About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Competition Tribunal
SAFLII
>>
Databases
>>
South Africa: Competition Tribunal
>>
2012
>>
[2012] ZACT 13
|
|
Competition Commission v Kuehne and Nagel (Pty) Ltd (110/CR/Dec11) [2012] ZACT 13; [2012] 1 CPLR 88 (CT) (22 February 2012)
COMPETITION
TRIBUNAL OF SOUTH AFRICA
Case No.: 110/CR/Dec11
In the matter between:
THE COMPETITION
COMMISSION
…..........................................................
APPLICANT
And
KUEHNE
+ NAG EL (PTY) LTD
…............................................................
RESPONDENT
Panel: A Wessels
(Presiding Member), A Ndoni (Tribunal Member) and M Mokuena (Tribunal
Member)
Heard on: 18 January 2012
Amended agreement
received on: 21 February 2012
Decided on: 22 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
IN
THE COMPETITION TRIBUNAL OF SOUTH AFRICA HELD IN PRETORIA
CC Case No. 2007OCT3236
in the matter between:
THE
COMPETITION
COMMISSION
…..............................................................
Applicant
and
KUEHNE
+ NAGEL (PTY) LTD
…..................................................................
Respondent
The Competition
Commission and Kuehne + Nagel (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)(iii) 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:
1.
Definitions
For
the purposes of this Consent
Agreement
the
following definitions shall apply:
1.1.
"Act
means
the Competition Act, 1998 (Act No. 89 of 1998), as amended;
1.2.
"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;
1.3.
"Commissions?
means
the Commissioner of the Competition Commission, appointed in terms
of section 22 of the Act;
1.4.
"Complaint'
means
the complaint initiated by the Commissioner of the Competition
Commission in terms of section 49B of the Act under case
number
2007OCT3236;
1.5.
"Consent
Agreement"
means
this agreement duly signed and concluded between the Commission and
Kuehne + Nagel (Pty) Limited;
1.6.
'K+N SA" means Kuehne + Nagel (Proprietary) Limited a company
registered and incorporated in accordance with the laws
of the
Republic of South-Africa with registration number 1954/000602/07 and
with its registered address, alternatively principal
place of
business at 9 Nguni Drive Edenvale 1609;
1.7.
"K+N" means the Kuehne + Nagel Group of Companies.
1.8.
"Parties"
means
the Commission and K+N SA;
1.9.
"Respondents"
means
the firms subject to the Commission's investigation of the complaint
initiated under case number 2007Oct3236, namely Kuehne+Nagel
(Pty)
Ltd, Kuehne+Nagel Group, Kuehne+Nagel International AG, Schenker
South Africa (Pty)Ltd, Schenker AG Group, Deutsche Bahn
AG,
Expeditors International South Africa (Pty) Ltd, Expediters
International, Panaipina 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, Eagie Air Freight Inc., Emery Air Freight
Corporation, Geologistics Corporation, Mahe Freight,
Saima and
SAAFF.
1.10.
"Tribunal"
means
the Competition Tribunal of South Africa, a statutory body
established in terms of section 26 of the Act, with its principal
place of business at 3
rd
Floor,
Mulayo building (Block C), the dti Campus, 77 Meintjies Street,
Sunnyside, Pretoria, Gauteng.
2. The Complaint and
Complaint Investigation
2.1.
On 2 October 2007 the Commissioner initiated a complaint
agajnj£LBax, Dascher, Eagle, Emery, Expeditors, Geologistics,
Kuehne &yNagejf, Mine
Freight, Panalpina,
Sairna, Schenker and UTI in respect of ailegations that the
respondents, being parties in a horizontal relationship
in the
provision of freight forwarding services, may have contravened
sections 4(1 }(a), 4(l)(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
Kuhne + Nagel Ltd (UK) 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
and
Switzerland:
During July 2004 freight
forwarders including Kuhne + Nagel (AG & Co.) KG in Germany and
Kuhne + Nagel Aktiengeselischaft
in Switzerland . participated in
discussions aimed at achieving the introduction of a so called AMS
fee for prepaid shipments
by air to the US originating in Germany
and Switzerland. 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 ("CAF"):
During the period July
2005 to March 2006, freight forwarders including Kuhne + Nagel Ltd.
(China) in Shangai, China agreed with
competitors on the
introduction of a currency adjustment factor or CAF 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 including Kuhne + Nagel
Ltd. (HongKong) 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. 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 K+N SA
K+N SA acknowledges that
the conduct described above constitutes a contravention of section
4(1 )(b)(i) of the Act and admits
that it benefited from such
conduct.
4.
Administrative
Penalty
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, K+N
SA is liable for and has
agreed to pay an administrative penalty in the amount of
R962,657.01 (nine hundred and sixty two thousand
six hundred and
fifty seven Rand and one Cent), which amounts constitutes 5% of the
relevant turnover in 2007.
K+N 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.
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
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
K+N
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, K+N
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.
K+N SA agrees that it
will refrain from any conduct that may contravene section 4(1 )(b)
of the Act.
K+N 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 K+N SA, Kuehne+Nagel Group, Kuehne+Nage!
International AG and any other company that forms
part of the
Kuehne+Nagel group of companies 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
EDENVALE on the 10th day of FEBRUARY 2012.
FOR
KUEHNE + NAGEL (PTY) LIMITED