SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
COMPETITION TRIBUNAL
REPUBLIC OF SOUTH AFRICA
Case No: C0189Nov15
In the matter between:
The Competition Commission Applicant
And
Compafiia Sud Americana De Vapores S.A. Respondent
Panel : A Wessels (Presiding Member)
I Valodia (Tribunal Member)
A Ndoni (Tribunal Member)
Heard on : 09 December 2015
Decided on : 09 December 2015
Consent Agreement
The Tribunal hereby confirms the consent agreement as agreed to and proposed by the
Competition Commission and Compafiia Sud Americana De Vapores S.A. annexed hereto
marked "A".
09 December 2015
Date
_____________________
Presiding Member
Mr A Wessels
Concurring: Prof. IValodia and Ms A Ndoni
IN THE COMPETITION TRIBUNAL OF SOUTH AFRICA
(HELD IN PRETORIA)
CT Case No.
CC Case No: 2012Sep0544 and 2013Aug0401
In the matter between
COMPETITION COMMISSION Applicant
and
COMPANIA SUD AMERICANA DE VAPORES S.A. Respondent
CONSENT AGREEMENT IN TERMS OF SECTION 490 AS READ WITH SECTIONS 58(1)
(a)(iii) and 58(1) (b) OF THE COMPETITION ACT, NO. 89 OF 1998, AS AMENDED,
BETWEEN THE COMPETITION COMMISSION AND COMPANIA SUD AMERICANA DE
VAPORES S.A, IN RESPECT OF CONTRAVENTIONS OF SECTION 4(1)(b) (i), (ii) AND (iii)
OF THE COMPETITION ACT, 1998
Preamble
The Competition Commission and Compania Sud Americana De Vapores S,A hereby agree
that application be made to the Competition Tribunal for the confirmation of this Consent
Agreement as an order of the Tribunal in terms of section 4\JD read with section 58(1)(a)(lli)
and 58(1)(b) of the Competition Act, No. 89 of 1998, as amended, in respect of
contraventione of section 4(1)(b) (l), (Ii) and (iii) of the Act, 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, Act No. 89 of 1998, as amended
1.2 "Carriers" means any of Mitsui O.S.K Lines Limited, Nippon Yusen Kabushiki Kaisha
Ltd, Kawasaki Kisen Kaisha Ltd, Compal'Ha Sud Americana de Vapores S.A, Hoegh
Autollners Holdings AS, Wallenius Wilhelmsen Logistics AS and Eukor Car Carriers Inc.
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 Mulayo
Building (Block C), the DTI Campus, 77 Meintjies Street, Sunnyside, Pretoria, Gauteng;
1.4 "Commissioner" means the Commissioner of the Commission, appointed in terms of
section 22 of the Act;
1.5 "Complaint" means the complaint initiated by the Commissioner in terms of section
498(1) of the Act under case numbers 2012Sep0544 and 2013Aug0401 ;
1.6 "Consent Agreement" means this agreement duly signed and concluded between
the Commission and Compailla Sud America De Vapares S.A;
1.7 "CSAV'' means Companfa Sud Americana De Vapores S.A, a company duly
registered and Incorporated under the laws of Chile with its principal place of business at
Hendaya 60, Piso 14, Las Condes, Santiago, Chile.
1.8 "Parties" means the .Commission and compania Sud Americana De Vapores S.A;
1.9 "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 Mulayo
building (Block C), the OT! Campus, 77 Meintjles Street, Sunnyside, Pretoria, Gauteng; and
2. BACKGROUND TO THE COMMISSION'S INVESTIGATION AND FINDINGS
2.1 On 11 September 2012, the Commission initiated a complaint In terms of section 49(8)
(1) of the Act Into alleged prohibited practices relating to price fixing and market division in
contravention of section 4(1)(b)(i) and (ii) of the Act, in the market for the transportation of
vehicles, equipment and/or machinery (including new and used vehicles and new and used
rolling construction and agricultural machinery) by sea, to and from South Africa, against
Mitsui O.S.K Lines Limited ("MOL"), Nippon Yusen Kabushiki Kaisha Ltd ("NYK"), Kawasaki
Kisen Kaisha Ltd (''K-Line"), Compallla Sud Americana de Vapores S.A. ("CSAV"), Hoegh
Autoliners Holdings AS ("Hoegh"), Wallenius Wiiheimsen Logistics AS ("WWL") and Eukor
Car Carriers Inc. ("Eukor'').
2.2 On 14 September 2012, CSAV applied to the Commission for a marker in relation to
the conduct In respect of the GM tender referred to below. However, CSAV was advised that
another leniency application had been received by the Commission and was under
consideration at that time.
2.3 On 20 August 2013, the Commission amended Its complaint initiation to include
coliusive tendering practices in contravention of section 4(1)(b)(iii) of the Act, against the
firms set out in paragraph 2.1 above.
2.4 The Commission's Investigation revealed the following:
2.4.1 that during or about the period 1999 up to and including September 2012, the firms set
out in paragraph 2.1 above, being competitors In the market for the transportation of vehicles,
equipment and/or machinery (Including new and used vehicles and new and used rolling
construction and agricultural machinery) by sea, to and from South Africa, concluded various
agreements to fix prices, divide markets and collude on tenders issued by vehicle, equipment,
rolling construction and agricultural machinery manufacturers.
2.4.2 The firms referred to in paragraph 2.1 above were found, through the
Commission's broader investigation, to have agreed to fix prices, divide markets and collude
on tenders issued by vehicle equipment, rolling construction and agricultural machinery
manufacturers, which include, but are not limited to, General Motors Company ("GM"), Volvo
Construction Equipment ("Volvo"), BMW South Africa (Pty) Ltd ("BMW"), Volkswagen AG
("VW') and Nissan Motor Corporation ("Nissan") through Its Renault-Nissan Purchasing
Organization ("RNPO"). The Commission found that CSAV had engaged in three particular
contraventions.
3. PROHIBITED PRACTICES ENGAGED IN BY CSAV
3.1. The Commission's investigation revealed that pursuant to the various agreements
concluded by the firms set out in paragraph 2.1 above, CSAV engaged In at least three (3)
instances of prohibited practices in contravention of the Act. For the purposes of this
settlement, CSAV has admitted to having engaged in one (1) instance of prohibited practlces
in contravention of section 4(1)(b)(i), (ii) and/or (iii) of the Act together with MOL in respect of a
GM tender as follows:
GM 2010 TENDER (South Korea to South Africa)
3.2. During or about 2009 CSAV held approximately 75% of GM's vehicle shipment
business from South Korea to South Africa. MOL held the remaining 25%. During or about
2010 GM fssued a global tender for the shipment of motor vehicles including shipments from
South Korea to South Africa. CSAV and MOL agreed that MOL would quote a higher price
than CSAV to ensure that CSAV maintained its 75% of the business and that MOL also
maintained its 25% of the business. CSAV was awarded part of the contract in line with its
collusive arrangement with MOL, and successfully secured Its 75% of the business. MOL lost
its 25% to CIDO, a company which was not a party to the collusive arrangement.
3.3. The agreement concl.uded by CSAV and MOL constitutes price fixing, market division
and collusive tendering Which contravenes section 4(1)(b) (i), (ii} and (iii) of the Act.
4. ADMISSION
4.1. CSAV admits to having engaged In one (1) instance of prohibited practices as set out
in paragraph 3 above in contravention of section 4( 1)(b) (i), (ii) and (iii) of the Act and
disputes having engaged In the other two (2) instances uncovered by the Commission's
investigation.
5. COOPERATION
5.1. CSAV agrees to fully cooperate with the Commission In Its Investigation and
prosecution, if any, of the remaining respondents in the Commission's complaints. This
cooperation includes, but is not limited to:
5.1.1. To the extent that it is In existence, the provision of evidence, written or
otherwise, Which is In the possession of CSAV or under CSAV's control, concerning the
alleged prohibited practices set out in this ConsentAgreement.
5.1.2. Testifying during the hearing of the complaint, if any, In respect of the prohibited
practices set out in this Consent Agreement.
6. FUTURE CONDUCT
6..1. CSAV agrees to:
6.1.1. prepare and circulate a statement summarising the content of thls agreement to its
employees, managers and directors within thirty (30) days of the date of confirmation of
this Consent Agreement as an order of the Tribunal;
6.1.2. refrain from engaging In conduct In contravention of section 4(1)(b) of the Act ln
future:
6.1.3. develop, implement and monitor a competition law compliance programme as
part of its corporate governance policy, which is designed to ensure that its employees,
management, directors and agents do not engage In future contraventions of the Act. In
particular, such compliance programme should include mechanisms for the identification,
prevention, detection and monitoring of any contravention of the Act;
6.1.4. submit a copy of such compliance programme to the Commission within 60 days of
the date of confirmation of this Consent Agreement as an order by the Tribunal; and
6.1.5. undertakes henceforth to engage in competitive practices.
7. ADMINISTRATIVE PENALTY
7.1. Having regard to the provisions of sections 58(1)(a)(iii) as read with sections 59(1)
(a), 59(2) and 59(3) of the Act, CSAV is liable to pay an administrative penalty.
7,2. CSAV agrees and undertakes to pay an administrative penalty in the amount of RB 813
227.14 (Eight Million Eight Hundred and Thirteen Thousand Two Hundred and Twenty Seven
Rands and fourteen cents).
7.3. The admlnistrative penalty represents 6% of the 2010 GM contract and does not
exceed 10% of CSAV's annual turnover in the Republic of South Africa for the financial year
ended December 2010.
7.4. CSAV will pay the amount set out in paragraph 7,2 above to the Commission within
thirty (30) days of the confirmation of this Consent Agreement as an order of the Tribunal.
7.5. The administrative penalty must be paid into the Commission's bank account which
is as follows:
Name: The Competition Commission Fee
Account Bank: Absa Bank, Pretoria
Account Number: [….....]
Branch Code: 323 345
Ref: 2012Sep0544/ CSAV
7.6. The administrative penalty will be paid over by the Commission to the National
Revenue Fund in accordance with the provisions of section 59(4) of the Act.
8. Full and Final Settlement
8.1. This agreement, upon confirmation as an order of the Tribunal, is entered into in full
and final settlement in respect of the one (1} instance of prohibited practices in contravention
of section 4(1)(b)(i), (ii) andfor (iii) as set out above and admitted to by CSAV in respect of the
2010 GM contract and concludes all proceedings between the Commission and CSAV in
respect of this Instance only.
Dated and signed at Santiago on the 19th day of November 2015
For Compania Sud America De Vapores S.A
______________________
Chief Officer
Name in Full: Oscar Eduardo Hasbun Martinez
Dated and signed at PRETORIA on the 26th of November 2015
For the Commission
__________________
Tembinkosi Bonakele
Competition Commissioner