C 314/8 EN Official Journal of the European Union 6.9.2018
Summary of Commission Decision of 21 February 2018 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case AT.40009 — Maritime Car Carriers) (notified under document C(2018) 983) (Only the English text is authentic) (2018/C 314/09)
On 21 February 2018, the Commission adopted a Decision relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA agreement. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003 (1), the Commission herewith publishes the names of the parties and the main content of the Decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business secrets.
1. INTRODUCTION (1) On 21 February 2018 the Commission adopted a Decision relating to a single and continuous infringement of Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement.
(2) The Decision is addressed to the following entities (also referred to as the ‘parties ’ or individually as the ‘party’):
a. Mitsui O.S.K. Lines, Ltd, MOL (Europe Africa) Ltd (former name during the whole period of infringement: Mitsui O.S.K. Bulk Shipping (Europe) Ltd) and Nissan Motor Car Carrier Co., Ltd (together referred to as ‘MOL’);
b. Kawasaki Kisen Kaisha, Ltd (hereinafter referred to as ‘“K” Line’);
c. Nippon Yusen Kabushiki Kaisha (hereinafter referred to as ‘NYK’);
d. Wallenius Wilhelmsen Logistics AS (‘WWL’, if referred to as a separate legal entity); EUKOR Car Carriers, Inc. (‘EUKOR’, if referred to as a separate legal entity) (the two of them together being referred to as ‘WWL and EUKOR’) and their parent companies Wallenius Lines AB (Walleniusrederierna AB), Wallenius Logistics AB, Wallenius Wilhelmsen Logistics ASA (former name: Wilh. Wilhelmsen ASA) and Wilhelmsen Ships Holding Malta Limited (WWL and EUKOR and their parent companies being hereinafter together referred to as the ‘WWL and EUKOR undertaking’);
e. Compañía Sudamericana de Vapores SA (hereinafter referred to as ‘CSAV’).
2. DESCRIPTION OF THE CASE 2.1. The services concerned (3) The service concerned by the infringement is the provision of deep-sea (interoceanic or intercontinental) car carriage of new motor vehicles: cars, trucks and high and heavy vehicles on various routes. The deep sea car carriage services includes the loading, shipment and unloading of new motor vehicles. The Decision focuses on the deep sea car carriage services which started or ended in the EEA.
2.2. Procedure (4) Following an immunity application submitted by MOL in September 2012, the Commission conducted unannounced inspections under Article 20(4) of Regulation (EC) No 1/2003.
(5) After the inspections, the Commission received leniency applications, in the following order, from: (i) ‘K’ Line; (ii) CSAV; (iii) NYK; and (iv) WWL and EUKOR. In addition, the Commission sent out several rounds of requests for information.
(1) OJ L 1, 4.1.2003, p. 1. 6.9.2018 EN Official Journal of the European Union C 314/9
(6) The Commission initiated proceedings on 12 October 2016. Settlement meetings between the Commission and each party took place between November 2016 and October 2017. Subsequently, all parties submitted their formal request to settle pursuant to Article 10(2) of Regulation (EC) No 773/2004 (1).
(7) On 8 December 2017, the Commission adopted the Statement of Objections addressed to the parties. All parties replied to the Statement of Objections by confirming that it reflected the contents of their settlement submissions and that they remained committed to following the settlement procedure.
(8) The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 19 February 2018.
2.3. Summary of the infringement (9) The Decision concerns a single and continuous infringement covering the deep sea shipments of new motor vehicles to and from the EEA, in order to maintain the existing balance of business between the carriers and to avoid price decline.
(10) The cartel consisted of a series of anti-competitive contacts relating to price coordination, allocation of business and customers and reduction of capacity. The parties engaged in such types of conduct in the pursuit of an identical object, namely restricting competition on the market and maintaining the status quo, i.e. that the car carriers would keep their respective businesses for certain customers and/or certain routes. The parties also aimed to preserve their position in the market and to maintain or increase prices, including by coordinating to resist requests for price reduction from certain customers.
(11) The parties' conduct followed the so-called ‘rule of respect’, according to which shipments of new motor vehicles related to already existing businesses on certain routes for certain customers would continue to be carried by the traditional carrier (the incumbent).
(12) The parties engaged to varying degrees in collusive contacts, during which they:
a. coordinated rates for certain customers (CSAV was involved in this type of conduct only as of June 2011). In addition, other participants than CSAV were engaged in coordination concerning the BAF (Bunker Adjustment Factor) and CAF (Currency Adjustment Factor) for certain routes and for certain customers;
b. allocated various Requests for Quotations issued by vehicle manufacturers and the business of certain customers;
c. discussed and coordinated capacity reductions (except for CSAV); and
d. exchanged commercially sensitive information.
(13) The different types of cartel contacts consisted of the following: Four Carriers Meetings (‘FCMs’) (attended by the representatives of MOL, NYK, ‘K ’ Line and WWL), trilateral meetings (‘3J meetings’) (attended by the representatives of MOL, ‘ K’ Line and NYK), and bilateral contacts.
(14) CSAV did not participate in the FCMs, the 3J meetings, or in the actions concerning capacity reduction. With regard to the EEA, CSAV's participation was limited to specific routes to and from South America and Mexico.
(15) EUKOR, as a separate legal entity, did not participate in the FCMs or in the 3J meetings, discussions in relation to CAF, or in actions concerning capacity reduction, and it only applied the rule of respect to certain customers on certain routes where it was active. However, as EUKOR formed a single undertaking with WWL during the entire period of the infringement, the Commission came to the conclusion that EUKOR's actions were imputable to that single undertaking (the WWL and EUKOR undertaking).
(1) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18). C 314/10 EN Official Journal of the European Union 6.9.2018
2.4. Duration (16) The cartel is deemed to have started on 18 October 2006 for MOL, ‘K’ Line, NYK, CSAV and WWL and EUKOR (1). The cartel ended for MOL on 24 May 2012, the day on which MOL applied for immunity. The participation of ‘K’ Line, NYK, CSAV and WWL and EUKOR in the cartel ended on 6 September 2012, the day on which the Commission started unannounced inspections in this case.
2.5. Remedies (17) The Decision applies the 2006 Guidelines on Fines (2).
2.5.1. Basic amount of the fine (18) The Commission determined the value of sales as the annual average of the value of deep sea carriage services of new motor vehicles (cars, trucks and high and heavy vehicles) made during the whole infringement period. In order to reflect that a part of the services were performed outside of the EEA and, thus, a certain part of the harm fell outside the EEA, the Commission Marittimi applied a 50 % reduction of the basic amount for each party.
(19) Considering the multifaceted nature of the infringement (price coordination and customer allocation) and its geographic scope (EEA-wide), the percentage for the variable amount of the fines as well as the additional amount is set at 17 % of the value of sales for the infringement.
(20) The variable amount is multiplied by the number of years or by fractions of the year respectively of the parties' individual participation in the infringement in order to take fully into account the duration of the participation for each undertaking in the infringement individually. This duration multiplier is calculated on the basis of calendar days.
2.5.2. Adjustment to the basic amount (21) Taking into account CSAV's limited role and its lack of awareness of the whole extent of the infringement, the Commission granted CSAV a reduction of 20 % of its fine on the basis of mitigating circumstances.
2.5.3. Application of the 10 % turnover limit (22) In the present case, the fine of the WWL and EUKOR undertaking would have exceeded the 10 % turnover limit. Therefore, the fine of the WWL and EUKOR undertaking was reduced prior to the application of the leniency and settlement reductions in accordance with point 32 of the Settlement Notice.
2.5.4. Application of the 2006 Leniency Notice (23) MOL was the first to submit information and evidence meeting the conditions of point 8(a) of the 2006 Leniency Notice and is thus granted immunity from fines.
(24) ‘K’ Line was the first undertaking to meet the requirements of points 24 and 25 of the 2006 Leniency Notice and is granted a reduction of 50 %.
(25) CSAV was the second undertaking to meet the requirements of points 24 and 25 of the 2006 Leniency Notice and is granted a reduction of 25 %.
(26) NYK was the third undertaking to meet the requirements of points 24 and 25 of the 2006 Leniency Notice and is granted a reduction of 20 %.
(27) WWL and EUKOR were the fourth to meet the requirements of points 24 and 25 of the 2006 Leniency Notice and are awarded a reduction of 20 %.
2.5.5. Application of the Settlement Notice (28) As a result of the application of the Settlement Notice, the amount of the fines imposed on the addressees of the Decision is further reduced by 10 %.
(1) 18 October 2006 was the earliest date, from which the Commission could exercise its jurisdiction to sanction the conduct of the parties following the entry into force of Council Regulation (EC) No 1419/2006 of 25 September 2006 repealing Regulation (EEC) No 4056/86 on 18 October 2006, which established the application of competition law to all maritime transport services, including to cabotage and international tramp services. (2) OJ C 210, 1.9.2006, p. 2. 6.9.2018 EN Official Journal of the European Union C 314/11
3. CONCLUSION (29) The following fines were imposed pursuant to Article 23(2) of Regulation (EC) No 1/2003:
a. Mitsui O.S.K. Lines, Ltd, MOL (Europe Africa) Ltd and Nissan Motor Car Carrier Co., Ltd jointly and severally liable: EUR 0
b. Kawasaki Kisen Kaisha, Ltd: EUR 39 100 000
c. Nippon Yusen Kabushiki Kaisha: EUR 141 820 000
d. Wallenius Lines AB (Walleniusrederierna AB), Wallenius Logistics AB, Wallenius Wilhelmsen Logistics ASA (former name: Wilh. Wilhelmsen ASA), Wilhelmsen Ships Holding Malta Limited, Wallenius Wilhelmsen Logistics AS and EUKOR Car Carriers, Inc. jointly and severally liable: EUR 207 335 000
e. Compañía Sudamericana de Vapores SA: EUR 7 033 000