Thursday, 03 March 2011 00:00

Decision 517/2011

Decision on the complaint, dated 26.09.1995, submitted by the company “ELSIMET S.A” against the company “LAVA Mining & Quarrying SA” and its parent company “Heracles General Cement Company S.A.”.

Decision 517/2011
File (PDF) Decision 517/2011
Date of Publication of Decision March, 3rd, 2011
Government Gazette Issue No
Relevant Market

Pumice stone

Subject of the Decision

Anti-competitive agreements, Abuse of Dominant Position

Legal Framework

Article 1 & 2  L. 3959/2011

Operative part of the Decision

Finding an infringement

Complainant(s)

ELSIMET S.A

Respondent(s)

1. LAVA Mining & Quarrying SA

2. Heracles General Cement Company S.A.

Summary of Decision

Following the complaint of the company “ELSIMET S.A” (currently ELKETEK SA) against the company “LAVA Mining & Quarrying SA” (“LAVA” or alleged) and its parent company “Heracles General Cement Company S.A” (“AGET” or alleged) for infringement of articles 1 & 2 of former L. 703/1977, the HCC, taking into consideration all evidence provided, decided that LAVA had and still has essential economic power (as a dominant company) in the market of pumice stone (stone wash)  in total, while the fidelity discounts led LAVA’s customers to depend to LAVA for a significant part of their needs, as they were “forced”, given various discounts offered, to buy the whole portfolio of the relevant products, to the extent that a significant part of their needs was covered by the dominant company LAVA. Moreover, the business plan, formed in 1990, and finally adopted at the end of 1992, to absorb the Italian market, had anti-competitive effects in the relevant market, as AGET’s market share in the pumice stone market (stone wash) rose from around 10 -15% during the period 1987-1992 to about 50% between 1992-1995. All the above violations (abuses and concerted practices) extend to the entire Greek and Italian territory (possibly and the European territory).

Furthermore, the Commission, taking into account the nature and particularities of the case and in particular the long period since the infringements took place (31.12.1995) and the fact that the products in the relevant market, as defined above, are of little to minimal demand and exercising its wide discretion, it decided that it should refrain from imposing a fine on LAVA for the aforementioned infringements.

It therefore decided unanimously the following:

  1. It found an infringement of articles 2 of former L. 703/1977 and 86 of EC Treaty (current articles 2 of L. 3959/2011 and 102 TFEU respectively), on behalf of the alleged company LAVA, for prohibition/ obstruction of parallel exports, for the period from July 1990 (20.07.1990) until 31.12.1995.
  2. It found an infringement of articles 2 of former L. 703/1977 and 86 of EC Treaty (current articles 2 of L. 3959/2011 and 102 TFEU respectively), on behalf of the alleged company LAVA, for provision of fidelity discounts, for the period from July 1991 (05.07.1991) until 31.12.1992.
  3. It found an infringement of articles 1 of former L. 703/1977 and 85 of EC Treaty (current articles 1 of L. 3959/2011 and 101 TFEU respectively), on behalf of the alleged company LAVA, for prohibition/ obstruction of parallel exports, or/and for prohibition/ restriction of passive sales, for the period from July 1990 (20.07.1990) until 31.12.1995.
  4. It obliged the company LAVA to terminate the infringements, found in the above reasoning, of articles 1 & 2 of former L. 703/1977 and 101 and 102 TFEU.
  5. It recommended to the alleged company LAVA to omit similar behaviors, as described in points 1 and 2, which were exposed during the periods from July 1990 (20/07/1990) until 31.12.1995 and from July 1991 until 31.12.1992.
  6. It threatened the above company, in case of possible continuation of the infringements of articles 1 & 2 of former L. 703/1977 and 101 and 102 TFEU, to impose separately for each violation a fine equal to 3% of the gross income of the company of the previous to the infringement’s year.
Judicial Means Appeal.
Decisions by the Court of Appeal of Athens (Administrative Division) ACAA 3793/2012, Council of State 1976/2015
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