) See recitals 354 and 382.

(52) See recitals 389 to 390.

(53) See recital 451.

(54) See recital 462.

(55) See recitals 479 to 480.

(56) See recital 487.

(57) See recital 513.

(58) See recital 520.

(59) See recital 526.

(60) See recital 534.

(61) The section below dealing with remedies therefore solely refers to Aventis SA.

(62) OJ L 319, 29.11.74, p. 1.

(63) Article 1(2) of Regulation (EEC) No 2988/74.

(64) Article 2(1) and 2(3) of Regulation (EEC) No 2988/74.

(65) Pursuant to Article 5 of Council Regulation (EC) No 2894/94 of 28 November 1994 concerning arrangements of implementing the Agreement on the European Economic Area "the Community rules giving effect to the principles set out in Articles 85 and 86 of the EC Treaty [...] shall apply mutatis mutandis". (OJ L 305, 30.11.1994, p. 6).

(66) See recitals 194 to 210; 392 to 397; 272 to 277; 300 to 308; 520 to 522.

(67) See recitals 392 to 401.

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

(69) I.e. 1998 for vitamin A; 1998 for vitamin E; 1994 for vitamin C; 1994 for vitamin B2; 1998 for vitamin B5; 1997 for vitamin D3 and 1998 for beta-carotene and carotinoids.

(70) See recital 699.

(71) See recital 699.

(72) See recital 699.

(73) See recital 699.

(74) See recital 699.

(75) See recital 699.

(76) See recital 699.

(77) See recital 699.

(78) See recital 699.

(79) See recital 699.

(80) See recitals 160, 181, 183, 185, 187, 234, 236, 237, 271, 274, 275, 296, 314, 315, 319, 322, 388, 410, 418, 460, 462 and 478 for Hoffmann La Roche and recitals 160, 183, 271, 274, 319, 322, 388, 432, 437 and 439 for BASF.

(81) See also recitals 160 to 161; 270 to 271; 296 to 297; 388 to 391; 459 to 461; and 566 to 578.

(82) See recitals 420 to 454.

(83) See recital 741.

(84) See recital 752.

Schedules & Appendices

ANNEX

TABLE I

AGGREGATE TOTAL OF THE COMMUNITY ANNUAL MARKET

>TABLE>

Source:

based on Hoffmann-La Roche data.

BETA-CAROTENE

>TABLE>

VITAMIN A

>TABLE>

VITAMIN E

>TABLE>

VITAMIN B2

>TABLE>

VITAMIN C

>TABLE>

PANTOTHENATES/CALPAN (B5)

>TABLE>

VITAMIN B1

>TABLE>

VITAMIN B6

>TABLE>

VITAMIN D3

>TABLE>

CANTHAXANTHIN

>TABLE>

BIOTIN (VITAMIN H)

>TABLE>

TABLE II

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TABLE III

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TABLE IV

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TABLE V

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TABLE VI

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TABLE VII

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TABLE VIII

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