Summary of Commission Decision

of 27 September 2019

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.40127 – Canned vegetables)

(notified under document C(2019) 6903)

(Only the English text is authentic)

(Text with EEA relevance)

(2020/C 434/08)

On 27 September 2019, 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)

The Decision relates to a single and continuous infringement of Article 101(1) of the Treaty and Article 53(1) of the EEA Agreement. The infringement consisted in price coordination, market sharing and exchange of sensitive information in relation to the sales of certain type of canned vegetables to retailers and/or the food service industry in the EEA.

(2)

The Decision is addressed to the following legal entities (referred to collectively as ‘addressees’ or individually as ‘addressee’): Bonduelle SCA, Bonduelle SA and Bonduelle Europe Long Life SAS (together, ‘Bonduelle’); Coroos International NV, Coroos Beheer BV and Coroos Conserven BV (together, ‘Coroos’); and Centrale Coopérative Agricole Bretonne SCA, Compagnie Générale de Conserve SAS and GIE Groupe d’aucy (together, ‘Groupe CECAB’).

2.   CASE DESCRIPTION

2.1.   Procedure

(3)

Following an immunity application by Bonduelle on 11 June 2013, the Commission carried out unannounced inspections in October 2013 at the premises of various producers of canned vegetables. Groupe CECAB and Coroos applied for reductions of fines pursuant to the Commission’s Leniency Notice (2), respectively on 20 November 2013 and 13 February 2014.

(4)

On 17 February 2017, the Commission initiated proceedings under Article 11(6) of Regulation (EC) No 1/2003 and Article 2(1) of Commission Regulation (EC) No 773/2004 (3) against the addressees of the Decision and another party with a view to engaging in settlement discussions with them under the Settlement Notice (4). Settlement discussions with the addressees took place between March 2017 and June 2019. Each addressee then submitted its formal request to settle pursuant to Article 10a(2) of Regulation (EC) No773/2004.

(5)

On 25 July 2019, the Commission adopted a statement of objections addressed to Bonduelle, Coroos and Groupe CECAB. The addressees 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.

(6)

The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 25 September 2019.

(7)

The Commission adopted the Decision on 27 September 2019.

2.2.   Summary of the infringement

(8)

The Decision concerns an infringement relating to the sale of certain types of canned vegetables to retailers and/or the food service industry.

(9)

The addressees participated in three closely inter-related horizontal agreements through which they coordinated their commercial conduct on the market: an agreement covering private label sales (sold under retailers’ brands) of canned vegetables such as green beans, peas, peas and carrots mix, and vegetable macedoine to retailers in the EEA, in particular in Belgium, Germany, France and the Netherlands; an agreement covering private label sales (sold under retailers’ brands, as above) of canned sweetcorn to retailers in the EEA, in particular in Belgium, Germany, Denmark, Ireland, Spain, France, Italy, Luxembourg, the Netherlands, Austria, Portugal, Norway, Finland, Sweden and the United Kingdom; and an agreement covering both own brands and private label sales of all types of canned vegetables (5), including mixes of vegetables and canned vegetable preparations and dishes (but excluding mixes, salads and preparations that do not have vegetables as their main ingredient) to retailers (6) and to the food service industry in France. Coroos participated only in the first agreement while Bonduelle and Groupe CECAB participated in all three.

(10)

The infringement consisted in the fixing of selling prices (price increases, minimum prices, target prices) and the coordination of pricing policy and pricing structure; the allocation of volume quotas and market shares; the allocation of customers and markets; the coordination of tenders and price offers to be submitted to retailers and/or the food service industry; the coordination of other sales conditions and rebates, including marketing strategy and promotional policy; and the exchange of commercially sensitive information.

(11)

The infringement covered the entire EEA and lasted from 19 January 2000 until 1 October 2013.

2.3.   Addressees and duration

(12)

The addressees of the Decision are held liable for the infringement for the following durations: Addressees Duration Bonduelle SCA, Bonduelle SA and Bonduelle Europe Long Life SAS 19 January 2000-11 June 2013 Coroos International NV, Coroos Beheer BV and Coroos Conserven BV 19 January 2000-1 October 2013 Centrale Coopérative Agricole Bretonne SCA, Compagnie Générale de Conserve SAS and GIE Groupe d’aucy 19 January 2000-1 October 2013

2.4.   Remedies

(13)

The Decision applies the 2006 Fines Guidelines (7). With the exception of Bonduelle SCA, Bonduelle SA and Bonduelle Europe Long Life SAS, the Decision imposes fines on all the entities listed under point (12) above.

2.4.1.   Basic amount of the fine

(14)

In setting the fines, the Commission took into account the average of each addressee’s sales of the canned vegetables covered by the cartel within the EEA for the period 2000-2013, the fact that price coordination and market sharing are among the most harmful restrictions of competition, the duration of the infringement, the fact that the infringement covered the entire EEA and that it was thoroughly implemented, and an additional amount to deter undertakings from entering into such practices.

2.4.2.   Adjustments to the basic amount

(15)

The Commission did not apply any aggravating or mitigating circumstances.

2.4.3.   Application of the 10 % turnover limit

(16)

For all addressees, the basic amount of the fine (before the application of the leniency and settlement reductions) exceeded 10 % of their total worldwide turnover in the business year preceding the date of the Decision. The basic amounts of the fines were therefore capped to those limits.

2.4.4.   Application of the 2006 Leniency Notice

(17)

The Commission granted Bonduelle full immunity from fines. The Commission granted Groupe CECAB a 30 % reduction of its fine and granted Coroos a 15 % reduction of its fine.

2.4.5.   Application of the Settlement Notice

(18)

As a result of the application of the Settlement Notice, the amount of the fines imposed on Groupe CECAB and Coroos was further reduced by 10 %.

2.4.6.   Inability to pay

(19)

One addressee submitted an application for a reduction of its fine on the grounds of inability to pay. The Commission assessed this application and concluded that it should be accepted.

3.   CONCLUSION

(20)

The following fines were imposed pursuant to Article 23(2) of Regulation (EC) No 1/2003: (a) Bonduelle SCA, Bonduelle SA and Bonduelle Europe Long Life SAS, jointly and severally: EUR 0; (b) Coroos International NV, Coroos Beheer BV and Coroos Conserven BV, jointly and severally: EUR 13 647 000; (c) Centrale Coopérative Agricole Bretonne SCA, Compagnie Générale de Conserve SAS and GIE Groupe d’aucy, jointly and severally: EUR 18 000 000.

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(1)  OJ L 1, 4.1.2003, p. 1.

(2)  Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ C 298, 8.12.2006, p. 17).

(3)  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), as amended by Commission Regulation (EC) No 622/2008 (OJ L 171, 1.7.2008, p. 3) and by Commission Regulation (EU) 2015/1348 (OJ L 208, 5.8.2015, p. 3).

(4)  Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ C 167, 2.7.2008, p. 1).

(5)  Except canned tomatoes, mushrooms, condiments or olives, and canned products having these as main ingredients.

(6)  Sales of private label products to retailers concerned only the products not covered by the other two agreements.

(7)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ C 210, 1.9.2006, p. 2).