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.