Judgments nº T-462/07 of The General Court, September 16, 2013

• Resolution Date: September 16, 2013
• Issuing Organization: The General Court
• Decision Number: T-462/07

(Competition – Agreements, decisions and concerted practices – Spanish market for penetration bitumen – Decision finding an infringement of Article 81 EC – Annual market-sharing and price-fixing arrangements – Evidence of participation in the cartel – Calculation of the amount of the fine)

In Case T‑462/07,

Galp Energía España, SA, established in Alcobendas (Spain),

Petróleos de Portugal (Petrogal), SA, established in Lisbon (Portugal),

Galp Energia, SGPS, SA, established in Lisbon,

represented by M. Slotboom and G. Gentil Anastácio, lawyers,

applicants,

v

European Commission, represented by F. Castillo de la Torre, acting as Agent, assisted initially by J. Rivas Andrés, lawyer, and by M. Heenan Bróna, Solicitor, and subsequently by J. Rivas Andrés, lawyer,

defendant,

APPLICATION, principally, for annulment in whole or in part of Commission Decision C(2007) 4441 final of 3 October 2007 relating to a proceeding under Article 81 [EC] (Case COMP/38.710 – Bitumen (Spain)) and, in the alternative, for reduction of the fine imposed on the applicants,

THE GENERAL COURT (Eighth Chamber),

composed of L. Truchot (Rapporteur), President, M.E. Martins Ribeiro and A. Popescu, Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 24 January 2013,

gives the following

Judgment

Background to the dispute

1 By Decision C(2007) 4441 final of 3 October 2007 relating to a proceeding under Article 81 [EC] (Case COMP/38.710 – Bitumen Spain), a summary of which is published in the Official Journal of the European Union of 29 December 2009 (OJ 2009 C 321, p. 15; ‘the contested decision’), the Commission of the European Communities found that the 13 companies to which that decision was addressed had participated in a complex of market-sharing and price-coordinating agreements in the road construction penetration bitumen business in Spain (excluding the Canary Islands) and imposed fines of between EUR 6 435 000 and EUR 83 850 000 on 10 of those companies.

2 Those 10 companies brought actions against that decision, by applications lodged at the Court Registry between 18 and 20 December 2007:

– Repsol Lubricantes y Especialidades, SA, formerly Repsol Lubricantes YPF y Especialidades, SA, Repsol Petróleo, SA and Repsol, SA, formerly Repsol YPF, SA (together ‘Repsol’), in Case T‑496/07;

– Productos Asfálticos (PROAS), SA, in Case T‑495/07;

– Compañía Española de Petróleos (CEPSA), SA, in Case T‑497/07;

– Nynäs Petroleum AB and Nynas Petróleo, SA (together ‘Nynäs’), in Case T‑482/07;

– Galp Energía España, SA, Petróleos de Portugal (Petrogal), SA and Galp Energia, SGPS, SA (together ‘Petrogal’, ‘Galp’ or ‘the applicants’), in the present case.

1. Relevant market

   3 The product concerned by the infringement is penetration bitumen used for road construction. Bitumen is a by-product produced during the distillation of specific heavy crude oils. Around 85% of the bitumen produced in the European Union is used for road construction and maintenance, as an adhesive in the production of asphalt where it is used to bind the stones together. The remaining 15% is used in other fields of construction, for example in the construction of airport runways and car parks, and in industrial applications, such as roofing and pipe coating.

   4 Approximately 80% of the bitumen used for road construction and maintenance is not subject to further processing: this is called penetration bitumen. The remaining 20% of bitumen used in road construction and maintenance is accounted for by bitumen which is further processed, such as bitumen emulsions, which are produced by mixing penetration bitumen with water using an emulsifying agent (used in road maintenance more than in construction), and modified bitumen, which is obtained by mixing penetration bitumen with a chemical product, usually polymers, in order to enhance its performance (polymer modified bitumen or PMB) (recitals 4, 9 et seq. to the contested decision).

   5 Recital 15 to the contested decision defines the relevant market as being penetration bitumen, without any further processing, used for road construction and maintenance (‘penetration bitumen’ or ‘bitumen’).

   6 That definition of the relevant market is confirmed as follows by recital 513 to the contested decision:

   ‘… this case concerns a cartel between sellers of the same product in the same business area, namely penetration bitumen in Spain …’.

   7 The value of the Spanish penetration bitumen market is estimated at EUR 286 400 000 for 2001, the last full year of the infringement (recital 67 to the contested decision).

   2. Undertakings in question

   8 In Spain there are, on the one hand, three bitumen producers, Repsol, CEPSA‑PROAS and the BP group, of which BP plc is the holding company and of which BP España, SA and BP Oil España, SA are subsidiaries operating in Spain (together ‘BP’) and, on the other hand, a number of importers, including Nynäs and Petrogal (recitals 63 and 64 to the contested decision).

   Repsol Group

   9 Repsol Productos Asfálticos, SA (RPA) became Repsol YPF Lubricantes y Especialidades on 12 December 2001 (‘RPA/Rylesa’). RPA/Rylesa was owned 99.99% from 1991 to 2002 by Repsol Petróleo, itself a subsidiary owned 99.97% by Repsol YPF, the ultimate parent company of the Repsol group. That international group of oil and gas companies is present mainly in Spain and Latin America.

   10 RPA/Rylesa produces and markets bitumen products. One of Repsol Petróleo’s activities is the production of penetration bitumen and the sale thereof to RPA/Rylesa in order to be marketed.

   11 Two other companies of the Repsol Group, Petróleos del Norte, SA (‘Petronor’) and Asfalnor, SA, carry out a penetration bitumen‑related activity in Spain.

   12 In 1991, Petronor was owned 56.19% by Repsol YPF, and this shareholding increased to 85.98% on 31 December 1992. Asfalnor was owned 60% by Petronor in 1991 and, in April 1992, companies of the Repsol group owned 80% of it (60% by Petronor and 20% by Repsol YPF) (recital 395 to the contested decision).

   13 Petronor produces bitumen which, between 1990 and 1998, it sold to Asfalnor and, on occasions, to RPA/Rylesa, in order to be marketed. Since 1999, Petronor has been selling bitumen directly to third parties.

   14 Asfalnor marketed bitumen between 1990 and 1998. It bought bitumen from Petronor and, on occasions, from RPA/Rylesa. Since 1999, Asfalnor has been acting as Petronor’s agent.

   15 RPA/Rylesa and Petronor achieved a turnover of EUR 97 500 000 in Spain from their sales of penetration bitumen to third parties in 2001, that is 34.04% of the relevant market. The consolidated total turnover of the Repsol Group was EUR 51 355 000 000 in 2006, the year preceding the adoption of the contested decision (recitals 16 to 26 and 67 to the contested decision).

   CEPSA-PROAS

   16 CEPSA is an international group of companies in the energy sector whose shares are publicly listed and is present in several countries. PROAS, which has been a wholly-owned subsidiary of CEPSA since 1 March 1991, markets bitumen produced by CEPSA and produces and markets other bitumen products (recital 31 to the contested decision).

   17 PROAS achieved a turnover in Spain of EUR 90 700 000 from its sales of penetration bitumen to third parties during the business year 2001, that is 31.67% of the relevant market. The consolidated total turnover of CEPSA in 2006 was EUR 18 474 000 000 (recitals 44 and 67 to the contested decision).

   BP

   18 BP Oil España achieved a turnover in Spain of EUR 43 500 000 from its sales of penetration bitumen to third parties during the business year 2001, that is 15.19% of the relevant market. The consolidated total turnover of BP in 2006 was EUR 211 776 000 000 (recitals 35, 42 and 43 to the contested decision).

   Nynäs Group

   19 The Nynäs group, of which Nynäs Petroleum AB, a Swedish company, is the ultimate holding company, produces and sells bitumen internationally. Nynas Petróleo markets bitumen in Spain (recitals 46 and 53 to the contested decision).

   20 From 22 May 1991 until 1999 Nynas Petróleo was wholly owned by the holding company Nynäs International BV. During the same period Nynäs International BV was itself a wholly-owned subsidiary of Nynäs Petroleum (recital 438 to the contested decision).

   21 In 1999 Nynäs Petroleum acquired from Nynäs International the entire issued share capital of Nynas Petróleo, which remained a wholly-owned subsidiary of Nynäs Petroleum until 2003 (recital 439 to the contested decision). Nynäs International was wound up on 12 June 2003. Following its dissolution its share capital was repaid to Nynäs Petroleum, which thus became its economic successor and took over liability for the infringement previously committed by Nynäs International, which had ceased to exist as a separate legal entity (recital 440 to the contested decision).

   22 The Nynäs group has no production facilities in Spain but has one bitumen depot in Villagarcía de Arosa, in Galicia (Spain). Nynas Petróleo has its headquarters in Madrid (Spain) and its business activity is the sale and marketing of bitumen in Spain (recital 53 to the contested decision).

   23 Nynas Petróleo achieved a turnover in Spain of between EUR 14 000 000 and EUR 15 000 000 from its sales of penetration bitumen to third parties during the business year 2001, that is 4.89% to 5.24% of the relevant market. The consolidated total turnover of the Nynäs group in 2006 was EUR 1 941 000 000 (recitals 54 and 67 to the contested decision).

   Petrogal Group

   24 Between 1990 and 2003 the shares in Galp Energía España (formerly Petrogal Española, SA) were held as to 89.29% by Petróleos de Portugal and as to 10.71% by Tagus, RE, an insurance company which was itself controlled as to 98% by Petróleos de Portugal. Since 2003 Galp Energía España has been a wholly-owned subsidiary of Petróleos de Portugal, which has been a wholly-owned subsidiary of Galp Energia, SGPS since 22 April 1999 (recitals 56, 57, 59...