DRAFT RELEASE

 

Milk Cartel hearings set

 

7 February 2008

 

The Competition Commission is pleased that the Competition Tribunal has set a date for the hearing in the cartel case against eight dairy processors commencing in September 2008.

 

The dairy processors involved are: Clover Industries Ltd, Clover SA (Pty) Ltd, Parmalat (Pty) Ltd, Ladismith Cheese (Pty) Ltd, Woodlands Dairy (Pty) Ltd, Lancewood (Pty) Ltd, and Nestle SA (Pty) Ltd and Milkwood Dairy (Pty) Ltd.

 

Shan Ramburuth, Commissioner at the Competition Commission says because collusion between competing businesses is one of the most egregious of anti-competitive practices, the matter must be taken very seriously.

 

“Collusion perverts the normal and healthy functioning of a competitive market by creating an artificial environment for the setting of prices to rip-off consumers, in this case in respect of a basic foodstuff: milk.”

 

Ramburuth says as a law enforcement agency, not only will the Commission be seeking an order from the Tribunal prohibiting these parties from continuing these practices, but also a fine which sends the appropriate message to other businesses involved in similar conduct. “This is a very effective form of deterrent used around the world,” he said.

 

“The fine should be severe enough for parties involved in cartel activity to desist or approach the Commission with a view to participating in our corporate leniency policy. This is essentially a whistle-blowing programme which allows the ‘first through the door’ to be considered for exclusion from prosecution in respect of the collusive activities.”

 

Ramburuth says the administrative penalty is not a remedial tool, but rather one that seeks to ensure general compliance with the law by the firms involved as well as other firms.

 

“Following prosecution, we hope that the companies and their shareholders see any fines imposed as a punishment they are required to bear for contravening the Act, and not pass on the costs to consumers. Shareholders who are concerned about the maintenance of profit margins should consider that those margins were an artificial consequence of the anti-competitive behaviour, and the market needs to correct itself to its true levels.”

 

The Competition Act allows the Tribunal to set administrative penalties of up to 10% of the business’s turnover, and its sets out a range of factors to consider when deciding on the magnitude of the fine.

 

These include:

 

·         The nature, duration, gravity and extent of the contravention;

·         Any loss or damage suffered as a result of the contravention;

·         The behaviour of the respondent;

·         The market circumstances in which the contravention took place;

·         The level of profit derived from the contravention;

·         The degree to which the respondent has cooperated with the Competition Commission and the Competition Tribunal; and

·         Whether the respondent has previously been found in contravention of the Competition Act.

 

Background

 

The Commission initiated an investigation into anticompetitive behaviour in the milk industry in February 2005. Its investigation found evidence of price fixing for raw and processed milk and the manipulation of the market to restrict competition.

 

Specifically, the Commission has referred the following findings to the Competition Tribunal for determination:

 

1.       Clover, Parmalat, Ladismith Cheese, Woodlands, Lancewood and Nestle exchanged sensitive information on procurement prices of raw milk in various ways. Exchange of pricing information enabled competitors to co-ordinate their pricing strategies to fix the purchase price of raw milk.

2.       Clover, Parmalat, Woodlands and Nestle entered into long term milk supply and exchange agreements to sell their surplus raw milk to each other rather than processing the milk and selling it at lower prices. This arrangement enabled colluding firms to maintain the price of milk at artificially high levels.

3.       Clover and Parmalat abused their respective dominant positions by entering exclusive agreements that compelled producers to supply them their total milk production. Producers were prevented from selling surplus raw milk at competitive prices to third parties or consumers directly. This practice also prevented the entry of smaller milk processors and distributors into the market.

4.       Clover SA and Woodlands reached an agreement regarding the selling price of UHT “long life” milk ultimately resulting in the consumer paying higher prices for UHT Milk.

5.       Woodlands and Milkwood agreed to fix the selling price of UHT milk and allocated geographic areas in which they would not compete in selling UHT milk. This eliminated price competition resulting in consumers paying more.

6.       Clover, Woodlands and Parmalat co-ordinated the removal of surplus milk from the market. Surplus removal of milk, decreases supply and this keeps prices high. It therefore constitutes indirect price fixing. Clover successfully applied for leniency under the Commission’s Corporate Leniency Programme and will not be prosecuted for this offence.

 

ENDS

 

Prepared by: FD Beachhead

Dani Cohen 

Jennifer Cohen  

 

On behalf of:  The Competition Commission

 

Further info:  

Mark Worsley, Manager of Legal Services

 

Thulani Kunene, Head of Enforcements and Exemptions