This Decision is addressed to:
Takeda Chemical Industries Limited 12-10, Nihonbashi 2-chome
Chuo-ku
Tokyo 103-8668 Japan
Ajinomoto Company Incorporated 15-1, Kyobashi itchome
Chuo-ku
Tokyo 104-8315 Japan
Cheil Jedang Corporation 6F, Cheiljedang Bldg
Namdaemoon-Ro
Chung-Ku, 100-095 Seoul Korea
Daesang Corporation Daesang Building
96-48 Shinsul-Dong
Dongdaemoon-Ku, Seoul Korea
This Decision shall be enforceable pursuant to Article 256 of the Treaty.
Done at Brussels, 17 December 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 64, 12.3.2004.
(5) See under the heading "Duration" for individualised dates per undertaking.
(6) The following exchange rate was used: EUR 1 = 108,682 JPY (Eurostat's reference database - 2001 exchange rate).
(7) EUR 1 = 1154,83 won (Eurostat's reference database 2001 exchange rate).
(8) EUR 1 = 1,13404 USD (Eurostat's reference database 2001 exchange rate).
(9) In 1992 Kyowa ceased exporting nucleotides to Europe.
(10) Yamasa Corporation ceased supplying food flavour enhancer to Europe in 1994.
(11) The square brackets marked with an asterisk denote confidential information which has been deleted from the text.
(12) 1.1.1989 to 31.12.1989: 0 % (GSP) Council Regulation (EEC) No 4257/88 of 19 December 1988 applying generalised tariff preferences for 1989 in respect of certain industrial products originating in developing countries (OJ L 375, 31.12.1988, p. 1.); 1.1.1990 to 31.12.1990: 0 % (GSP) Council Regulation (EEC) No 3896/89 of 18 December 1989 applying generalised tariff preferences for 1990 in respect of certain industrial products originating in developing countries (OJ L 383, 30.12.1989, p. 1); 1.1.1991 to 31.12.1994: 0 % (GSP) Council Regulation (EEC) No 3831/90 of 20 December 1990 applying generalised tariff preferences for 1991 in respect of certain industrial products originating in developing countries (OJ L 370, 31.12.1990, p. 1); 1.1.1995 to 30.4.1998: 0 % (GSP) Council Regulation (EC) No 3281/1994 of 19 December 1994 applying a four-year scheme of generalised tariff preferences (1995 to 1998) in respect of certain industrial products originating in developing countries (OJ L 348, 31.12.1994, p. 1).
(13) OJ C 207, 18.7.1996, p. 4.
(14) See pages 1931 to 1947 and 1961 to 1974 of the Commission's file; see also pages 316 to 319, 1995 and 2174 to 2175 of the Commission's file.
(15) See pages 2170 to 2171 of the Commission's file.
(16) Ajinomoto refers to these other customers (other than [ ]*, [ ]* and [ ]*) as "the general market".
(17) See pages 2170 to 2171 of the Commission's file.
(18) See Takeda's corporate statement, page 2170 of the Commission's file.
(19) See pages 303 and 1962 of the Commission's file.
(20) See pages 2158 to 2161 of the Commission's file.
(21) See Takeda's corporate statement, pages 2170 to 2171 of the Commission's file; see also Daesang's statement, page 1933 of the Commission's file; see also Daesang's supplementary submission, page 1963 of the Commission's file; see also Kyowa's statement, pages 870 and 871 of the Commission's file; see also Cheil's statement, page 304 of the Commission's file; see also Ajinomoto's memorandum, page 2, paragraph 3, page 2445 of the Commission's file.
(22) See Takeda's corporate statement, page 2170 of the Commission's file.
(23) See Daesang's supplementary submission, page 4, or page 1963 of the Commission's file.
(24) See Cheil's statement, page 2, paragraph 2 (page 301 of the Commission's file); Kyowa, page 5, paragraph 1 (page 870 of the Commission's file); Daesang's supplementary statement, pages 1963 and 1964.
(25) Page 5 of Cheil's statement, page 304 of the Commission's file.
(26) See Cheil's statement, page 4, page 303 of the Commission's file.
(27) See Cheil's statement, page 5 (page 304 of the Commission's file); see also pages 1963 to 1964 of the Commission's file.
(28) See Takeda's corporate statement, pages 2170 and 2171 of the Commission's file.
(29) See Takeda's corporate statement, page 2171 of the Commission's file.
(30) See Takeda's corporate statement, page 2170 of the Commission's file.
(31) See pages 1181 to 1182 of the Commission's file.
(32) Referring to the meetings between producers or price-fixing meetings.
(33) See page 2170 of the Commission's file.
(34) See page 869 of the Commission's file.
(35) See page 869 of the Commission's file.
(36) See page 2030 of the Commission's file.
(37) See pages 2256 to 2299 of the Commission's file.
(38) See pages 2264 to 2269 of the Commission's file.
(39) Supplementary submission, see p. 2, point 1.
(40) See page 1962 of the Commission's file; see also pages 986 to 989 of the Commission's file.
(41) See pages 1962 and 990 to 992 of the Commission's file.
(42) Daesang's supplementary statement, p. 3; see also Annexes K and L attached thereto.
(43) See pages 1961 to 1962 of the Commission's file.
(44) See page 4 of Kyowa's statement; page 869 of the Commission's file.
(45) See Cheil's statement, page 2, paragraph 2; page 301 of the Commission's file.
(46) See pages 2557 to 2558 in the Commission's file.
(47) This is contradicted by the facts in the Commission's file. In an internal note of Ajinomoto (see Annex 11 to Ajinomoto's Memorandum of 30 June 2000 or pages 2496 to 2499 of the Commission's file, it is stated that "we [Ajinomoto] as leading manufacturer as well as Takeda, have to take the lead in the price increase race, and therefore it is most likely to run against a head wind. However, it is inevitable that we have to take risks"; see also Annexes 7 and 8 to Ajinomoto's memorandum, pages 2483 to 2488 of the Commission's file).
(48) See Annex 5 of Cheil's 2001 statement, pages 2616 to 2619 of the Commission's file.
(49) Miwon Trading and Shipping Company, a subsidiary of Miwon.
(50) See pages 1963 to 1965 of the Commission's file.
(51) See page 1965 of the Commission's file.
(52) See pages 2259 and 2270 to 2272 of the Commission's file (page 3 and exhibit 2 of Ajinomoto's supplementary statement of 17 December 2001).
(53) See pages 2174, 1009 to 1015, 1016 to 1024 and 1025 to 1032 of the Commission's file, respectively.
(54) See page 1965 of the Commission's file.
(55) See page 1009 of the Commission's file.
(56) See pages 1033 to 1036 of the Commission's file.
(57) See page 2260 of the Commission's file.
(58) See Ajinomoto's supplementary submission of 17 December 2001, page 4, or page 2260 of the Commission's file.
(59) See pages 1037 to 1038 of the Commission's file.
(60) See pages 1039 to 1040 of the Commission's file.
(61) See pages 1041 to 1044 of the Commission's file.
(62) See pages 1045 to 1050 of the Commission's file.
(63) See pages 1051 to 1054 of the Commission's file.
(64) See page 871 of the Commission's file.
(65) See exhibit 7 attached to Ajinomoto's supplementary submission of 17 December 2001 or pages 2285 to 2287 of the Commission's file; see also exhibit 8, or pages 2288 to 2290. The first price quote (USD 28,50) concerns I & G product (mixture of IMP and GMP), whereas second price quote (USD 17,20 to 18) concerns IMP.
(66) See pages 1970 to 1971 of the Commission's file.
(67) See pages 1061 to 1066 of the Commission's file.
(68) See pages 1067 to 1068 of the Commission's file.
(69) See pages 1069 and 1070 to 1071 and 392 to 393 of the Commission's file.
(70) Daesang explains that these figures are related to I & G. A converting rate for prices for IMP and GMP separately is inserted on the bottom of the same target price table.
(71) See Cheil's statement, page 4, No 2.
(72) See pages 1072 to 1073 of the Commission's file.
(73) See pages 1072 to 1073 of the Commission's file.
(74) See Cheil's statement, page 5, No 5.
(75) See pages 395 to 396 of the Commission's file.
(76) See page 1935 of the Commission's file.
(77) See page 306 of the Commission's file.
(78) Daesang submits that the Japanese producers had a premeeting on 24 August 1994 in preparation of the meeting of 25 August 1994 with the two Korean producers (see page 5 of its statement, page 1935 of the Commission's file).
(79) See pages 392 to 393 of the Commission's file.
(80) See pages 397 to 404 of the Commission's file.
(81) See Cheil's statement, page 6 and Annex 5.
(82) See page 307 of the Commission's file.
(83) See pages 1937 and 405 to 410 in the Commission's file.
(84) See page 1075 of the Commission's file.
(85) See pages 1937 to 1939 and 405 to 423 of the Commission's file.
(86) See page 1076 of the Commission's file.
(87) See page 10 of its statement or page 1940 of the Commission's file; see also Annex 12 to its statement, pages 426 to 427 of the Commission's file.
(88) Takeda rightly observed in its reply to the statement of objections that it had confirmed that although the memo refers to 17 March 1996, rather than 7 March, reference is actually made to the meeting held on 7 March. (In fact, the memo also states the conclusions drawn at the meeting, whilst having been drafted on 12 March 1996).
(89) See page 1941 of the Commission's file.
(90) See Annex 5 attached to Cheil's statement, pages 2610 to 2612 of the Commission's file.
(91) See pages 12 and 13 of Daesang's statement, pages 1942 to 1943 of the Commission's file.
(92) See Daesang's statement, page 1943 of the Commission's file.
(93) See Daesang's statement, page 1944 of the Commission's file.
(94) Cheil, Daesang and Ajinomoto.
(95) See page 1945 of the Commission's file.
(96) See page 1944 of the Commission's file.
(97) See pages 2171 to 2172 of the Commission's file.
(98) See page 2146 of the Commission's file.
(99) See page 2146 of the Commission's file.
(100) See page 1946 of the Commission's file.
(101) See pages 2217 to 2220 of the Commission's file.
(102) See Daesang's statement, page 1947 of the Commission's file.
(103) See page 2223 of the Commission's file.
(104) In its reply to the Commission's statement of objections, Ajinomoto contests Takeda's description of these events, as further discussed in detail under "Duration".
(105) See pages 1947 and 1974 of the Commission's file.
(106) See page 2176 of the Commission's file; Ajinomoto contests this description of events, as further discussed in relation to the duration of Ajinomoto's participation in the infringement.
(107) See page 2224 of the Commission's file.
(108) The translation provided by Ajinomoto in its statement of 29 November 2002 reads as follows: "Seems that the head office of each company has studied and tentatively decided on the price to be proposed at the negotiation for the next year contract scheduled for October and November by A, C, MW with [ ]* and by T with [ ]* and [ ]* groups. On the premise that C's and MW's product will continue to enjoy GSP in Europe next year".
(109) See Daesang's statement, pages 1947 to 1948 of the Commission's file.
(110) See page 309 of the Commission's file.
(111) 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 in 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.
(112) See Chapter 5 "Effect upon trade between the Members States and between EEA contracting parties".
(113) [1999] ECR II-931.
(114) [1999] ECR I-4125.
(115) The case-law of the Court of Justice and the Court of First Instance analysed under this heading in relation to the interpretation of the terms "agreements" and "concerted practices" in Article 81 of the Treaty expresses principles well established before the signature of the EEA Agreement. It therefore also applies to these terms in so far as they are used in Article 53 of the EEA Agreement. References to Article 81 of the Treaty therefore also apply to Article 53 of the EEA Agreement.
(116) See judgment of the Court of First Instance in Case T-7/89 Hercules v Commission [1991] ECR II-1711, paragraph 256. See also Case 48/69, Imperial Chemical Industries v Commission [1972] ECR 619, paragraph 64 and Joined Cases 40-48/73, etc. Suiker Unie and others v Commission [1975] ECR 1663.
(117) See also the judgment in PVC II, where it is stated that "[i]n the context of a complex infringement which involves many producers seeking over a number of years to regulate the market between them, the Commission cannot be expected to classify the infringement precisely, for each undertaking and for any given moment, as in any event both forms of infringement are covered by Article [81] of the Treaty".
(118) Judgment of the Court of First Instance in Case T-7/89 Hercules v Commission, paragraph 264.
(119) With regard to Takeda, from 8 November 1988 until 2 June 1998.
(120) With regard to Ajinomoto, from 8 November 1988 until September 1997.
(121) With regard to Daesang, from 19 December 1988 until 31 December 1997.
(122) With regard to Cheil, from (end of) March 1989 until 2 June 1998.
(123) Judgment of the Court of First Instance, in Joined Cases T-25/95 etc Cimenteries CBR and others v Commission [2000] ECR II-491, paragraph 3927. See also judgment in Cases T-374/94, T-375/94, T-384/94 and T-388/94, European Night Services and others v Commission [1998] ECR II-3141, paragraph 136, where the Court has confirmed this in specific relation to price-fixing agreements.
(124) See above, under "Participants".
(125) Judgment in Joined Cases C-215/96 and C-216/96 Bagnasco v Banca popolare di Novale and others [1999] ECR I-135, paragraphs 47 and 48.
(126) Judgment in Case C-306/96 Javico v Yves Saint Laurent [1998] ECR I-1983, paragraphs 16 and 17; see also Joined Cases T-374/94 etc European Night Services and others v Commission [1998] ECR II-3141, paragraph 136.
(127) See judgment in Case T-13/89 ICI v Commission [1992] ECR II-1021, paragraph 304.
(128) Judgment in Joined Cases 209 to 215 and 218/78, Van Landewyck and others v Commission [1980] ECR 3125, paragraph 170.
(129) Miwon Corporation Limited participated in the infringement through its subsidiaries Miwon Japan Inc. and Mitra (Miwon Trading & Shipping Company) as well as directly (see for example Annexes T and U of Daesang's supplementary submission).
(130) Case C-49/92 P, Commission v Anic Partecipazioni SpA, paragraph 145.
(131) See above under "The producers".
(132) See pages 1962 and 986 to 989 of the Commission's file.
(133) See Annex 5 of Cheil's 2001 statement, page 2617 of the Commission's file.
(134) See Annex 5 to Cheil's 2001 statement, page 2618 of the Commission's file.
(135) See Annexes I, J, K, L and M attached to Daesang's supplementary submission; see also Daesang's supplementary submission, page 6 and Takeda's corporate statement, page 7.
(136) See Annex 5 to Cheil's 2001 statement, page 2618 of the Commission's file.
(137) See pages 5 and 6, last paragraph of Cheil's 2001 statement, and pages 9 and 10 of its response to the Commission's statement of objections.
(138) The translation provided by Ajinomoto in its letter of 29 November 2002 reads as follows: "A's head office's basic policy about DEM price is 15 % (minimum 10 %) up adjustment. Met with strong opposition, as expected, at the meeting with European branches in August, but for the time being will start with DEM 53 and attempt to achieve minimum DEM 51 (10 % up)"
(139) In its letter of 29 November 2002, Ajinomoto confirms contesting the facts as established in Takeda's notes and calls into question the probative value of the two Takeda notes as evidence for Takeda's continued participation in the infringement.
(140) See page 309 of the Commission's file.
(141) See recitals 57 and following.
(142) The remaining elements adduced by Ajinomoto are also dealt with under the heading "impact on the market".
(143) See both Daesang's response of 20 September 2002 as well as the summary sent by letter of 27 November 2002.
(144) See page 1076 of the Commission's file.
(145) Case T-308/94 Cascades v Commission [1998] ECR II-925, paragraph 230.
(146) OJ C 9, 14.1.1998, p. 3.
(147) Judgment of the Court of Justice in Commission v Anic, paragraph 83.
(148) See also Daesang's summary statement of 27 November 2002.
(149) See, for instance, paragraph 365 of Commission Decision 2001/418/EC in Case COMP/36.545/F3 Amino Acids (OJ L 152, 7.6.2001, p. 24).
(150) See Annex Z attached to Daesang's supplementary submission, page 1076 of the Commission's file.
(151) Case T-308/94 Cascades SA v Commission, paragraph 230.
(152) Respectively, pages 2147 and 2151 of the Commission's file.
(153) Takeda's statement, page 2173 of the Commission's file.
(154) Case 37.512, not published yet.
(155) Case 36.545 (OJ L 152 7.6.2001, p. 24-72).
(156) Case T-308/94 Cascades SA v Commission, paragraph 230.
(157) OJ C 45, 19.2.2002, p. 3.
