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[2012] ZACT 9
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Competition Commission v Schenker South Africa (Pty) Ltd (96/CR/Nov11) [2012] ZACT 9 (1 February 2012)
COMPETITION TRIBUNAL OF SOUTH
AFRICA
Case No.:96/CR/Nov11
In the matter between:
THE COMPETITION COMMISSION
….....................................................................
.
APPLICANT
And
SCHENKER SOUTH AFRICA (PTY) LTD
…..............................................
RESPONDENT
Panel
A
Wessels (Presiding Member), A Ndoni (Tribunal Member) and M Mokuena
(Tribunal Member)
Heard on : 18 January 2012
Order issued on : 01 February 2012
ORDER
The Tribunal hereby confirms the order as agreed to and
proposed by the Competition Commission and the respondent, annexed
hereto
marked "A".
Presiding Member
A. wessels
Concurring:
A
Ndoni and M Mokuena
THE COMPETITION TRIBUNAL OP SOUTH AFRICA
CC Case No. 2007OCT3236
CT 96/CR/NOV11
In
the matter between:
THE
COMPETITION COMMISSION
and
SCHENKER
SOUTH AFRICA (PTY) LTD
In the matter between:
and
CONSENT AGREEMENT IN TERMS
OF
SECTION 49D READ
WITH SECTION 58(1)(a)(iii) AS READ WITH SECTION 58(1)(b)
OF
THE COMPETITION ACT,
1998 (ACT NO. 89 OF 1998), AS AMENDED, BETWEEN THE COMPETITION
COMMISSION AND SCHENKER SOUTH AFRICA (PTY) LIMITED,
IN REGARD ALLEGED
CONTRAVENTION OF SECTION 4(1)(b)(i) OF THE
The Competition Commission and Schenker South Africa
(Pty) Ltd hereby agree that application be made to the Competition
Tribunal
for the confirmation of a Consent Agreement in terms of
section 58 (1)(a)(Hi) as read with sections 58(1 )(b) and 59(1 )(a)
of
the Competition Act, 1998 (Act No. 89 of 1998), as amended, on the
terms set out below:
Definitions
For the purposes of this Consent
Agreement
the
following definitions shaif apply:
1.1. "Act
means
the Competition Act, 1998 (Act No. 89 of 1998), as amended;
1.2. "BAX Global"
means
Bax Global Ltd which included the BAX group of comoanies that became
affiliated to Schenker SA in January 2006.
ySKK\
Global Ltd was
acquired on 1 January 2006 by Deutsche Bahn AG, the holding company
of Schenker South Africa (Pty) Ltd.
1.3. 'Commission"
means
the Competition Commission of South Africa, a statutory body
established in terms of section 19 of the Act, with its principal
place of business at 1
st
Floor, Mulayo Building (Block C), the
dti Campus, 77 Meintjies Street, Sunnyside, Pretoria, Gauteng;
1.4. “
Commissioner"
means the
Commissioner of the Competition Commission, appointed in terms of
section 22 of the Act;
1.5. "Complaint'
means
the complaint initiated by the Commissioner of the Competition
Commission in terms of section 49B of the Act under case number
2007OCT3236;
1.6. "Consent Agreement"
means this
agreement duly signed and concluded between the Commission and
Schenker South Africa (Pty) Limited;
1.7. "Schenker SA"
means Schenker
South Africa (Pty) Limited, a company registered and incorporated in
accordance with the laws of the Republic of
South-Africa with
registration number 1962/003897/07 and with its registered address,
alternatively principal place of business
at Freight City, 24 Pamona
Road, Pamona, Kempton Park, South-Africa;
1.8. "Parties"
means
the Commission and Schenker SA;
1.9. "Respondents"
means the firms
subject to the Commission's investigation of the complaint initiated
under case number 2007Oct3236, namely Schenker
South Africa (Pty)Ltd,
Schenker AG Group, Deutsche Bahn AG, Kuehne+Nagel (Pty) Ltd,
Kuehne+Nagel Group, Kuehne+Nagel International
AG, Expediters
international South Africa (Pty) Ltd, Expeditors International,
Panalpina World Transport (Holding) Ltd, UTI South
Africa (Pty) Ltd,
UTI Worldwide Inc., DHL International (Pty) Ltd, DHL Global
Forwarding, DHL International GmbH, Deutsche Post
AG, BAX Global
Inc., Dascher, Eagle Air Freight Inc., Emery Air Freight Corporation,
Geologistics Corporation, Mane Freight, Saima
and SAAFF.
1.10.
"tribunal'
means the
Competition Tribunal of South Africa, a statutory^bony established in
terms of section 26 of the Act, with its principal
piac® of)
business at 3
rd
Floor, Mulayo building (Block C), the
dti Campus, 77 Meintjtes Street, Sunnyside, Pretoria, Gauteng.
2.
The Complaint and Complaint investigation
2.1. On 2 October 2007 the Commissioner initiated a
complaint against Bax, Dascher, Eagle, Emery, Expediters,
Geologtstics, Kuehne
& Nagel, Mane Freight, Panaipina, Saima,
Schenker and UTI in respect of allegations that the respondents,
being parties in
a horizontal relationship in the provision of
freight forwarding services, may have contravened sections 4(1)(a),
4(1}(b)(i) and/or
4(1)(b)(ii) of the Act in that they discussed and
agreed to fix the level of various surcharges and accessorial fees.
2.2. The Commission's investigation found, amongst
others, that:
2.2.1
United
Kingdom Air New Export System Security ("NES"):
During the period October 2002 to around 2005 various
freight forwarders including BAX Global Ltd in the United Kingdom
participated
in discussions aimed at achieving the introduction of a
so called NES fee for shipments by air originating in the United
Kingdom.
The NES fee was to be applied in connection with costs
arising through the application of a pre-clearance system introduced
by
the United Kingdom's customs authorities for shipments leaving the
United Kingdom.
2.2.2.
Air
Automated Manifest System ("AMS") fee from Germany:
During July 2004 freight forwarders including Schenker
Deutschland AG, (a company affiliated to Schenker SA) in Germany
participated
in discussions aimed at achieving the introduction of a
so called AMS fee for shipments by air to the US originating in
Germany.
Discussions also related to the approximate level of the AMS
fee. The AMS fee was to be applied in connection with costs arising
through the application of a pre-clearance system introduced by the
US customs authorities for shipments to the US.
2.2.3
Chinese
air Currency Adjustment Factor ("CAP}:
During the period July 2005 to March
2006, freight forwarders including Schenker China Ltd. and BAX Global
(China) Co. Ltd. in China
agree with
competitors
on the introduction of a currency adjustment factor or CAF of 2.1%
for shipments by air originating in China. The CAF
was designed to
compensate freight forwarders for the losses incurred following a
change in the value ratio of the US dollar to
the Chinese renmimbi.
2.2.4 Hong Kong air Peak Season Surchage {"PSS"):
During the period August 2005 to May 2007 various
freight forwarders inciuding Schenker International (H.K.) Ltd and
BAX Global
Limited (Hong Kong) in Hong Kong participated in
discussions aimed at exchanging information, such as start and end
dates and approximate
amounts, regarding the introduction of a peak
season surcharge or PSS for shipments by air originating in Hong
Kong, Macau and
south China. The PSS was designed to compensate
freight forwarders for the rate increases imposed upon them by the
air carriers
during busy periods for air cargo shipments.
2.3 In light of its findings, the Commission took a
decision to refer its findings of conduct in contravention of section
4(1)(b)(i)
to the Tribunal for adjudication.
3.
Statement of conduct by
Schenker SA
Schenker
SA acknowledges that the conduct described above constitutes a
contravention of section 4(1)(b)(i) of the Act and admits
that if
benefitted from such conduct.
4.
Administrative Penalty
4.1
In accordance with the
provisions of section 58(1)(a)(iii) as read with sections 59(1 )(a),
59(2) and 59(3) of the Act, Schenker
SA is liable for and has agreed
to pay an administrative penalty in the amount of
R959
000,00
(nine
hundred and fifty nine
thousand
Rand), which amounts constitutes 5% of the relevant turnover in 2007.
4.2
Schenker SA will pay the
amount set out in paragraph 4.3 above to the Commission within seven
days of the date of confirmation of
this Consent Agreement as an
order of the Tribunal,
4.3
This payment shall be made
into the Commission's bank account, details of
which
are as follows:
Bank name: Absa Bank
Branch name:
Pretoria
Account holder:
Competition Commission Fees Account
Account number:
4050778576
Account type:
Current
Account
Branch Code:
323
345
4.4 The penalty will be paid over by the Commission to
the National Revenue Fund in accordance with section 59(4) of the
Act.
5.
Agreement Concerning Future Conduct
5.1
Schenker
SA agrees to cooperate with the Commission in relation to
the
prosecution of the. conduct described in this Consent
Agreement. Without
limiting the generality of the foregoing,
Schenker SA specifically agrees to:
Provide witnesses to testify in the complaint referral
(if any) in respect of alleged contraventions covered by this
Consent
Agreement; and
To the extent that it is in existence, and has not
already been provided to the Commission, provide evidence, written
or otherwise,
which is in its possession or under its control,
concerning the alleged contraventions contained in this Consent
Agreement.
Schenker SA agrees that it will refrain from any
conduct that may contravene section 4(1 )(b) of the Act.
Schenker SA undertakes to develop and implement a
compliance programme, with corporate governance, designed to ensure
that all
its relevant employees are aware of the provisions of the
Competition Act and
do not contravene them; and to submit a copy of
the aforementioned compliance programme outlined above to the
Commission within
90 business days of the date of confirmation of
this Consent agreement as an order of the Tribunal.
6.
Full and Final Settlement
This agreement is entered into in full and final
settlement and, upon confirmation as an order by the Tribunal,
concludes all
proceedings between the Commission and Schenker SA and
its affiliates relating to any alleged contravention of the Act that
is
the subject of the Commission's investigation under Case No.
2007Oct 3236.
Dated
and signed at Pomana
on
the 23 day of
January
2012
Schenker
South Africa (Pty) Ltd
For the
Commission
Competition
Commissioner