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Brussels, 5th December 2006

Competition: Commission welcomes Court of First Instance judgment in Westfalen case (Dutch industrial gases cartel)

The European Commission welcomes today’s judgment by the European Court of First Instance dismissing the action by Westfalen Gassen Nederland BV against the Commission’s July 2002 decision against a Dutch industrial gases cartel (case T-303/02). In particular, the CFI found that the Commission established to the requisite legal standard that the applicant participated in the cartel infringement and that the applicant has not proved that it distanced itself properly from the collusive meetings. It also found that the Commission determined the amount of the fine for the applicant in accordance with the Guidelines on fines and that the fine was neither discriminatory nor disproportionate.

On 24 July 2002 the Commission fined seven producers of industrial and medical gases a total of € 25.72 million for participating in a secret cartel in the Netherlands between September 1993 and December 1997. Westfalen Gassen Nederland BV was fined a total of € 0.43 million (see IP/02/1139). Westfalen Gassen Nederland BV and NV Hoek Loos challenged the Commission’s decision before the European Court of First Instance (The CFI upheld the Commission's decision in T-304/02 Hoek Loos on 4 July 2006 see MEMO/06/625.

An amended decision was adopted subsequently to reduce the duration of the infringement for Westfalen, therefore imposing a definite fine of €0.41 million on that company.

The judgment of the Court of First Instance

Westfalen Gassen Nederland BV brought an action against the Commission before the Court of First Instance on 4 October 2002, claiming that the Court should annul the decision in so far as it concerned the fine imposed on it or, in the alternative, reduce the fine imposed on Westfalen. The main grounds on which the company bases its application are that the Commission did not prove the existence of an infringement as far as Westfalen is concerned, because the evidence as such is not conclusive and Westfalen never committed to the infringement but distanced itself from it. Westfalen also argued that the fine imposed on it was discriminatory and disproportional.

The Court of First Instance rejected all these claims, upheld the Commission’s 2002 decision (including the €0.41 million fine in its entirety) and ordered Westfalen Gassen Nederland BV to pay its own as well as three quarters of the Commission's costs of the action before the CFI (due to the fact that following Westfalen's application the Commission had adopted an amended decision with a reduction in duration for the applicant).

The cartel

The illicit arrangement concerned the supply of several gases such as oxygen, nitrogen, carbon dioxide and argon in the Dutch industrial gases market, which – due to imports and exports of these products to and from Member States – had an effect on intra-Community trade.

Leading suppliers of industrial gases in the Netherlands held regular meetings to discuss and fix price increases and other trading conditions for cylinder gases – and sometimes bulk – supplied to their customers. They agreed not to deal with each other’s existing customers for a period of 2-5 months every year in order to implement these price increases and to respect minimum prices and other trading conditions when offering gases in cylinders and in bulk to new customers.

The products include oxygen, nitrogen, carbon dioxide, argon, argon mixtures and acetylene supplied in cylinder and liquid (bulk) form and are used in several industries and manufacturing processes. The largest volumes of industrial gases are used for producing, cutting and welding metals and in the chemical industry. In the case of oxygen, nitrogen, carbon dioxide and various mixtures of gases for example they can also be used for medical purposes, especially in hospitals, namely for breathing, anaesthetics, laboratory works and numerous other applications.

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