2003/674/EC: Commission decision of 2 July 2002 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case C.37.519 — Methionine) (Text with EEA relevance.)(notified under document number C(2002) 2276)

• Articles: 5

Article 1

Aventis SA and Aventis Animal Nutrition SA, jointly liable, Degussa AG and Nippon Soda Company Ltd have infringed Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement by participating, in the manner and to the extent set out in the reasoning, in a complex of agreements and concerted practices in the sector of methionine.

The duration of the infringement was as follows:

- from February 1986 until February 1999.

Article 2

The undertakings named in Article 1 shall forthwith bring the said infringement to an end, if they have not already done so. They shall henceforward refrain in relation to their activities in methionine from any agreements or concerted practices that may have the same or a similar object or effect as the infringement.

Article 3

The following fines are hereby imposed on the undertakings names in Article 1 in respect of the infringement found herein:

- Degussa AG, a fine of EUR 118125000,

- Nippon Soda Company Ltd, a fine of EUR 9000000.

Article 4

The fine 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

(SWIFT code: BBVABEBB)

(IBAN code: BE76 6420 0290 0095)

After expiry of that period, interest shall automatically be payable at the rate applied by the European Central Bank to its main refinancing operations on the first day of the month in which this Decision was adopted, plus 3,5 percentage points.

Article 5

This Decision is addressed to:

Aventis SA 1, Avenue de l'Europe F - 67300 Strasbourg

Aventis Animal Nutrition SA 42, Avenue Aristide Briand F - 92150 Antony

Degussa AG Bennigsenplatz 1 D - 40474 Düsseldorf

Nippon Soda Company Ltd

Shinotemachi Building

2-2-1 Otemachi / Chiyoda-Ku Tokyo 100-8165 ( Japan )

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

Done at Brussels, 2 July 2002.

For the Commission

Mario Monti

Member of the Commission

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

(2) OJ L 1, 4.1.2003, p. 1.

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

(4) OJ C 241, 8.10.2003.

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

(6) Case IV/M.1378 (OJ C 254, 7.9.1999, p. 5).

(7) The square brackets marked with an asterisk denote confidential information which has been deleted from the text.

(8) [1767].

(9) [1800-1801, 1802-1805, 1806-1809, 1810-1813, 1814-1820].

(10) Sumitomo Article 11 reply, p. 6 et seq.

(11) [1767].

(12) [1614-1615].

(13) [1732].

(14) [1616].

(15) [1767].

(16) The distinction may not have been as apparent to others as it was to Nippon Soda: Degussa continued to use the term "Summit" throughout. The direction and focus of the meetings appear however to have changed with the arrival of Monsanto (whose methionine business was later to be spun off and incorporated as Novus) on the European market in 1988 to 1989.

(17) [1802-1805].

(18) [1712-1713, 1719].

(19) [1719-1720].

(20) Nippon Soda submission of 23 February 2000, pages 4 and 5 [1767-1768].

(21) [1800-1801].

(22) [1800-1801].

(23) This is obviously a typing error and 1990 is meant.

(24) The note also shows that the cartel members were essentially concerned with Monsanto's arrival on the market (documents found at Degussa showing details of Monsanto's 1990 sales in tonnes and its important customers indicate that Monsanto was a main preoccupation of the cartel, see at pages 49 and 50-51. At various moments throughout the duration of the cartel, they would try to obtain the cooperation of Monsanto.

(25) [1712].

(26) [1768].

(27) [1772-1773].

(28) [1773].

(29) [1782-1799].

(30) [558].

(31) [134-137].

(32) [195].

(33) [136].

(34) [567].

(35) [192-193].

(36) [198].

(37) [190-191].

(38) [187].

(39) [173].

(40) [192-193].

(41) [175-180].

(42) [1806-1809].

(43) [1810-1813].

(44) [1814-1820].

(45) [1814-1820] (page 5).

(46) [167-172].

(47) [167-172] (page 4).

(48) At several times in the arrangements, it was suggested that the participants should try to persuade Novus to join the arrangements. However, nothing came of this.

(49) [154-158].

(50) [154-158] (last page).

(51) [118-121].

(52) [122].

(53) [125-133].

(54) [59].

(55) [105-115].

(56) [105-115] (page 11).

(57) [80-83].

(58) [97].

(59) [ ]* of Degussa, who participated until 1991.

(60) [294].

(61) [1776].

(62) [1773, 1745-1754].

(63) [1773].

(64) [1724-1725].

(65) [1724].

(66) [1725].

(67) [1775].

(68) [1726].

(69) See Final Act of the Agreement on the European Economic Area (OJ L 1, 3.1.1994, p. 3).

(70) Pursuant to Article 56(1)(b) of the EEA Agreement, and without prejudice to the competence of the Commission where trade between Member States is affected, the ESA is also competent on cases where the turnover of the undertakings concerned in the territory of the EFTA States equals 33 % or more of their turnover in the territory of the EEA.

(71) See below under Chapter 5 "Effect upon trade between Community Member States and EEA Contracting Parties".

(72) Joined Cases T-305/94, etc., Limburgse Vinyl Maatschappij NV and others v Commission (PVC II) (1999) ECR II-931, at paragraph 715.

(73) The case-law of the Court of Justice and Court of First Instance analysed below in relation to the interpretation of the terms "agreements" and "concerted practices" in Article 81 of the EC Treaty expresses principles well established before the signature of the EEA Agreement. It therefore applies equally to these terms in so far as they are used in Article 53 of the EEA Agreement. References to Article 81 therefore apply also to Article 53.

(74) Case 48/69, Imperial Chemical Industries v Commission (1972) ECR 619 at paragraph 64.

(75) Joined Cases 40-48/73, etc., Suiker Unie and others v Commission (1975) ECR 1663.

(76) See also judgment of the Court of First Instance in Case T-7/89 Hercules v Commission (1991) ECR II-1711, at paragraph 256.

(77) See judgment of the Court of Justice in Case C-199/92 P Hüls v Commission (1991) ECR I-4287, at paragraphs 158-166.

(78) Judgment of the Court of First Instance in Case T-7/89 Hercules v Commission, at paragraph 264.

(79) At paragraph 696.

(80) Judgment of the Court of First Instance in Case T-7/89 Hercules v Commission, at paragraphs 262-263.

(81) Judgment of the Court of Justice in Case C-49/92 Commission v Anic (1999) ECR I-4125, at paragraph 83.

(82) See judgment of the Court of First Instance in T-25/95 et al. Cimenteries CBR and Others v Commission (2000) ECR II-491, paragraph 2430.

(83) According to Degussa's reply to the Commission's Article 11 letter, this meeting was held in Lisbon on 15 to 17 March 1992. In its reply to the statement of objections, Degussa refers to it as the "Barcelona" meeting of 1992, but it is understood that this should in fact read as "Lissabon" instead of "Barcelona".

(84) See for example judgment of the Court of First Instance in Case T-25/95 Cimenteries SBR v Commission (2000) ECR II-491; judgment of the Court of First Instance in Case T-21/99 Dansk Rorindustrie A/S v Commission, paragraphs 41-49 (not yet published); judgment of the Court of First Instance in Case T-12/89 Solvay & Cie SA v Commission (1992) ECR II-907, paragraphs 98-99; judgment of the Court of First Instance in Case T-141/89 Tréfileurope v Commission (1995) ECR II-791, at paragraphs 85-86.

(85) Judgment of the Court of First Instance in Case T-25/95 Cimenteries SBR v Commission (2000) ECR II-491, at paragraph 3927. See also judgment of the Court of First Instance in Cases T-374/94, T-375/94, T-384/94 and T-388/94 European Night Services v Commission (1998) ECR II-3196, at paragraph 136, where the Court has stated this in specific relation to price-fixing agreements.

(86) Judgment of the Court of First Instance in Case T-13/89 Imperial Chemical Industries v Commission (1992) ECR II-1021, at paragraph 304.

(87) Judgment of the Court of Justice in Joined Cases 209 to 215 and 218/78 Van Landewyck and others v Commission (1980) ECR 3125, paragraph 170.

(88) Case 48/69 Imperial Chemical Industries (1972) ECR 619, at paragraphs 132-133.

(89) Case 107/82 AEG-Telefunken (1983) ECR 3151, paragraph 50.

(90) Case T-65/89 BPB Industries (1993) ECR II-0389, paragraph 149. (Appeal rejected by judgment of the Court in Case C-310/93 (1995) ECR I-0865).

(91) Judgment of the Court in Case C-286/98 Stora Kopparbergs Bergslags AB (2000) ECR I-9925, at paragraph 29.

(92) Commission decisions in the Polypropylene case (OJ L 230, 18.8.1986, p. 1, paragraph 96); in the PVC case (OJ L 74, 17.3.1989, p. 1, paragraph 43); and in the Cartonboard case (OJ L 243, 19.9.1994, p. 1, paragraph 156). See also Case T-6/89 Enichem Anic SpA v Commission (Polypropylene) (1991) ECR II-1623. Judgment upheld by the Court of Justice in case C-49/92 P Commission v Anic Partecipazioni SpA (1999) ECR I-4125. Also, Case T-327/94 SCA Holdings Ltd v Commission (1998) ECR II-1373. Judgment upheld by the Court of Justice in Case C-297/98 P SCA Holdings Ltd (2000) ECR I-10101.

(93) Case T-352/94 Mo Och Domsjö AB v Commission (1998) ECR II-1989, at paragraph 87.

(94) See also judgment of Court of Justice in Stora Kopparbergs Bergslags AB v Commission (2000) ECR I-9925, at paragraphs 37 and 38.

(95) In its reply to the statement of objections, Aventis refers to its letter of 17 January 2002 addressed to the Commission where it states the reasons why it considers that AAN should be the addressee of the Decision rather than Aventis SA.

(96) Under 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 (now Articles 81 and 82) of the EC Treaty [...] shall apply mutatis mutandis" (OJ L 305, 30.11.1994, p. 6).

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

(98) See recital 61.

(99) The cartel members covered virtually all the market during the earlier years of the cartel. After Monsanto's (Novus since 1991) entry into the market, the cartel members gradually lost market shares. However, towards the end of the infringement, the participants would still hold over 60 % of the worldwide and European market for methionine.

(100) [1806-1809].

(101) 1 USD = 1,61147 DEM in 1990 (Eurostat official exchange rate).

(102) 1 USD = 1,61147 DEM in 1990 (Eurostat official exchange rate).

(103) 1 USD = 1,61147 DEM in 1990 (Eurostat official exchange rate).

(104) 1 USD = 1,61147 DEM in 1990 (Eurostat official exchange rate).

(105) Case T-308/94 (1998) ECR II-925, paragraph 230.

(106) Aventis' reply to the Commission's statement of objections, p. 14.

(107) See, for instance, recital 365 of the Commission Decision in Case COMP/36.545/F3 Amino Acids (OJ L 152, 7.6.2001, p. 24).

(108) See recital 98 and following.

(109) Case T-308/94 Cascades SA v Commission (1998) ECR II-925, at paragraph 230.

(110) As discussed earlier, see under "Addressees".

(111) Nippon Soda also does not meet the condition set out under point (a) of Section B.

(112) Judgment of the Court of First Instance of 20 February 2001 in Case T-112/98 Mannesmann Röhren-Werke AG v Commission and judgment of the Court of Justice in Case 374/87 Orkem v Commission (1989) ECR 3283, at paragraph 35.

(113) Judgment of the Court of Justice in Case 374/87 Orkem v Commission (1989) ECR 3283, at paragraph 27.

(114) Judgment of the Court of First Instance of 20 February 2001 in Case T-112/98 Mannesmann Röhren-Werke AG v Commission, paragraphs 70, 77-78; judgment of the Court of Justice in Case 374/87 Orkem v Commission (1989) ECR 3283, paragraphs 37-38, 40. See also judgment of the Court of Justice in Case C-227/92 P Hoechst AG v Commission (1989) ECR 2859 and the opinion of Advocate General Mischo delivered on 20 September 2001 in Case C-94/2000 Roquette Frères SA v Commission concerning the powers given to the Commission by Article 14 of Regulation 17 to enable it to carry out its duty under the EC Treaty to bring to light any infringement of Articles 81 or 82 of the EC Treaty.

(115) Ibid., paragraph 78.