|
Decision 807/2023 | |
|---|---|
| File (PDF) | Decision 807/2023 |
| Date of Issuance of Decision | January 19th, 2023 |
| Issue Number of Government Gazette | |
| Relevant Market |
Production and marketing of Greek Monohydrate/Diasporic Bauxite |
| Subject of the Decision | Decision on: a) the complaint under ref. no. 6633/23.09.2016 lodged by ALUMINIUM OF GREECE S.A., which was merged through acquisition by MYTILINEOS S.A. - GROUP OF COMPANIES against the companies IMERYS BAUXITE GREECE SINGLE MEMBER S.A. and IMERYS INDUSTRIAL MINERALS GREECE SINGLE MEMBER S.A., (now operating as “MYTILINEOS S.A”) against the companies a) EUROPEAN BAUXITES SA (now operating under the name “IMERYS BAUXITE GREECE SINGLE MEMBER S.A” and the distinctive title “IMERYS BAUXITE S.A”) and b) KERNEOS S.A. (now operating under the name IMERYS INDUSTRIAL MINERALS GREECE SINGLE MEMBER S.A” and the distinctive title “IMERYS GREECE S.A”), active in the bauxite production and supply market, concerning alleged infringements of Articles 2 of L. 3959/2011 and/or and 102 of the Treaty on the Functioning of the European Union (TFEU) and b) on the ex officio review of compliance of the company “IMERYS BAUXITE GREECE SINGLE MEMBER S.A” with HCC Decision No. 690/2019 on the Adoption of Interim Measures, according to Article 25(5) of L. 3959/2011. |
| Legal Framework |
Articles 2 and 25(5) of L. 3959/2011 |
|
Operative part of the Decision |
Α.1 Finds, by majority, that “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.” infringed Article 2 of Law 3959/2011, according to the grounds of the Decision, by implementing a practice relating to the total and/or partial refusal to supply and interruption of a long-term business relationship, for the period extending from 01.01.2017 to 31.12.2019. Α.2 Orders, by majority, the company “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.” (formerly “ELMIN BAUXITES S.A.): Α.2.1 To bring the infringement found of Article 2 of L. 3959/2011 to an end. Α.2.2 To refrain in future from the above infringement of Article 2 of L. 3959/2011. Α.3 Imposes, by majority, on “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.” (formerly “ELMIN BAUXITES S.A.) a fine amounting to one million three hundred seventy two thousand three hundred sixty nine euros (€1,372,369) for the aforementioned infringement of Article 2 of L. 3959/2011. Α.4 Threatens, by majority, the company “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.” with a fine of ten thousand euros (€10,000) for each day of delay in complying with the above decision, from the date of its publication, i.e. for each day of repetition of the above established infringement of Article 2 of Law 3959/2011, if any such repetition is established by a subsequent decision of the HCC. Β.1 Finds, by majority, the non-compliance of the company “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.” (formerly “ELMIN BAUXITES S.A.) with points II.a and II.b of the grounds of the interim measures Decision no. 690/2019 of the Hellenic Competition Commission, according to the grounds of the Decision. Β.2 Imposes, by majority, a fine on the company “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.” amounting to five hundred and sixty thousand euros (€560,000) for the company's non-compliance with points II.a and II.b of the grounds 690/2019 of the interim measures Decision no. 690/2019 of the Hellenic Competition Commission. C. Unanimously finds the non-violation of Article 2 of Law 3959/2011 regarding the alleged practices of a) abusive " excessive pricing", b) " monopolistic inefficiency" and c) "structural abuse" by the company “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.” (formerly "ELMIN BAUXITES S.A."), for the period from 01.01.2017 to 31.12.2019. |
| Company(ies) concerned |
1. “MYTILINEOS S.A. - GROUP OF COMPANIES” 2. “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.” 3. “IMERYS INDUSTRIAL MINERALS GREECE SINGLE MEMBER S.A.” |
| Summary of Decision |
In the light of the evidence in the case file and the hearing of the case, as well as Decision no. 690/2019, the HCC establishes, by majority, the existence of disruptions in bauxite supply over specific time periods within the 3-year period from 2017 to 2019, by "IMERYS BAUXITE GREECE SINGLE MEMBER S.A." vis-à-vis “MYTILINEOS S.A. - GROUP OF COMPANIES”, which is IMERYS’s most important customer in the context of a long-standing and stable trading relationship, and these disruptions constitute an abuse of a dominant position according to Article 2 of L. 3959/2011 without any justification on objective grounds. In the light of the evidence in the case file and the parties’ submissions, the HCC also finds, by majority, that “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.” partially refused to supply “MYTILINEOS S.A. - GROUP OF COMPANIES” with bauxite, as required under the conditions II.a and II.b of the grounds of the Interim Measures Decision no. 690/2019 and, therefore, did not fully comply with that Decision. In this regard, the Hellenic Competition Commission held, by majority, that "IMERYS BAUXITE GREECE SOLE HOLDING COMPANY" did not fully comply with the second part of the operative part of the Interim Measures Decision on of the Competition Commission as no agreement was concluded between the parties concerning bauxite supply, able to ensure the smooth operation of “MYTILINEOS S.A. - GROUP OF COMPANIES” and the downstream market. |
| Judicial Means | - |
| Decisions by the Court of Appeal of Athens (Administrative Division) | - |
| See Press Release | HERE |
