CELEX: 62014TJ0475
Competition
Agreements, decisions and concerted practices
European market for power cables
Decision finding an infringement of Article 101 TFEU
Single and continuous infringement
Illegal nature of the inspection decision
Reasonable time
Principle of sound administration
Principle of personal responsibility
Joint and several liability for payment of the fine
Sufficient proof of the infringement
Duration of the infringement
Fines
Proportionality
Equal treatment
Unlimited jurisdiction

Background to the dispute
The applicants and sector concerned
The applicants, Prysmian SpA and Prysmian Cavi e Sistemi Srl (‘PrysmianCS’), are two Italian companies which together constitute the Prysmian group. PrysmianCS, which is wholly owned by Prysmian, is one of the leading companies worldwide in the submarine and underground power cable sector. Between 18 February 1999 and 28 July 2005, PrysmianCS was owned by Pirelli & C. SpA (‘Pirelli’), formerly Pirelli SpA. Initially, it formed part of the activities of Pirelli Cavi e Sistemi SpA (‘PirelliCS’). Subsequently, following the demerger of that company, it became the separate company, Pirelli Cavi e Sistemi Energia SpA (‘PirelliCSE’). That company was sold in July 2005 to a subsidiary of The Goldman Sachs Group, Inc. (‘Goldman Sachs’) and became, first, Prysmian Cavi e Sistemi Energia Srl (‘PrysmianCSE’) and finally PrysmianCS.
Submarine power cables are used under water and underground power cables are used under the ground for the transmission and distribution of electrical power. They are classified in three categories: low voltage, medium voltage and high and extra high voltage. High voltage and extra high voltage power cables are, in the majority of cases, sold as part of projects. Such projects consist of a combination of the power cable and the necessary additional equipment, installation and services. High voltage and extra high voltage power cables are sold throughout the world to large national grid operators and other electricity companies, principally through competitive public tender procedures.
Administrative procedure
By letter of 17 October 2008, the Swedish company ABB AB provided the Commission of the European Communities with a series of statements and documents concerning restrictive commercial practices in the underground and submarine power cable production and supply sector. Those statements and documents were produced in support of an application for immunity submitted in accordance with the Commission Notice on immunity from fines and reduction of fines in cartel cases (
OJ 2006 C 298, p. 17
; ‘the Leniency Notice’).
From 28 January to 3 February 2009, further to the statements made by ABB, the Commission carried out inspections at the premises of Prysmian and PrysmianCSE and at the premises of the other European companies concerned, that is to say, Nexans SA and Nexans France SAS.
On 2 February 2009, the Japanese companies, Sumitomo Electric Industries Ltd, Hitachi Cable Ltd and J-Power Systems Corp. submitted a joint application for immunity from fines, in accordance with point 14 of the Leniency Notice, or, in the alternative, for a reduction of the amount thereof, in accordance with point 27 of the Leniency Notice. They then supplied the Commission with further oral statements and documentation.
During the course of the investigation the Commission sent several requests for information to undertakings in the underground and submarine power cable production and supply sector pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (
OJ 2003 L 1, p. 1
), and point 12 of the Leniency Notice.
On 30 June 2011, the Commission initiated proceedings and adopted a statement of objections against the following legal entities: Nexans France, Nexans, Pirelli, Goldman Sachs, Sumitomo Electric Industries, Hitachi Cable, J-Power Systems, Furukawa Electric Co. Ltd, Fujikura Ltd, Viscas Corp., SWCC Showa Holdings Co. Ltd, Mitsubishi Cable Industries Ltd, Exsym Corp., ABB, ABB Ltd, Brugg Kabel AG, Kabelwerke Brugg AG Holding, nkt cables GmbH, NKT Holding A/S, Silec Cable SAS, Grupo General Cable Sistemas, SA, Safran SA, General Cable Corp., LS Cable & System Ltd, Taihan Electric Wire Co. Ltd and the applicants.
Between 11 and 18 June 2012, all the addressees of the statement of objections, with the exception of Furukawa Electric, took part in an administrative hearing before the Commission.
By judgments of 14 November 2012, Nexans France and Nexans v Commission (
T‑135/09
,
EU:T:2012:596
) and of 14 November 2012, Prysmian and Prysmian Cavi e Sistemi Energia v Commission (
T‑140/09
,
EU:T:2012:597
), the General Court partly annulled the inspection decisions addressed, first, to Nexans and Nexans France, and, second, to Prysmian and PrysmianCSE, in so far as they concerned power cables other than high voltage submarine and underground power cables and the material associated with such other cables, and dismissed the action as to the remainder. On 24 January 2013, Nexans and Nexans France brought an appeal against the first of those judgments. By judgment of 25 June 2014, Nexans and Nexans France v Commission (
C‑37/13 P
,
EU:C:2014:2030
), the Court of Justice dismissed that appeal.
On 2 April 2014, the Commission adopted its Decision C(2014) 2139 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the [EEA] Agreement (Case AT.39610 — Power cables) (‘the contested decision’).
Contested decision
The infringement at issue
Article 1 of the contested decision states that a number of undertakings participated, over various periods of time, in a single and continuous infringement of Article 101 TFEU in the ‘(extra) high voltage underground and/or submarine power cables sector’. In essence, the Commission found that, from February 1999 to the end of January 2009, the main European, Japanese and South Korean producers of submarine and underground power cables participated in a network of multilateral and bilateral meetings and established contacts aimed at restricting competition for (extra) high voltage submarine and underground power cable projects in specific territories, by allocating markets and customers, thereby distorting the normal competitive process (recitals 10 to 13 and 66 of that decision).
In the contested decision, the Commission found that the cartel consisted of two main configurations, which formed a composite whole. More specifically, according to the Commission, the cartel consisted of two aspects, namely:
–
the ‘A/R cartel configuration’, which included the European undertakings, which were generally referred to as ‘R members’ (including the applicants), the Japanese undertakings, referred to as ‘A members’, and, lastly, the South Korean undertakings, referred to as ‘K members’. That configuration made it possible to achieve the objective of allocating territories and customers among the European, Japanese and South Korean producers. That allocation followed an agreement relating to the ‘home territory’, under which the Japanese and South Korean producers would refrain from competing for projects in the European producers’ ‘home territory’ and the European producers would undertake to stay out of the Japanese and South Korean markets. In addition, the parties allocated projects in the ‘export territories’, namely the rest of the world with the notable exception of the United States. For a time, this allocation was based on a ‘60/40 quota’, meaning that 60% of the projects were reserved for the European producers and the remaining 40% for the Asian producers;
–
the ‘European cartel configuration’, which involved the allocation of territories and customers by the European producers for projects to be carried out within the European ‘home territory’ or allocated to the European producers (see section 3.3 of the contested decision and, in particular, recitals 73 and 74 of that decision).
The Commission found that the participants in the cartel had established obligations to exchange information in order to enable the allocation agreements to be monitored (recitals 94 to 106 and 111 to 115 of the contested decision).
The Commission classed the cartel participants in three groups, according to the role each of them had played in implementing the cartel. First, it defined the core group to include the European undertakings Nexans France, the subsidiaries of Pirelli having participated successively in the cartel and PrysmianCSE, and the Japanese undertakings Furukawa Electric, Fujikura and their joint undertaking Viscas, as well as Sumitomo Electric Industries, Hitachi Cable and their joint undertaking J-Power Systems (recitals 545 to 561 of the contested decision). Next, the Commission identified a group of undertakings which had not been part of the core group but which nevertheless could not be regarded as merely fringe players in the cartel. In this group, it placed ABB, Exsym, Brugg Kabel and the entity constituted by Sagem SA, Safran and Silec Cable (recitals 562 to 575 of that decision). Lastly, the Commission took the view that Mitsubishi Cable Industries, SWCC Showa Holdings, LS Cable & System, Taihan Electric Wire and nkt cables were fringe players in the cartel (recitals 576 to 594 of that decision).
The applicants’ liability
The applicants were found liable on the basis of PrysmianCS’s direct participation in the cartel from 18 February 1999 to 29 January 2009 and Prysmian’s exercise of decisive influence over the conduct of PrysmianCS between 29 July 2005 and 28 January 2009 (recitals 782 to 785 of the contested decision).
The fines imposed
Article 2(f) of the contested decision imposed a fine of EUR 37303000 on PrysmianCS jointly and severally with Prysmian and Goldman Sachs. Article 2(g) of that decision imposed a fine of EUR 67310000 on PrysmianCS jointly and severally with Pirelli.
In calculating those fines, the Commission applied Article 23(2)(a) of Regulation No 1/2003 and the methodology set out in the Guidelines on the method of setting fines imposed pursuant to [that provision] (
OJ 2006 C 210, p. 2
, ‘the 2006 Guidelines on setting fines’).
In the first place, as regards the basic amounts of the fines, after establishing the appropriate value of sales in accordance with point 18 of the 2006 Guidelines on setting fines (recitals 963 to 994 of the contested decision), the Commission selected the proportion of the value of sales which would reflect the gravity of the infringement in accordance with points 22 and 23 of those guidelines. In that regard, it considered that the infringement, by its very nature, was among the most harmful restrictions of competition, which justified a gravity percentage of 15%. The Commission also increased the gravity percentage by 2% for all addressees on account of their combined market share and the almost worldwide reach of the cartel, which included, inter alia, all of the territory of the European Economic Area (EEA). In addition, it considered, in particular, that the conduct of the European undertakings had been more detrimental to competition than that of the other undertakings, inasmuch as, in addition to their participation in the ‘A/R cartel configuration’, the European undertakings had allocated power cable projects among themselves in the context of the ‘European cartel configuration’. For that reason, the Commission set the proportion of the value of sales to reflect the gravity of the infringement at 19% for the European undertakings and at 17% for the other undertakings (recitals 997 to 1010 of that decision).
In so far as concerns the multipliers to reflect the duration of the infringement, the Commission used a multiplier of 9.91 for PrysmianCS, which reflected the period from 18 February 1999 to 28 January 2009, and a multiplier of 3.5 for Prysmian, which reflected the period from 29 July 2005 to 28 January 2009. For PrysmianCS, the Commission also included in the basic amount of the fines an additional amount, namely the entry fee, of 19% of the value of sales. The basic amount thus calculated came to EUR 104613000 (recitals 1011 to 1016 of the contested decision).
In the second place, the Commission found no aggravating circumstances that could affect the basic amounts of the fine of the cartel participants, with the exception of ABB. On the other hand, in so far as mitigating circumstances are concerned, it decided to reflect in the fines the degree of involvement in the implementation of the cartel of each of the various undertakings. Accordingly, it reduced the basic amount of the fines to be imposed in respect of the fringe cartel participants by 10% and the basic amounts of the fines to be imposed in respect of the undertakings whose involvement had been moderate by 5%. It also granted Mitsubishi Cable Industries and SWCC Showa Holdings, in respect of the period preceding the creation of Exsym, and LS Cable & System and Taihan Electric Wire an additional reduction of 1% on account of the fact that they had been unaware of certain aspects of the single and continuous infringement and were not liable for them. On the other hand, no reduction in the basic amounts of the fines was granted to the undertakings belonging to the core group, which includes the applicants (recitals 1017 to 1020 and 1033 of the contested decision). Applying the 2006 Guidelines on setting fines, the Commission also granted Mitsubishi Cable Industries an additional reduction of 3% on account of its effective cooperation outside the scope of the Leniency Notice (recital 1041 of that decision).
Procedure and forms of order sought
By application lodged at the Registry of the General Court on 17 June 2014, the applicants brought the present action.
By documents lodged at the Court Registry on 27 October and 4 November 2014, Pirelli and Goldman Sachs respectively applied for leave to intervene in the case, the former in support of the form of order sought by the Commission and the latter in support of the form of order sought by the applicants.
By two orders of 25 June 2015, the President of the Eighth Chamber of the General Court (former composition) granted Pirelli and Goldman Sachs leave to intervene in the case.
Pirelli and Goldman Sachs each submitted their statement in intervention on 24 September 2015. The Commission submitted its observations on those statements in intervention by pleadings lodged at the Court Registry on 27 November 2015. On 30 November 2015, the applicants also submitted their observations on the statements in intervention lodged by Pirelli and Goldman Sachs.
By order of 14 September 2016, the President of the Eighth Chamber of the General Court granted the Commission’s applications, submitted on 10 and 23 December 2014, for confidential treatment in relation to the interveners. However, the President of the Eighth Chamber dismissed the applicants’ applications for confidential treatment of 7 January 2015 with respect to Pirelli and of 8 December 2015 with respect to Goldman Sachs, to the extent that those companies had contested those applications.
By way of measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, the General Court (Eighth Chamber) put certain questions to the parties for a written response. The parties answered those questions within the period prescribed.
As a result of changes to the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was attached to the Eighth Chamber (new composition), to which the present case has therefore been assigned.
In the context of the measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, the Court (Eighth Chamber) requested the Commission to produce documents. The Commission produced some of the documents requested and sought the adoption of a measure of inquiry in order to produce the other documents whose production was requested by the Court, namely the transcripts of the oral statements provided by ABB in its application for immunity, and by J-Power Systems in the context of its joint application for immunity with Sumitomo Electric Industries and Hitachi Cable. By orders of 9 February and 2 March 2017, the President of the Eighth Chamber of the General Court adopted a measure of inquiry requiring the Commission to produce the transcripts in question. The Commission complied with that measure of inquiry on 20 February and 9 March 2017.
Acting upon a proposal of the Judge-Rapporteur, the General Court (Eighth Chamber) decided to open the oral part of the procedure. The parties presented oral argument and answered the questions put to them by the Court at the hearing on 20 March 2017.
The applicants, supported by Goldman Sachs, claim that the General Court should:
–
annul the contested decision in so far as it relates to them;
–
in the alternative:
–
annul Article 1(5) of the contested decision in so far as the Commission found therein that PrysmianCS had participated in the abovementioned infringement from 18 February 1999 to 27 November 2001;
–
annul Articles 2(f) and (g) of the contested decision in so far as they set the level of the fines imposed jointly and severally on Goldman Sachs and the applicants and on PrysmianCS and Pirelli;
–
reduce the fines imposed on them;
–
annul Annexes I and II in so far as they refer to Mr R.;
–
order the Commission to pay the costs.
The Commission, supported by Pirelli, contends that the Court should:
–
dismiss the application;
–
order the applicants to pay the costs.
Law
In the application, the applicants seek annulment in part of the contested decision as well as the reduction of the fines imposed on them.
The claims for annulment
In support of the claims for annulment, the applicants put forward nine pleas in law. The first plea alleges that the Commission’s inspections were illegal; the second, infringement of the reasonable-time principle in competition proceedings; the third, infringement of the principle of sound administration; the fourth, wrongful attribution of liability to PrysmianCS in relation to the period prior to 27 November 2001; the fifth, infringement of Article 23(2) of Regulation No 1/2003, in so far as the Commission failed to determine the shares of the fines to be paid by those held jointly and severally liable from the perspective of their internal relationship; the sixth, failure to demonstrate to the requisite legal standard the existence of an infringement of Article 101 TFEU; the seventh, incorrect determination of the duration of the infringement; the eighth, infringement of Article 23(2) of Regulation No 1/2003 and of the 2006 Guidelines on setting fines and breach of the principles of equal treatment and proportionality in the calculation of the fines imposed; and, ninth, an error of fact by including Mr R. in the list of persons relevant for the contested decision.
The first plea in law, alleging that the Commission’s inspections were illegal
The applicants argue that certain steps taken by the Commission during the unannounced inspection to which they were required to submit from 28 to 30 January 2009 in accordance with the Commission’s decision of 9 January 2009 (‘the inspection decision’), are unlawful, on account in particular of the copy-images made of the hard drives of computers of three employees. In essence, they submit that the information obtained from those copy-images should not have been admitted in the administrative procedure or taken into account in the contested decision.
The applicants maintain that, by taking copies of all documents stored on the computers of Prysmian employees, without being aware of the nature of the documents or whether they were relevant, the Commission exceeded the powers conferred on it by Article 20(2) of Regulation No 1/2003 and breached the terms of the inspection decision by extending its geographic and temporal scope. According to the applicants, that regulation requires that all steps taken by the Commission in an inspection must be taken
in situ
, at the place indicated in that decision, which in this case was the applicants’ premises in Milan (Italy), and not at the Commission’s own offices. They add that such conduct by the Commission cannot be justified by the provisions of the institution’s explanatory note that they received regarding the inspections carried out pursuant to Article 20(4) of that regulation.
Moreover, the applicants maintain that the prolongation of the inspection by one month prevented them from being able properly to assess whether or not to submit an application for immunity, since, during that time, it was impossible for them to assess what significant added value they could provide over and above the evidence already gathered by the Commission.
The Commission disputes the applicants’ arguments.
Before responding to the parties’ arguments, it is appropriate to recall briefly the manner in which the inspection carried out by the Commission officials at the applicants’ premises was conducted.
–
The conduct of the inspection
As is apparent from the account of the facts set out in the judgment of 14 November 2012, Prysmian and Prysmian Cavi e Sistemi Energia v Commission (
T‑140/09
, not published,
EU:T:2012:597
), an account which was not disputed by the applicants at the hearing, on 28 January 2009, the Commission’s inspectors, accompanied by a representative of the Autorità Garante della Concorrenza e del Mercato (Competition Authority, Italy), visited the applicants’ premises in Milan in order to carry out an inspection pursuant to Article 20(4) of Regulation No 1/2003. They presented the undertaking with the inspection decision referring to ‘Prysmian ..., together with all undertakings directly or indirectly controlled by it, [including PrysmianCS]’ and the explanatory note on the inspections.
Subsequently, in the presence of the applicants’ representatives and lawyers, the inspectors examined the computers of five employees. On the second day of the inspection, namely on 29 January 2009, they informed the applicants that the inspection would take longer than the three days initially envisaged. The applicants stated that they were prepared either to allow access to their premises during the weekend, or for seals to be affixed to those premises so that the inspection could resume the following week. However, on the third day of the inspection, namely on 30 January 2009, the inspectors decided to take a copy-image of the hard drives of the computers of three of the five employees who were initially the subject of the investigation in order to examine the information contained on those hard drives at the Commission’s offices in Brussels (Belgium).
The applicants observed that the method of review envisaged by the inspectors was illegal. They argued that Article 20 of Regulation No 1/2003 provides that an inspection can be carried out ‘on the premises of undertakings’. They added that obtaining a copy-image of the hard drives of the computers in question is contrary to the ‘principle of relevance’, which should characterise the Commission’s investigative activities, under which material seized during an inspection must be relevant to the subject matter of the inspection.
The inspectors informed the applicants that any objection to the review procedure envisaged would be regarded as ‘non-cooperation’. The applicants therefore submitted to that procedure but drafted a statement, signed by the inspectors, by which they reserved the right to challenge the legality of that review procedure.
The inspectors made three copy-images of the hard drives of the computers in question. The copy-images of the hard drives of two computers were saved on a data-recording device. The copy-image of the hard drive of the third computer was saved on the hard drive of a computer of the Commission. The abovementioned data-recording device and the latter hard drive were placed in sealed envelopes which the inspectors took back to Brussels. The inspectors invited the applicants’ representatives to visit the Commission’s offices within two months so that the information copied could be examined in their presence.
On 26 February 2009, the sealed envelopes referred to in paragraph 43 above were opened in the presence of the applicants’ lawyers in the Commission’s offices. The inspectors examined the copy-images of the hard drives of the computers in question contained in those envelopes and printed out the documents that they considered relevant for the purposes of the investigation. A second paper copy of those documents and a list of them were given to the applicants’ lawyers. That process continued on 27 February 2009 and was completed on 2 March 2009. The office in which they were examined was sealed at the end of each working day, in the presence of the applicants’ lawyers, and opened again the following day, also in their presence. At the end of that process, the Commission wiped the copy‑images that it had made of the hard drives of the computers in question in the presence of the applicants’ representatives.
–
The alleged lack of legal basis
In essence, the applicants take issue with the Commission for having made a copy-image of the hard drives of the computers of certain Prysmian employees in order to use them subsequently for the purposes of the investigation in the Commission’s offices in Brussels, without first having ascertained that the documents contained thereon were relevant to the subject matter of the investigation. In their submission, that practice goes beyond the powers conferred on the Commission by Article 20(1) and (2) of Regulation No 1/2003.
As a preliminary point, it should be recalled that, as provided in Article 4 of Regulation No 1/2003, ‘for the purpose of applying Articles [101] and [102] of the Treaty, the Commission shall have the powers provided for by this Regulation’.
Article 20(1) of Regulation No 1/2003 provides that, in order to carry out the duties assigned to it by that regulation, the Commission may conduct all necessary inspections of undertakings and associations of undertakings.
As regards the Commission’s powers, Article 20(2) of Regulation No 1/2003 provides, inter alia, as follows:
‘The officials and other accompanying persons authorised by the Commission to conduct an inspection are empowered:
...
(b)
to examine the books and other records related to the business, irrespective of the medium on which they are stored;
(c)
to take or obtain in any form copies of or extracts from such books or records;
(d)
to seal any business premises and books or records for the period and to the extent necessary for the inspection;
…’
In the present case, the practice of making a copy-image of a hard drive of a computer or a copy of data stored on a digital data carrier is used in the context of the operation of forensic information technology (‘FIT’), which Commission officials use during inspections. As the Commission describes in its pleadings, without being challenged in this respect by the applicants, that technology involves using specific software to search the hard drive of a computer or any other digital-data carrier for relevant information in the light of the subject matter of the inspection by using keywords. That search requires a preliminary stage called ‘indexation’, during which the software puts all the letters and words on the hard drive of a computer or other digital data carrier under inspection in a catalogue. The duration of that indexation depends on the size of the digital data carrier in question, but this generally takes a considerable amount of time. In those conditions, Commission officials generally make a copy of the data contained on the undertaking’s digital data carrier under inspection in order to index the data stored on that carrier. In the case of a computer hard drive, that copy may take the form of a copy-image. That copy-image makes it possible to obtain a true copy of the hard drive under inspection, containing all the data on that hard drive at the precise moment that the copy is made, including files which have apparently been deleted.
In that regard, first, it should be stated that, in so far as (i), as was explained in paragraph 49 above, the copying of data stored on the digital data carrier of an undertaking under inspection is carried out for the purposes of indexation and (ii) that indexation is intended to make it possible to then search for documents relevant to the investigation, making such a copy falls within the scope of the powers conferred on the Commission by Article 20(2)(b) and (c) of Regulation No 1/2003.
Contrary to the applicants’ submission, it is not apparent from Article 20(2)(b) and (c) of Regulation No 1/2003 that the Commission’s power to take or obtain copies of or extracts from the books and records related to the business of an undertaking under inspection is limited to the books and records related to the business that it has already reviewed.
Moreover, it should be observed that such an interpretation could undermine the effectiveness of Article 20(2)(b) of Regulation No 1/2003, in so far as, in certain circumstances, the examination of the books and records related to the business of the undertaking under inspection may necessitate the copying of such books or business records beforehand, or be simplified, as in the present case, by that copying.
Consequently, given that making the copy-image of the hard drive of the computers in question was part of the process by which the Commission operated the FIT, the purpose of which was to search for information relevant to the investigation, the making of those copies fell within the scope of the powers provided for in Article 20(2)(b) and (c) of Regulation No 1/2003.
Second, to the extent that the applicants’ line of argument must be understood as meaning that they take issue with the Commission for having placed in the investigation file the contents of the copy-images of the hard drives of the computers in question without having checked beforehand whether all the documents contained on those copy-images were relevant to the subject matter of the inspection, it cannot succeed.
As is apparent from paragraph 44 above, it is only after having found, when reviewing the documents contained in the copy-images of the hard drives of the computers in question, at the Commission’s premises in Brussels and in the presence of the applicants’ representatives, that some of those documents were prima facie relevant in the light of the subject matter of the inspection, that the Commission finally placed a paper version of the documents in question in the investigation file.
It must therefore be held that, contrary to the applicants’ submission, the Commission officials did not place directly in the investigation file the documents contained in the copy-images of the hard drives of the computers in question without having checked beforehand whether they were relevant to the subject matter of the inspection.
Third, at the hearing, the applicants specified, in reply to a question put by the Court in this respect, that they did not dispute per se the making, during the inspections, of copy-images of the hard drives of the computers in question in the context of the operation of the FIT, but the fact that those copy-images were taken back to the Commission’s premises in Brussels so that a search for material relevant to the investigation could be conducted.
In that regard, it should be pointed out that Article 20(2)(b) of Regulation No 1/2003 does not provide — as the applicants claim — that the examination of the books or records related to the business of undertakings under inspection must be carried out exclusively at their premises if, as in the instant case, that inspection could not be completed within the timeframe initially envisaged. It merely requires the Commission to offer, when examining documents at its premises, the same guarantees to undertakings under inspection as those required of the Commission when conducting an on-the-spot examination.
In the present case, it should be pointed out that, in its pleadings, the applicants do not take issue with the Commission for having acted differently from the manner in which it would have acted if that examination had taken place at the applicants’ premises. In any event, it should be recalled, as is apparent from the statement of facts set out in paragraphs 43 and 44 above, that those copy-images were taken to Brussels in sealed envelopes, that the Commission gave the applicants a copy of the data, that the envelopes containing those copy-images were opened and examined on the date agreed with the applicants and in the presence of their representatives, that the Commission’s premises at which that examination took place were duly protected by being sealed, that the documents extracted from the data that the Commission decided to append to the investigation file were printed out and listed, and that copies thereof were provided to the applicants and that, at the end of the examination, the copy-images in question were definitively wiped.
In the light of the foregoing, it must be concluded that, during the inspection, the Commission did not go beyond the powers conferred on it under Article 20(2) of Regulation No 1/2003. The applicants’ complaint in that regard must therefore be rejected.
–
The alleged infringement of the inspection decision
As regards the applicants’ argument that by searching for information relevant to the investigation in the copy-images of the hard drives of the computers in question at the Commission’s premises in Brussels, the Commission infringed the geographic and temporal scope of the inspection decision, it should be recalled that, in accordance with the case-law of the Court of Justice, the statement of reasons for that decision limits the powers conferred on the Commission’s agents by Article 20(2) of Regulation No 1/2003 (judgment of 18 June 2015, Deutsche Bahn and Others v Commission,
C‑583/13 P
,
EU:C:2015:404
, paragraph
).
In the present case, as regards (i) the geographic scope of the inspection decision, it should be noted that the second paragraph of Article 1 of that decision states as follows:
‘The inspection can take place at any premises of [Prysmian] or of the undertakings under its control, and in particular at the offices located at Viale Scarca 222, 20126 Milan, Italy.’
It is therefore apparent from the inspection decision that, although the inspection ‘[could]’ take place at ‘any premises’ of the Prysmian group, and in particular at their offices located in Milan, the inspection was not required, as the applicants claim, to be conducted exclusively at their premises. Therefore, it did not rule out the possibility of the Commission continuing the inspection in Brussels.
As regards (ii) the temporal scope of the inspection decision, it should be pointed out that Article 2 thereof determined the date from which the inspection could take place, but did not specify the date by which it had to be completed.
It is true that the absence of any date by which the inspection had to be completed does not mean that the inspection could go on indefinitely, since the Commission is, in that regard, required to observe a reasonable time limit in accordance with Article 41(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
However, in the context of this plea, the applicants do not claim that the period of one month which elapsed between the inspection being conducted at the applicants’ premises and the continuation of that inspection in Brussels was unreasonable.
It follows that, contrary to what the applicants claim, the inspection decision did not preclude the Commission officials’ continuing, at the Commission’s Brussels premises, the search for material relevant to the investigation on the copy-images of the hard drives of the computers of certain Prysmian employees.
Moreover, in the light of the foregoing, it must be held that the Commission did not infringe the scope of the inspection decision by taking the measures at issue when conducting the inspection. The applicants’ complaints in that regard must therefore be rejected.
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The inability to submit an application for immunity
The applicants claim that the prolongation of the inspection between 28 January and 26 February 2009, the date on which the sealed envelopes containing the copy-images of the hard drives of the computers of certain Prysmian employees were opened, deprived them of the opportunity to carry out a risk assessment for the purposes of submitting an application for immunity. In particular, they submit that, in so far as they no longer had available information adding value to the evidence already gathered by the Commission, they were placed at a disadvantage in relation to other undertakings in the application for the leniency programme.
In that regard, it should be borne in mind that, in accordance with point 10 of the Leniency Notice, immunity from fines cannot be granted ‘if, at the time of the submission [of the information and evidence], the Commission had already sufficient evidence to adopt a decision to carry out an inspection in connection with the alleged cartel or had already carried out such an inspection’.
In the present case, as is apparent from the account of the facts set out in paragraphs 1 to 11 of the judgment of 14 November 2012, Prysmian and Prysmian Cavi e Sistemi Energia v Commission (
T‑140/09
, not published,
EU:T:2012:597
) — an account which the applicants do not contest — the Commission had sufficient evidence, in relation to high voltage submarine and underground power cables, to order the inspection that was conducted at Prysmian’s premises. It follows that the applicants could not have benefited from immunity from fines under the Leniency Notice.
Admittedly, in accordance with point 23 of the Leniency Notice, undertakings disclosing their participation in an alleged cartel affecting the European Union that do not meet the conditions to benefit from immunity from fines may be eligible to benefit from a reduction of any fine that would otherwise have been imposed. According to point 24 of that notice, in order to qualify for this, an undertaking must provide the Commission with evidence of the alleged infringement which represents significant added value with respect to the evidence already in the Commission’s possession.
However, it must be observed that making copy-images of the hard drives of the computers of certain Prysmian employees did not deprive the applicants of the information contained on those hard drives, which remained in their possession in the same original state. They were thus fully able to determine what information was not in those digital copies and which, in the light of the subject matter of the inspection, was capable of adding significant value with respect to the evidence already in the Commission’s possession.
Moreover, even if, as the applicants essentially submit, the Commission already possessed hard drives of computers containing the information which could have been submitted in their application for partial immunity, it should again be recalled that the fact that the Commission made copy-images of the drives of certain Prysmian employees does not mean that it inspected the drives and that it had already had access to the information set out in them. Such an inspection continued only after those copy-images were extracted from the sealed envelopes in Brussels. In that context, the applicants were still able to examine the content of those hard drives and to inform the Commission about documents or evidence contained in those hard drives that might add value to the evidence already gathered by the Commission in the context of the investigation.
It follows that, contrary to the applicants’ submission, the Commission did not prevent them from being able to assess whether or not to submit an application for partial immunity.
It follows from all the foregoing considerations that the copies of the electronic data in question were not obtained illegally. Consequently, contrary to what the applicants claim, the Commission could legitimately use that data to support its conclusions relating to the existence of the infringement found in the contested decision.
The first plea must therefore be rejected.
The second plea in law, alleging infringement of the reasonable-time principle
The applicants claim that the contested decision must be annulled in so far as the total length of the procedure, namely 62 months, and the length of each of its constituent stages, greatly exceeded what can be regarded as reasonable. In particular, they argue that they were unable to prepare their defence, since, in the period prior to receipt of the statement of objections, the precise subject matter of the investigation was unclear. They also emphasise that the passage of years made recollections of the facts complained of by the Commission vaguer. Lastly, they submit that, in accordance with case-law, the Commission should have applied an equitable reduction to the fine as compensation for the excessive length of the administrative procedure.
The Commission disputes the applicants’ arguments.
According to settled case-law, compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy constitutes a general principle of EU law whose observance the EU judicature ensures (see judgment of 19 December 2012, Heineken Nederland and Heineken v Commission,
C‑452/11 P
, not published,
EU:C:2012:829
, paragraph
and the case-law cited).
The principle that an administrative procedure must be conducted within a reasonable time has been reaffirmed by Article 41(1) of the Charter, under which ‘every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union’ (see judgment of 5 June 2012, Imperial Chemical Industries v Commission,
T‑214/06
,
EU:T:2012:275
, paragraph
and the case-law cited).
Whether the time taken for each step of a procedure is reasonable must be assessed in relation to the individual circumstances of each case, and in particular its context, the conduct of the parties during the procedure, what is at stake for the various undertakings concerned and its complexity (see, to that effect, judgment of 20 April 1999, Limburgse Vinyl Maatschappij and Others v Commission,
T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94
,
EU:T:1999:80
, paragraph
).
The Court has also held that, in matters relating to competition policy before the Commission, the administrative procedure may involve an examination in two successive stages, each corresponding to its own internal logic. The first stage, covering the period up to notification of the statement of objections, begins on the date on which the Commission, exercising the powers conferred on it by the EU legislature, takes measures which imply an accusation of an infringement and must enable the Commission to adopt a position on the course which the procedure is to follow. The second stage covers the period from notification of the statement of objections to adoption of the final decision. It must enable the Commission to reach a final decision on the infringement concerned (judgment of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission,
C‑105/04 P
,
EU:C:2006:592
, paragraph
).
Moreover, it is apparent from the case-law that, where the breach of the reasonable-time principle has had a possible effect on the outcome of the procedure, that breach may entail the annulment of the contested decision (see, to that effect, judgment of 21 September 2006, Technische Unie v Commission,
C‑113/04 P
,
EU:C:2006:593
, paragraph
and the case-law cited).
It should be pointed out nevertheless that, for the purposes of the application of the competition rules, a failure to act within a reasonable time can constitute a ground for annulment only in cases of decisions finding infringements, where it has been proved that the breach of the reasonable-time principle has adversely affected the rights of defence of the undertakings concerned. Except in that specific circumstance, failure to comply with the obligation to adopt a decision within a reasonable time cannot affect the validity of the administrative procedure under Regulation No 1/2003 (judgment of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission,
C‑105/04 P
,
EU:C:2006:592
, paragraph
).
Lastly, as respect for the rights of the defence, a principle whose fundamental nature has been emphasised on many occasions in the case-law of the Court, is of crucial importance in procedures such as that followed in the present case, it is essential to prevent those rights from being irremediably compromised on account of the excessive duration of the investigation phase and to ensure that the duration of that phase does not impede the establishment of evidence designed to refute the existence of conduct susceptible of rendering the undertakings concerned liable. For that reason, examination of any interference with the exercise of the rights of the defence must not be confined to the actual phase in which those rights are fully effective, that is to say, the second phase of the administrative procedure. The assessment of the source of any undermining of the effectiveness of the rights of the defence must extend to the entire procedure and be carried out by reference to its total duration (see judgment of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission,
C‑105/04 P
,
EU:C:2006:592
, paragraph
and the case-law cited).
In the present case, it must be stated that, as regards the first phase of the administrative procedure, a period of 29 months elapsed from the notification to the applicants of the inspection decision in January 2009 until the receipt of the statement of objections in June 2011. The second phase of the administrative procedure, from the receipt of the statement of objections to the adoption of the contested decision in April 2014, covers a period of 33 months.
In that regard, it must be held that the duration of the first phase of the administrative procedure and the duration of the second phase of that procedure are not excessive, in the light of the steps that the Commission took to complete the investigation and adopt the contested decision.
First of all, as the Commission observes, the investigation related to a cartel of global scope, with a high total number of participants, which lasted for almost 10 years, and during which the Commission was required to uncover vast amounts of evidence included in the file, including all the evidence collected during the inspections and received from the leniency applicants. Moreover, during that investigation, the Commission sent participants in the sector concerned several requests for information in accordance with Article 18 of Regulation No 1/2003 and with point 12 of the Leniency Notice.
Next, the volume of evidence led the Commission to adopt a decision, in its English-language version, of 287 pages, Annex I of which contains moreover all the complete references to all the evidence collected during the investigation phase; the breadth and scope of the cartel and the linguistic difficulties are also noteworthy. The contested decision had 26 addressees from a wide range of countries; a large number of those addressees participated in the cartel under various legal forms and were restructured during and after the cartel period. In addition, that decision, drafted in English, had to be translated in full into German, French and Italian.
Lastly, it is apparent from the background to the dispute set out in paragraphs 3 to 10 above that, in the context of the administrative procedure, the Commission adopted a whole series of steps which justify the duration of each phase of that procedure and whose appropriateness for the purposes of the investigation the applicants did not specifically challenge, even though questions were put to them in this respect at the hearing.
Accordingly, the duration of the two phases of the administrative procedure was reasonable in order to enable the Commission to assess thoroughly the evidence and arguments raised by the parties concerned by the investigation.
It follows that the applicants cannot reasonably claim that duration of the administrative procedure before the Commission was excessive and that the Commission infringed the reasonable-time principle.
In any event, even were it to be found that the overall duration of the administrative procedure was excessive and that the reasonable-time principle was infringed, such a finding would be insufficient, in itself, in the light of the case-law cited in paragraphs 84 to 86 above, to conclude that the contested decision should be annulled.
In the first place, according to the applicants, their rights of defence were infringed inasmuch as they were unable to identify precisely the subject matter of the investigation conducted by the Commission until they received the statement of objections.
In that regard, it should be pointed out that, having regard to the fact that inspections take place at the beginning of an investigation, the Commission still lacks precise information to make a specific legal assessment and must first verify the accuracy of its suspicions and the scope of the incidents which have taken place, the aim of the inspection being specifically to gather evidence relating to a suspected infringement (see judgment of 25 June 2014, Nexans and Nexans France v Commission,
C‑37/13 P
,
EU:C:2014:2030
, paragraph
and the case-law cited).
The inspection decision addressed to the applicants in January 2009 provided that the Commission’s investigation related to specific anticompetitive practices such as the allocation of markets or the exchange of information in the submarine and underground power cable sector. Notwithstanding the fact that that decision was annulled in part, in relation to power cables other than high voltage submarine and underground power cables, and contrary to the applicants’ submission, that wording made it possible to determine precisely the subject matter of the investigation, to identify what the infringements of Article 101(1) TFEU of which the applicants could be accused were, and to know on which markets those infringements allegedly occurred.
Next, the requests for information sent to the applicants specified the types of meetings, the dates and the locations being investigated by the Commission. Thus, the applicants were able to infer from those requests what the events and meetings to which the Commission’s suspicions related were. Accordingly, the applicants cannot reasonably submit that they were not informed, from the beginning of the investigation, of its subject matter and the Commission’s possible objections. They were therefore in a position to prepare their defence from that point in time and to gather the exculpatory evidence in their possession and put questions to the employees involved.
In the second place, the applicants submit that the content and the context of the handwritten notes used by the Commission as evidence of the anticompetitive meetings could not be reconstructed on account of the fading recollections of the participants in those meetings.
That argument cannot be accepted. Although the longer ago an event occurred, the harder it is to recollect it, thus making the defence more difficult, the applicants have failed to indicate which specific difficulties they experienced.
Moreover, it is clear from settled case-law that, by virtue of a general duty of care attaching to any undertaking or association of undertakings, the applicants are required to ensure the proper maintenance of records in their books or files of information enabling details of their activities to be retrieved, in order, in particular, to make the necessary evidence available in the event of legal or administrative proceedings (see, to that effect, judgment of 16 June 2011, Heineken Nederland and Heineken v Commission,
T‑240/07
,
EU:T:2011:284
, paragraph
and the case-law cited). When, as the applicants acknowledge in their application, they received requests for information from the Commission under Article 18 of Regulation No 1/2003, it was a fortiori incumbent on them to act with greater diligence and to take all appropriate measures in order to preserve such evidence as might reasonably be available to them.
In the light of the foregoing, it must be held that, even were it to be found that a reasonable period of time was exceeded in the present case, the applicants have not succeeded in showing that the excessive nature of that period actually undermined their rights of defence.
The second plea must therefore be rejected
As regards the applicants’ line of argument put forward in the context of this plea that ‘the Commission [did not apply] an equitable reduction to the fine[s] [imposed on them] due to the excessive duration of the [administrative] procedure’ and the ‘fair compensation’ that they consequently claim, it must be regarded as being raised in support of their claim for reduction of that fine which will be examined in paragraph 2711 below.
The third plea, alleging infringement of the principle of sound administration
The applicants claim that the contested decision is based on vague, imprecise and uncorroborated oral allegations in the leniency applications. Moreover, they complain that the Commission failed to accompany those statements with direct evidence and to interpret them with caution, as the case-law requires. According to the applicants, the Commission thereby infringed the principle of sound administration.
Moreover, the applicants call into question the credibility of the statements of the leniency applicants, inasmuch as those statements were not made by direct witnesses of the facts alleged, but by outside counsel. With regard in particular to the second leniency applicant, they observe that those statements were made by an attorney who had a conflict of interest.
The Commission disputes those arguments.
According to Article 41(1) of the Charter, entitled ‘Right to good administration’, ‘every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union’.
Moreover, Article 48(1) of the Charter, entitled ‘Presumption of innocence and right of defence’, provides that ‘everyone who has been charged shall be presumed innocent until proved guilty according to law’.
According to the case-law, in a procedure seeking to impose a fine on undertakings for an infringement of Article 101 TFEU, the Commission may not confine itself to examining the evidence put forward by the undertakings, but must, as a matter of sound administration, play its part, using the means available to it, in ascertaining the relevant facts and circumstances (see, to that effect, judgment of 13 July 1966, Consten and Grundig v Commission,
56/64 and 58/64
,
EU:C:1966:41
, p.
).
By the third plea, the applicants cast doubt on the credibility and precision of the evidence that the Commission uses to impute an infringement of Article 101 TFEU to them. In that regard, it should be pointed out, first, that their line of argument relating to the infringement of Article 101 TFEU and that there is insufficient proof to find that they participated in a single and continuous infringement of that article will be examined in conjunction with similar arguments put forward in the context of the sixth plea (see paragraphs 168 to 186 below).
Second, as regards the applicants’ line of argument relating to the vague and imprecise nature of the oral statements of the leniency applicants, it should be recalled that, according to settled case-law, whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents appended thereto, a general reference to other documents, even those appended to the application, cannot make up for the absence of the essential arguments in law which must appear in the application (see judgments of 17 September 2007, Microsoft v Commission,
T‑201/04
,
EU:T:2007:289
, paragraph
and the case-law cited). In the present case, that line of argument is merely the subject of a reference to the annexes to the application. Accordingly, it must be held that that line of argument is inadmissible.
Third, the applicants cannot reasonably call into question the exhaustive nature of the investigation procedure in order to claim that the Commission infringed the principle of sound administration.
As the Commission observes, in addition to the information obtained by means of the leniency statements, the investigation procedure led to unannounced inspections at the premises of Nexans, Nexans France and the applicants, to multiple requests for information and to letters of facts to each of the addressees, and to written and oral submissions by the parties, amounting to a documentary file composed in large part of emails, notes, position sheets, etc. That evidence is mentioned in section 3 of the contested decision, entitled ‘Description of Events’, which contains 398 recitals and 784 footnotes, and further evidence is appended in Annex I to that decision.
Consequently, the applicants’ criticisms, which are moreover formulated in a generic and unsubstantiated manner, that (i) the Commission relied entirely on oral statements gathered on the basis of the leniency programme without conducting an independent investigation and (ii) the Commission infringed the principle of sound administration when examining the evidence gathered in the investigation procedure must be rejected.
As regards the alleged conflict of interests affecting one of the lawyers who made statements in the context of the joint application for immunity lodged on 2 February 2009 by Sumitomo Electric Industries, Hitachi Cable and J-Power Systems, it is sufficient to observe that that argument is unsupported by any specific evidence, and must therefore be rejected.
In the light of the foregoing, it must be held that the Commission did not infringe the principle of sound administration.
The third plea must therefore be rejected.
The fourth plea in law, alleging wrongful attribution of liability to PrysmianCS in relation to the period prior to 27 November 2001
The applicants submit that the Commission erred in holding PrysmianCS liable in relation to a period of time when it did not even exist, that is to say, the period prior to 27 November 2001. The plea divides into two limbs, the first alleging breach of the principle of personal responsibility and the second alleging breach of the principle of equal treatment and the duty to state reasons.
–
The first limb, alleging breach of the principle of personal responsibility
The applicants take issue with the conclusion, stated by the Commission in recital 730 of the contested decision, that PirelliCSE, which later became PrysmianCSE and subsequently PrysmianCS, was the ‘legal and economic successor’ of PirelliCS and must therefore answer for the anticompetitive conduct of that company prior to 27 November 2001.
In particular, regarding the finding concerning legal succession, the applicants point out that on 27 November 2001, upon the partial demerger of PirelliCS, the principal assets relating to PirelliCS’s energy business were transferred to PirelliCSE. However, that company assumed neither the rights nor the obligations of PirelliCS and consequently it cannot be regarded as its legal successor. On the contrary, since, according to the applicants, PirelliCS was absorbed by Pirelli on 30 December 2002, Pirelli became the legal successor of PirelliCS and should therefore answer for the alleged infringement in relation to the period up to 27 November 2001.
Regarding the finding concerning legal succession, the applicants submit that the Commission erred in finding that PirelliCSE was PirelliCS’s successor. In that regard, they observe that the principle of economic continuity is an exception to the principle of personal responsibility and applies under strict conditions where that principle would not ensure the effectiveness and the deterrent effect of the competition rules. They add that, according to case-law, the theory of economic succession can apply only if the structural links between the transferor and the transferee of the assets exist at the time when the Commission adopts its decision. According to the applicants, the legal entities which formed the undertaking responsible for the power cable business up to 27 November 2001, that is to say PirelliCS and Pirelli, now form a single entity and it is to that entity that liability for the infringing conduct up to that date should be ascribed.
The Commission and Pirelli dispute the applicants’ arguments
As a preliminary point, it is apparent from section 5.2.2 of the contested decision and, in particular, from recital 729 thereof, that the Commission found that PrysmianCS was liable for the single and continuous infringement committed by the division operating its power cable activities for the entire duration of the infringement, that is to say from 18 February 1999 until 28 January 2009.
More specifically, according to recital 730 of the contested decision, the Pirelli group’s power cable activities were initially performed by PirelliCS, then, from 1 July 2001, by PirelliCSE Italia SpA and, lastly, from 27 November 2001, by PirelliCSE. Moreover, according to recitals 739 to 741 of that decision, following the acquisition of PirelliCSE by a subsidiary of Goldman Sachs on 28 July 2005, PirelliCSE became PrysmianCSE and, subsequently, PrysmianCS.
In that context, the Commission considered PirelliCSE and, consequently, PrysmianCS as the ‘legal and economic successor[s]’ of PirelliCS, to be liable for the infringement in respect of the period preceding 27 November 2001, which the applicants dispute. It should be noted, similarly, that, as the parties specified in their pleadings, on 30 December 2002, PirelliCS merged through absorption with Pirelli SpA, which in turn merged with Pirelli on 4 August 2003. According to the applicants, it is therefore Pirelli, as the legal successor of PirelliCS, rather than PirelliCSE, which should be held solely liable for the infringing conduct alleged in respect of the period prior to 27 November 2001.
It is settled case-law that EU competition law refers to the activities of undertakings and the concept of an undertaking covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed. When such an entity infringes competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (see judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin,
C‑434/13 P
,
EU:C:2014:2456
, paragraph
and the case-law cited).
The Court has noted that, when an entity that has committed an infringement of the competition rules is subject to a legal or organisational change, this change does not necessarily create a new undertaking free of liability for the conduct of its predecessor that infringed those rules, when, from an economic point of view, the two entities are identical. If undertakings could escape penalties by simply changing their identity through restructurings, sales or other legal or organisational changes, the objective of suppressing conduct that infringes those rules and preventing its reoccurrence by means of deterrent penalties would be jeopardised (see judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin,
C‑434/13 P
,
EU:C:2014:2456
, paragraph
and the case-law cited).
The Court has thus held that where two entities constitute one economic entity, the fact that the entity that committed the infringement still exists does not as such preclude imposing a penalty on the entity to which its economic activities were transferred. In particular, applying penalties in this way is permissible where those entities have been under the control of the same person and have therefore, given the close economic and organisational links between them, carried out, in all material respects, the same commercial instructions (see judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin,
C‑434/13 P
,
EU:C:2014:2456
, paragraph
and the case-law cited).
In the present case, as explained in paragraph 125 above, the power cable activities within the Pirelli group were performed by an entity which participated directly in the infringement at issue and which was the subject of several internal restructurings and transfers between 18 February 1999 and 28 July 2005. However, those operations do not prevent the Commission from concluding, in particular, that PirelliCSE became the economic successor of PirelliCS from 27 November 2001 onwards and that, for that reason, PirelliCSE must be held liable for participation in the infringement at issue for the period until 27 November 2001.
As is reported in the contested decision, between 18 February 1999 and 1 July 2001, the entity operating the power cable business within the Pirelli group and participating directly in the infringement at issue was first integrated into PirelliCS in the form of a specific division. Subsequently, on 1 July 2001, PirelliCS transferred parts of its operational activities in the power cables sector to its subsidiary, PirelliCSE Italia. The transfer concerned the Italian assets and the manufacturing facilities of the power cable business. Moreover, on 27 November 2001, PirelliCS transferred the remaining part of its power cable business and the shareholding in PirelliCSE Italia, including the entity participating in the infringement at issue, to PirelliCSE. Even though the applicants claimed in their pleadings that not all PirelliCS’s assets were transferred to PirelliCSE, that claim is contradicted by paragraph 37 of the applicants’ reply to the statement of objections of 24 October 2011 annexed to the application. In addition, the Court was able to establish, further to a question put at the hearing, that the assets which were not transferred to PirelliCSE were, in the present case, of a solely marginal and non-productive nature. Lastly, it is apparent from the foregoing that, from 27 November 2001 onwards, PirelliCSE became the sole undertaking with full control of the submarine and underground power cable business within that group.
Moreover, it is important to note that, at the time that the first transfer of assets between PirelliCS and PirelliCSE Italia occurred, there were close links between those two entities within the meaning of the case-law cited in paragraph 129 above, in that PirelliCSE Italia was the wholly-owned subsidiary of PirelliCS and that, as is apparent from recital 730 of the contested decision, the two belonged to the same Pirelli group. In addition, at the time of the second transfer of assets, PirelliCS and PirelliCSE, given the close economic and organisational links between them, carried out, in all material respects, the same commercial instructions. In that regard, it should be borne in mind (i) that those two entities were under the control of the same legal person, namely Pirelli SpA, which subsequently became Pirelli and (ii) that, in recitals 737 and 738 of that decision, the Commission found that, from 18 February 1999 until 28 July 2005, Pirelli exercised decisive influence over the power cable business unit involved in the cartel, which the applicants have not disputed.
It follows that, in accordance with the principle of economic continuity, as defined in the case-law of the Court, the Commission was right to take the view that liability for the infringing conduct of PirelliCS until 27 November 2001 was transferred to PirelliCSE.
The foregoing conclusion cannot validly be called into question by the other arguments submitted by the applicants.
First, the applicants’ argument that the close links between the transferor and the transferee must exist at the time the Commission issues its infringement decision must be rejected. Whilst there must, on the date of the transfer, be structural links between the transferor and the transferee on the basis of which it may be considered, in accordance with the principle of personal responsibility, that the two entities form a single undertaking, those links need not, in view of the purpose of the principle of economic continuity, subsist throughout the rest of the infringement period or until the adoption of a decision penalising the infringement (judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin,
C‑434/13 P
,
EU:C:2014:2456
, paragraph
).
Second, the applicants’ argument that PrysmianCS should not be held liable for a period when it did not even exist cannot be accepted. In that regard, it is sufficient to observe that a situation of economic continuity of a newly-created undertaking, as in the present case, to which the assets of a certain economic activity are transferred and which is subsequently passed to an independent third party, cannot be ruled out (see, to that effect, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin,
C‑434/13 P
,
EU:C:2014:2456
, paragraph
).
Third, it is necessary to reject the applicants’ argument that, given that PirelliCS continued to exist until it merged with Pirelli SpA on 30 December 2002, Pirelli should be held liable for the portion of the infringement until the complete transfer of the activities in the cable sector to PirelliCSE. In that regard, as is clear from the case-law, where two entities constitute one economic entity, the fact that the entity that committed the infringement still exists does not as such preclude imposing a penalty on the entity to which its economic activities were transferred (judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin,
C‑434/13 P
,
EU:C:2014:2456
, paragraph
).
Fourth, the fact that Pirelli was still a viable company when the Commission adopted the contested decision cannot justify, as the applicants assert, liability being imputed to it for direct participation in the cartel, in particular until 27 November 2001. It is sufficient to observe that the economic viability, on the date that the contested decision is adopted, of the former parent company of the undertaking concerned is not one of the criteria which, according to the case-law of the Court of Justice cited in paragraphs 128 and 129 above, must be taken into account for the purposes of applying the principle of economic continuity. Moreover, it should be recalled that Pirelli’s liability as parent company until 28 July 2005 was recognised in that decision, inasmuch as, under Article 2(g) of that decision, it is held jointly and severally liable for payment of a part of the fine.
In the light of the foregoing, it must be held that the Commission did not infringe the principle of personal responsibility by imputing to PirelliCSE liability for direct participation in the infringement in respect of the period preceding 27 November 2001.
As to the remainder, even if, as the applicants submit, the Commission erred in considering PirelliCSE to be PirelliCS’s legal successor, that finding is irrelevant for the purposes of imputing liability to PirelliCSE for direct participation in the infringement before 27 November 2001, since, in any event, the Commission correctly found that PirelliCSE was PirelliCS’s economic successor and therefore liable for that period.
The first limb of this plea must be rejected.
–
The second limb, alleging breach of the principle of equal treatment and of the duty to state reasons
The applicants argue that the Commission breached the principle of equal treatment and the duty to state reasons, essentially on the ground that PrysmianCS is the only entity to have been held liable as successor of another undertaking. In their submission, Nexans France and Silec Cable escaped the attribution of liability even though their situations were similar.
The Commission and Pirelli dispute the applicants’ claims.
According to settled case-law, the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgments of 27 June 2012, Bolloré v Commission,
T‑372/10
,
EU:T:2012:325
, paragraph
and the case-law cited, and of 19 January 2016, Mitsubishi Electric v Commission,
T‑409/12
,
EU:T:2016:17
, paragraph
and the case-law cited).
Moreover, the Court has recently recalled that, when an undertaking has, by its conduct, infringed Article 101 TFEU, it cannot escape being penalised on the ground that another economic operator has not been fined. An undertaking on which a fine has been imposed for its participation in a cartel in breach of the competition rules cannot request the annulment or reduction of that fine on the ground that another participant in the same cartel was not penalised in respect of a part, or all, of its participation in that cartel (see, to that effect, judgments of 16 June 2016, Evonik Degussa and AlzChem v Commission,
C‑155/14 P
,
EU:C:2016:446
, paragraphs
and
, and of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission,
C‑615/15 P
, not published,
EU:C:2017:190
, paragraphs
and
and the case-law cited).
The principle of equal treatment must be reconciled with the principle of legality and thus a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party. A possible unlawful act committed with regard to another undertaking, which is not party to the present proceedings, cannot lead to a finding by the EU judicature that it is discriminatory and, therefore, unlawful with regard to the applicants. Such an approach would be tantamount to laying down a principle of ‘equal treatment in illegality’ and to requiring the Commission, in the present case, to disregard the evidence in its possession to sanction the undertaking which has committed a punishable infringement, solely on the ground that another undertaking which may find itself in a comparable situation has unlawfully escaped being penalised. In addition, as is clear from the case-law on the principle of equal treatment, where an undertaking has acted in breach of Article 101(1) TFEU, it cannot escape being penalised altogether on the ground that other undertakings have not been fined, where, as in this case, those undertakings’ circumstances are not the subject of proceedings before the EU judicature (see, to that effect, judgment of 16 November 2006, Peróxidos Orgánicos v Commission,
T‑120/04
,
EU:T:2006:350
, paragraph
).
In the present case, it should be pointed out that, as is apparent from paragraph 139 above, the Commission did not commit any infringement of the principle of personal responsibility by imputing to PirelliCSE and, consequently, to PrysmianCS, liability for participation in the infringement for the period until 27 November 2001. Consequently, even if the Commission committed a possible unlawful act by not holding Nexans France and Silec Cable liable — as the applicants claimed — the Court considers, in the light of the case-law cited in paragraphs 145 and 146 above, that such a possible unlawful act, which is not the subject of these proceedings, cannot under any circumstances lead it to find that the applicants have been the subject of discrimination and therefore an unlawful act.
The second limb of this plea must therefore be rejected, as must, therefore, this plea in its entirety.
The fifth plea in law, alleging infringement of Article 23(2) of Regulation No 1/2003 in so far as the Commission failed to determine the share of the fine to be paid by each of those held jointly and severally liable from the perspective of their internal relationship
The applicants, as well as Goldman Sachs, claim that the Commission should have determined the share of the fine to be paid by each of those held jointly and severally liable from the perspective of their internal relationship. They state that such a determination is not necessary if the companies belong to the same group at the time the decision at issue is adopted. By contrast, if the economic unit formed by the companies no longer exists, as in the present case, the Commission should be compelled to make that determination in that decision.
The Commission and Pirelli dispute those arguments.
According to the Court’s case-law, inasmuch as it is merely the manifestation of an
ipso jure
effect of the concept of an ‘undertaking’, the EU law concept of joint and several liability for payment of a fine concerns only the undertaking itself and not the companies of which it is made up (see judgment of 26 January 2017, Villeroy & Boch v Commission,
C‑625/13 P
,
EU:C:2017:52
, paragraph
and the case-law cited).
While it follows from Article 23(2) of Regulation No 1/2003 that the Commission is entitled to hold a number of companies jointly and severally liable for payment of a fine, in so far as they formed part of the same undertaking, it is not possible to conclude on the basis of either the wording of that provision or the objective of the joint and several liability mechanism that that power to impose penalties extends, beyond the determination of joint and several liability from an external perspective, to the power to determine the shares to be paid by each of those held jointly and severally liable from the perspective of their internal relationship (see judgment of 26 January 2017, Villeroy & Boch v Commission,
C‑625/13 P
,
EU:C:2017:52
, paragraph
and the case-law cited).
On the contrary, the mechanism of joint and several liability is intended to constitute an additional legal device available to the Commission to strengthen the effectiveness of the action taken by it for the recovery of fines imposed for infringements of the competition rules, since that mechanism reduces for the Commission, as creditor of the debt represented by such fines, the risk of insolvency: that is part of the objective of deterrence pursued generally by competition law (see judgment of 26 January 2017, Villeroy & Boch v Commission,
C‑625/13 P
,
EU:C:2017:52
, paragraph
and the case-law cited).
The determination, in the context of the internal relationship of those held jointly and severally liable for payment of a fine, of the shares each of them is required to pay does not pursue that dual objective. That is a contentious issue, to be resolved at a later stage, and, in principle, the Commission no longer has any interest in the matter where the fine has been paid in full by one or more of those held liable (see judgment of 26 January 2017, Villeroy & Boch v Commission,
C‑625/13 P
,
EU:C:2017:52
, paragraph
and the case-law cited).
In the present case, in the light of the case-law cited in paragraphs 151 to 154 above, the Commission was not required to determine the shares to be paid by the applicants and the interveners from the perspective of their internal relationship. In so far as, as is apparent from the examination carried out in the context of the first plea, the Commission was right to conclude that, throughout the entire infringement period, the applicants and the interveners constituted a single undertaking for the purposes of competition law, it was entitled to confine itself to determining the amount of the fine that those companies were jointly and severally liable to pay.
Furthermore, the applicants’ argument that, on the date that the contested decision was adopted, the interveners no longer constituted with them a single entity cannot call into question the finding made in the previous paragraph.
It should be pointed out that to accept that argument would run counter to the very concept of joint and several liability. The joint and several liability mechanism implies, by definition, that the Commission may address either the parent company or the subsidiary without apportioning liability in the manner claimed by the applicants. As the Court has held, there is no order of priority when the Commission is imposing a fine on one or other of those companies (see judgment of 18 July 2013, Dow Chemical and Others v Commission,
C‑499/11 P
,
EU:C:2013:482
, paragraph
and the case-law cited).
Moreover, to accept such an argument would be liable to harm the objective of the joint and several liability mechanism, which, according to the case-law cited in paragraph 153 above, is to constitute an additional legal device available to the Commission to strengthen both the effectiveness of the recovery of fines imposed and the objective of deterrence pursued generally by competition law.
In the light of the foregoing, it must be held that the Commission did not infringe the provisions of Article 23(2) of Regulation No 1/2003 by failing to determine the shares of the fine to be paid by each of the applicants and the interveners from the perspective of their internal relationship.
The fifth plea must therefore be rejected.
The sixth plea, alleging failure to demonstrate to the requisite legal standard the existence of an infringement of Article 101 TFEU
The applicants argue, in essence, that the Commission failed to demonstrate to the requisite legal standard the existence of any anticompetitive agreement contrary to Article 101 TFEU or, consequently, their involvement in any such agreement. They state that the existence of the ‘home territory’ agreement is not sufficiently proven by the evidence. As a result, the existence of the ‘European cartel configuration’, as described by the Commission, is insufficiently proven.
First of all, the applicants submit that the conclusions drawn by the Commission as to the existence of the ‘home territory’ agreement are based on tautological reasoning which leaves them no room to defend themselves. In that regard, they maintain that the Commission has not produced any direct evidence of the existence of such a principle. They also take issue with the Commission’s interpretation of the absence of any discussions about European projects as an indication of the existence of an anticompetitive agreement and with its interpretation of the attempts of Japanese and South Korean companies to ‘enter’ the EEA market not as an indication of competition, but as a breach of the home territory principle.
Second, the applicants assert that, during the administrative procedure, they put forward many alternative explanations of the events described in the contested decision, as well as explanations of the fact that the Japanese and South Korean producers had no real reason to compete in the EEA.
The applicants observe that ‘A/R/K’ trilateral export cooperation meetings were held between 1998 and 2005 in the wake of the Super Tension Export Arrangement (‘STEA’) and the Sub-Marine Export Arrangement (‘SMEA’) concerning projects executed or to be executed outside the EEA, although no agreement was reached.
In addition, the applicants allege that there were several impediments that prevented Japanese and South Korean companies from operating in the EEA and European companies from operating in Japan and South Korea. In particular, the technical features of the projects vary significantly from country to country, there are cultural and linguistic differences, certain network operators refuse to deal with suppliers that do not have at least one local representative physically present in the country in question, and there are transport costs. Lastly, the applicants maintain that the fact that, since the investigation began, several Japanese and South Korean parties had taken steps to enter the EEA does not undermine these arguments.
Third, the applicants emphasise that, since the Commission failed to demonstrate the existence of the ‘home territory’ agreement, it cannot allege against the applicants the existence of a cartel to allocate projects at European level.
The Commission disputes those arguments.
In the context of this plea, the applicants reiterate arguments intended to show that the Commission relied exclusively on leniency applications for the purpose of making its findings, which thus reflects a lax attitude. However, as is apparent from the examination carried out in the third plea, alleging that the Commission infringed the principle of sound administration, the assertion that the Commission relied entirely on oral statements gathered in the context of the leniency programme without conducting an independent investigation is unsubstantiated by material in the contested decision and, in particular, by the content of section 3 of that decision, in which, as is apparent from paragraph 114 above, the Commission sets out the variety of evidence that it used to substantiate its findings regarding the cartel.
As regards the applicants’ arguments that the Commission has not succeeded in demonstrating the existence of the ‘home territory’ agreement, it is apparent from paragraph 12 above, and from recital 76 et seq. of the contested decision, that, under that agreement, the South Korean and Japanese producers agreed not to compete with the European producers in the European ‘home territory’, as defined by the cartel participants, in return for a commitment by the European producers not to compete with them in the ‘home territories’ in particular of Japan and South Korea. According to the Commission, that agreement was linked to the ‘export territories’ agreement, which consisted in allocating between the European producers, on the one hand, and the Japanese and South Korean producers, on the other, projects located outside the ‘home territories’ on the basis of a ‘60/40 quota’. In that regard, it is apparent from recitals 79 and 247 of that decision that for a long time Greece was not part of the European ‘home territory’ for the purposes of the agreement in question and that the projects located in Greece counted towards the ‘export territories’ allocation.
The existence of a ‘home territory’ agreement and of the ‘European cartel configuration’ cannot reasonably be called into question by the arguments put forward by the applicants in that regard.
In the first place, the ‘home territory’ agreement is described in recitals 76 to 86 of the contested decision, and is supported by evidence that the applicants do not specifically challenge. The existence of the agreement is moreover supported by the items of evidence set out in section 3 of that decision, entitled ‘Description of the events’, which, again, are not challenged by the applicants by way of specific evidence. In addition, in recitals 107 to 115 of that decision, the Commission summarises — and the applicants do not attempt to prove the contrary — the evidence of the existence of the ‘European cartel configuration’.
Moreover, in recital 493 of the contested decision, the Commission summarises all the evidence gathered during the investigation, including the evidence regarding the ‘home territory’ agreement and the ‘European cartel configuration’, which the applicants do not challenge with specific arguments, with the exception of those set out in recital 234 of that decision, without any support therefor. In particular, the following is apparent from the examination of the material cited in recital 493 of that decision:
–
first, the participants in the cartel implicitly or explicitly entered into an agreement or concerted practice through which the European ‘home territory’ was protected from competition by Japanese and South Korean power cable suppliers and vice versa (recital 493(a) of the contested decision);
–
second, the ‘R members’ of the cartel participated in the ‘European cartel configuration’, which allocated territories and customers within the EEA (recital 493(b) of the contested decision);
–
third, several participants, including the applicants, agreed on the prices to be offered for submarine and underground power cables, including for projects in the EEA (recital 493(d) of the contested decision);
–
fourth, several participants, including the applicants, were involved in the submission of cover bids in order to ensure the agreed allocation of submarine and underground power cable projects, including for projects in the EEA (recital 493(e) of the contested decision);
–
fifth, several participants, including the applicants, were involved in the exchange of sensitive and strategic commercial information, such as their available capacity or interest in participating in specific tenders, including for projects in the EEA (recital 493(f) of the contested decision);
–
sixth, certain participants, including the applicants, were involved in practices to reinforce the cartel, including a collective refusal to supply accessories or technical assistance to certain competitors (recital 493(g) of the contested decision);
–
seventh, several participants, including the applicants, monitored the implementation of the allocation and price agreements through the exchange of position sheets, market information and the establishment of reporting obligations, including for projects in the EEA (recital 493(h) of the contested decision).
Lastly, in addition to the Commission’s findings, relating, inter alia, to the ‘home territory’ agreement and the ‘European cartel configuration’, recital 493 of the contested decision also refers to all the evidence connected with the rule relating to the ‘export territories’ in which the applicants were also involved.
Consequently, the evidence gathered by the Commission, whose production was requested by the Court by way of measures of organisation and inquiry during the written procedure in this case (see paragraph 28 above), confirms the existence of the ‘home territory’ agreement and of the ‘European cartel configuration’, as well as the applicants’ participation in that cartel. The applicants have not adduced specific evidence capable of calling into question, as they claim, that there was a concurrence of wills to implement an agreement concerning the EEA.
In the second place, as the Commission observes, in their pleadings, the applicants do not call into question the evidence provided in the contested decision, but confine themselves to citing isolated excerpts from that decision, in particular from recitals 78, 501 and 626 thereof, in order to dispute the credibility of the findings as to the existence of the ‘home territory’ agreement. Moreover, that decision sets out extensive evidence corroborating the incriminating evidence communicated by the leniency applicants, the oral statements and the replies to the requests for information, in addition to the documents gathered during the inspections, which demonstrate its existence.
In particular, recital 626 of the contested decision refers to several other recitals of that decision which contain evidence of the existence of the ‘home territory’ agreement, namely recitals 306, 329, 353, 355, 357, 358, 380, 384, 386, 393, 428, and 437 thereof, which the applicants do not challenge in detail. In addition, recitals 80 to 86 of that decision mention that that agreement applied to European projects which were the subject of discussions between the European, Japanese and South Korean operators. Furthermore, as the Commission states, this evidence contradicts the excerpt from the oral statement of J-Power Systems cited by the applicants in order to substantiate their claim that the contacts which existed between the power cable producers relating to the ‘export territories’ were interrupted at the end of 2004. This evidence is similarly sufficient to contradict the explanation provided by the applicants that the meetings in which those producers decided to cooperate on the market concerned only projects outside the EEA.
In the third place, in recitals 502 to 509 of the contested decision, the Commission sets out the evidence aimed at showing that the ‘home territory’ agreement and the ‘European cartel configuration’ were implemented. The applicants cite fragments of that evidence, but fail, in particular, to dispute that guidance was given to Asian producers in order to ensure the implementation of that agreement. Moreover, as the Commission states, and as is apparent from the abovementioned recitals, the applicants also do not contest the evidence relating to the fact that the parties were aware of the illegal nature of their activities, and took a variety of organisational and technical precautions to prevent its discovery.
In the fourth place, regarding the applicants’ argument that the Commission should have analysed the cartel’s effects, it is sufficient to observe that the Commission is under no such obligation where infringements by object are involved, as in the case of the market sharing found by the contested decision (see judgment of 16 June 2015, FSL and Others v Commission,
T‑655/11
,
EU:T:2015:383
, paragraph
and the case-law cited). In any event, it should be pointed out that section 3.3 of the contested decision sets out the evidence, which is not specifically contested by the applicants, aimed at showing that the cartel was implemented, and presents inter alia examples, including in recitals 113 and 114 of that decision. Moreover, even though, as the applicants observe, certain projects allocated among the parties to the cartel, reported in particular in recitals 192, 234(a) and 151 of that decision, were not implemented, it is apparent from the case-law, cited in recital 645 of that decision, that the fact that an agreement having an anticompetitive object is implemented, even if only in part, is sufficient to preclude the possibility that the agreement had no effect on the market (judgment of 25 October 2005, Groupe Danone v Commission,
T‑38/02
,
EU:T:2005:367
, paragraph
). It should be added that, in any event, the alleged non-implementation of those projects is incapable of calling into question all of the other evidence cited by the Commission.
In the fifth place, the applicants essentially submit that, for technical, commercial and historical reasons, the Japanese and South Korean producers had no reason to compete for ‘European projects’. In their submission, those reasons constitute a plausible explanation for the evidence produced in the contested decision.
In that regard, it should be borne in mind that, in accordance with the case-law, an agreement which is designed to protect the European producers in the European Union territories from actual or potential competition from other foreign producers is capable of restricting competition, unless insurmountable barriers to entry to the European market exist which rule out any potential competition from those foreign producers (see, to that effect, judgment of 21 May 2014, Toshiba v Commission,
T‑519/09
, not published,
EU:T:2014:263
, paragraph
).
In the present case, the applicants cannot claim that the Japanese and South Korean producers were not at least potential competitors of the European producers in the EEA.
First, as is apparent from recital 658 of the contested decision, the participants regularly confirmed their adherence to the agreement and the ‘A members’ and ‘R members’ of the cartel informed one another of invitations to bid from each other’s ‘territories’. Second, in accordance with recital 663 of that decision, European customers regularly invited the Japanese and South Korean producers to make offers for their projects. Moreover, in recital 663, the Commission refers to recitals 231 and 279 of that decision, in which a number of items of evidence are mentioned, from which it is apparent that two Japanese producers were approached in connection with projects due to be carried out in the EEA, inter alia in Spain, Italy, the Netherlands and the United Kingdom. Third, the fact that, as is apparent from recitals 664 and 666 of that decision, different customers may have different technical requirements, as the applicants submit, applies to all potential suppliers, be they European, Japanese or South Korean. Fourth, as was stated in recital 666 of the decision in question, after the Commission’s investigation had begun, several Japanese and South Korean parties undertook steps to participate in projects to be carried out in the EEA. Fifth, according to recital 661 of that decision, in 2001 and 2005, a South Korean undertaking participated in projects to be carried out in the EEA consisting in sales of power cable systems, in particular in Ireland, the Netherlands and Germany. Such participation confirms that that undertaking was at least a potential competitor of the European producers in the EEA and that there were no insurmountable barriers to entry to the European market.
It follows that, contrary to what the applicants claim, the participation of Japanese and South Korean producers in the EEA was neither technically impossible nor economically unviable.
Consequently, the applicants have not succeeded in calling into question the Commission’s finding that they participated in an anticompetitive agreement which provided, in particular, for the ‘home territory’ agreement.
In the light of the foregoing, it must be held that the applicants have not shown that the Commission failed to establish an infringement of Article 101 TFEU to the requisite legal standard.
The sixth plea must therefore be rejected.
The seventh plea in law, alleging incorrect determination of the duration of the infringement
The applicants submit that the Commission failed to establish to the requisite legal standard the date on which the anticompetitive agreement commenced, in particular in relation to the period from 1999 to 2000, during which, according to the applicants, only a ‘pure negotiation phase’ was ongoing. They maintain, in particular, that there is no evidence that the infringement began at the meeting held on 18 February 1999 in Zurich (Switzerland) and that there is no evidence that an agreement was reached at the other meetings which Pirelli attended in 1999 and 2000.
As regards the meeting of 18 February 1999 in Zurich, the applicants point out that the only documentary evidence in the Commission’s file is an internal note taken by Mr Y., an employee of Sumitomo Electric Industries, which was submitted in the context of the joint application for immunity. Despite the fact that the author is not mentioned and the note was not shared with other persons present at the meeting, the Commission interpreted it as being the minutes of that meeting. According to the applicants, the note is of little probative value and is not corroborated by any of the oral statements made by J-Power Systems or by a larger body of evidence. The applicants also observe that the Commission itself stated, in recital 497 of the contested decision, that no agreement was reached at the meeting in question on the determination of the ‘home territories’ or on the allocation of quotas for projects outside those territories. Accordingly, the Commission cannot maintain that, from that date onwards, a cartel was in existence or that the participants had eliminated or substantially reduced uncertainty as to their conduct on the market. Lastly, according to the applicants, an analysis of the Commission’s decision-making practice demonstrates that the starting point of a cartel has never been based on such limited evidence.
Next, as regards the other items of evidence, the applicants argue, in essence, that the contested decision fails to demonstrate, at least for the period up to the end of 2000, the fact that the European and Japanese producers reached an agreement to implement the ‘A/R cartel configuration’ or to institute the ‘European configuration’ of that cartel. The evidence in question here is of meetings held on 24 May 1999 in Kuala Lumpur (Malaysia), on 3 and 4 June 1999 in Tokyo (Japan), on 26 July 1999 in London (United Kingdom), on 19 October 1999 in Kuala Lumpur, on 1 and 2 March 2000 in Tokyo, on 11 May 2000 in Paris (France), during July 2000 in Milan or London and on 29 November 2000 in Kuala Lumpur.
The Commission disputes those arguments.
As a preliminary point, it should be borne in mind that Article 101(1) TFEU prohibits agreements and concerted practices which have as their object or effect the prevention, restriction or distortion of competition within the internal market, in particular those which share markets or sources of supply.
In order for there to be an agreement within the meaning of Article 101(1) TFEU, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way. An agreement within the meaning of that provision can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation (see judgment of 16 June 2011, Solvay v Commission,
T‑186/06
,
EU:T:2011:276
, paragraphs
and
and the case-law cited). In that regard, the question whether the undertakings in question considered themselves bound — in law, in fact or morally — to adopt the agreed conduct is irrelevant (judgments of 14 May 1998, Mayr-Melnhof v Commission,
T‑347/94
,
EU:T:1998:101
, paragraph
, and of 8 July 2008, Lafarge v Commission,
T‑54/03
, not published,
EU:T:2008:255
, paragraph
and the case-law cited).
The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (see judgment of 16 June 2011, Solvay v Commission,
T‑186/06
,
EU:T:2011:276
, paragraph
and the case-law cited).
Article 101(1) TFEU thus precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which the operator concerned has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition. The disclosure of information to one’s competitors in preparation for an anticompetitive agreement suffices to prove the existence of a concerted practice within the meaning of that provision (see judgment of 16 June 2011, Solvay v Commission,
T‑186/06
,
EU:T:2011:276
, paragraphs
and
and the case-law cited).
The concepts of agreement and concerted practice within the meaning of Article 101(1) TFEU are intended, from a subjective point of view, to catch forms of collusion having the same nature which are distinguishable from each other only by their intensity and the forms in which they manifest themselves. It is therefore sufficient that proof of the constituent elements of either of those forms of infringement referred to in that provision has been established in order in any event for Article 101(1) TFEU to apply (judgment of 5 December 2013, Solvay v Commission,
C‑455/11 P
, not published,
EU:C:2013:796
, paragraph
).
Furthermore, it is clear from the case-law that it is incumbent on the Commission to prove not only the existence of the agreement but also its duration (judgment of 14 July 2005, ThyssenKrupp v Commission,
C‑65/02 P and C‑73/02 P
,
EU:C:2005:454
, paragraph
).
Although the Commission is required to produce precise and consistent evidence to establish that there has been an infringement of Article 101(1) TFEU, it is not necessary for every item of evidence that it produces to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the set of indicia relied on by the Commission, viewed as a whole, meets that requirement. Thus, the items of evidence on which the Commission relies in the contested decision in order to prove the existence of an infringement of that provision by an undertaking must not be assessed separately, but as a whole (see judgment of 12 December 2014, Repsol Lubricantes y Especialidades and Others v Commission,
T‑562/08
, not published,
EU:T:2014:1078
, paragraphs
and
and the case-law cited).
In most cases, the existence of an anticompetitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (judgment of 17 September 2015, Total Marketing Services v Commission,
C‑634/13 P
,
EU:C:2015:614
, paragraph
).
In the present case, the Commission found, inter alia in recitals 138 and 506 of the contested decision, that the cartel had begun on 18 February 1999, at the time when the representatives of four Japanese power cable suppliers, namely Furukawa Electric, Fujikura, Sumitomo Electric Industries and Hitachi Cable, and the representatives of two European power cable suppliers, including Pirelli, met in a hotel in Zurich. Even though the applicants did not participate in that meeting, it is apparent from the examination of the fourth plea that they are liable for participation in that meeting as successors of Pirelli.
The Commission bases the finding set out in paragraph 199 above on several facts which may be summarised as follows.
First, the Commission stated that the cartel originated in two export schemes deriving from the STEA and the SMEA, which were concluded by the main European suppliers of power cables in the 1970s within the framework of the International Cable Development Corporation. According to recital 64 of that decision, the STEA and the SMEA provided the initial framework for submission and allocation of markets and projects concerning high voltage underground and submarine power cables outside the ‘home territories’ of the companies which concluded those agreements. The Commission states in that recital, without contradiction on the part of the applicants, that the investigation had revealed that, aside from those agreements, there existed an unwritten understanding between European, Japanese and South Korean producers by which each of the three groups of producers agreed not to compete in their respective ‘home territories’. In other regions, the objective of the producers was to divide projects among themselves, with the European producers achieving a share of approximately 60% of the projects and the Japanese producers a share of approximately 40% of the projects. Each group was assigned a president and a secretary (or coordinator) in order to organise the allocation. The parties to the agreements and the unwritten understanding in question, who received inquiries from customers concerning potential underground and submarine power cable projects, were required to report those inquiries to the Japanese or European secretary if the type and length of the power cables met certain criteria. The secretaries or coordinators would then discuss and agree to which group of producers the project would be allocated.
The parties do not dispute that the cartel in question reproduces the arrangements described in the previous paragraph.
Next, according to recital 117 of the contested decision, the STEA and the SMEA, as well as the accompanying unwritten understanding, were dissolved at the end of 1997. The Commission has provided evidence, not challenged by way of specific evidence submitted by the applicants, which shows, first, that the companies which concluded those agreements were aware of their unlawful nature and, second, that they had planned to reorganise those agreements in the future. It also provided evidence, in recitals 119 and 121 to 136 of the contested decision and in points 3 to 15 of Annex I to that decision, confirming that those companies had continued to meet and discuss the consequences of the dissolution of those agreements and the possibility of concluding a new agreement. In that regard, the applicants do not deny that they participated in 11 meetings with the other Japanese suppliers held in 1998 and in one meeting held in October 1998 in Kuala Lumpur, in which, among others, Pirelli, Sumitomo Electric Industries, Hitachi Cable, Furukawa Electric, Fujikura and another European company participated.
During the meetings mentioned in paragraph 203 above, a discussion took place, as reported by the Commission in recital 129 of the contested decision and not disputed by the applicant, concerning a power cable project to be carried out in Singapore, allocated initially to the European undertakings before the end of the STEA and the SMEA, and for which Furukawa Electric was criticised for submitting a tender with a low price. In the context of that criticism, it was also noted that that similar conduct might derail the ‘future scheme under discussion between [the Japanese and European producers]’.
Furthermore, the Commission noted a series of six regular meetings held in 1999 between the representatives, inter alia, of Pirelli, Fujikura, Furukawa Electric, Hitachi Cable and Sumitomo Electric Industries. Those meetings were followed by other meetings of the Japanese and European suppliers and by several bilateral meetings held in 2000. It is apparent from the contemporaneous notes from those meetings, referred to by the Commission, inter alia in recitals 137, 141, 143, 144 and 154 of the contested decision, that they included anticompetitive content, since they concerned the establishment and functioning of a market-sharing agreement reproducing the structure of the STEA and the SMEA. The participants in those meetings discussed the rules for sharing markets, the definition of the respective ‘home territories’, quotas for sharing projects located in the ‘export territories’, the voltage of the electric cables covered by the agreement, the appointment of the regional coordinators and the new undertakings to be involved in the discussions to ensure the most effective operation of the new agreement.
Lastly, the Commission noted, in recital 145 of the contested decision, that, in their joint application for immunity, J-Power Systems, Sumitomo Electric Industries and Hitachi Cable confirmed that, during the early period of the cartel, at least Sumitomo Electric Industries and Hitachi Cable complied with the ‘home territory’ agreement by ensuring that certain projects located in the European ‘home territory’ were not be offered to them but rather to European companies.
It is in that context that, according to the contested decision, the meeting of 18 February 1999 took place in Zurich, during which Mr Y., an employee of Sumitomo Electric Industries, took the notes reproduced by the Commission in recital 137 of that decision. It follows from those notes, which unambiguously set out the date and place of that meeting, and whose contemporaneous nature cannot therefore be called into question by the applicants, that that meeting concerned conditions governing the cartel relating to submarine power cable projects, namely the quotas to be allocated to the European and Japanese groups, the allocation of the ‘home territories’ in accordance with the location of the undertakings’ production facilities and the monitoring and surveillance of the quotas in the ‘export territories’ using position sheets. The participants also discussed the integration of ABB and the Japanese undertakings, SWCC Showa Holdings and Mitsubishi Cable Industries, in the agreement, addressed the matter of the fine imposed on ABB for involvement in the pre-insulated pipes cartel and showed that they were clearly aware of certain risks in that regard.
As regards the meeting of 18 February 1999 in Zurich, in recital 497 of the contested decision the Commission indicated that some of the issues discussed at that meeting did not result in an agreement. It is apparent from the transcript of the oral statement made by J-Power System and from the written note concerning that meeting that the parties did not agree the quota to be applied (a ‘60/40’ or a ‘70/30 split’) for the ‘export territories’ and did not definitively decide whether the ‘home territories’ should cover Sweden (ABB’s factory base), South Korea and Taiwan. However, the Commission considered that that meeting marked the start of the infringement. In that regard, in recital 506 of that decision, the Commission noted the following:
‘In view of … the conduct before the meeting of 18 February 1999, when parties were undeniably planning a resurrection of their former arrangements and … the conduct thereafter when parties openly allocated projects in the export territories, respected their respective home territories and considered whether to invite others to “the scheme”, the meeting on 18 February 1999 evidences the existence of a common intention at that time to allocate markets and customers and to distort the normal competitive process for both [submarine] and [underground] power cable projects. From this date, at the very least, there was a concurrence of wills on the very principle of a restriction of competition amongst the participants. The parties therefore concluded an agreement or applied a concerted practice within the meaning of Article 101(1) [TFEU] even if some of the specific details of the cartel arrangement were still under discussion at that time.’
The Court considers that, having regard to the case-law referred to in paragraphs 192 to 198 above, the Commission’s finding relating to the scope of the meeting of 18 February 1999 in Zurich, set out in recital 506 of the contested decision, is devoid of any error of law or assessment.
In the first place, the Commission has established, to the requisite legal standard and correctly taking into account the context of the end of the STEA and the SMEA, in which Pirelli participated, that, as from 1998, the parties to those agreements, namely the principal European and Japanese suppliers of underground and submarine power cables, resumed negotiations seeking to establish a new agreement and that, over time, they succeeded in implementing that new agreement. The written note from the meeting of 18 February 1999 in Zurich, which is the first note giving a complete account of the basis of that new agreement, confirms that, at the time when that note was taken, the undertakings present at that meeting agreed on the very principle of sharing markets, concerning both the ‘export territories’ and the ‘home territories’. The existence of that principle, and the fact that the companies which concluded the STEA and SMEA upheld it, is corroborated by the discussion involving the applicants reproduced in paragraph 204 above.
In that regard it must be noted, on the one hand, that there is nothing to prevent the Commission from taking account of the steps preparatory to the setting-up of the cartel
stricto sensu
, in order to establish the economic situation which preceded it and explained the setting-up of the cartel, or in order to establish and evaluate the respective roles played by the members of the cartel in conceiving, setting up and implementing it (judgment of 27 June 2012, Coats Holdings v Commission,
T‑439/07
,
EU:T:2012:320
, paragraph
).
On the other hand, it must be pointed out, as the Commission rightly maintained, in recital 498 of the contested decision, that the decisive question in assessing the scope of the meeting of 18 February 1999 in Zurich is not whether, on that date, the six companies which took part in that meeting definitively agreed on all elements of the agreement but whether the discussions which took place at that meeting allowed those six companies, through their participation, to eliminate or, at least, substantially reduce, uncertainty as to the conduct to be expected from them on the market (see, to that effect, judgment of 8 July 2008, BPB v Commission,
T‑53/03
,
EU:T:2008:254
, paragraph
and the case-law cited).
Accordingly, neither the use of the conditional tense and the future tense in the notes taken by Mr Y., nor the fact that he declared that no agreement had been concluded even after the meeting held in October 1999 in Kuala Lumpur, is sufficient to consider that, on 18 February 1999, the companies which participated in the Zurich meeting had not yet infringed Article 101(1) TFEU. In addition, although the applicants call into question the probative value of Mr Y.’s notes on the basis that they constituted a document internal to J-Power Systems, which, in their view, is uncorroborated by other notes of the other participants in the meeting, it should be borne in mind that, in accordance with the case-law, the internal nature of a document cannot prevent the Commission from relying on it as inculpatory evidence corroborating other evidence, above all in the context of more wide-ranging consistent evidence (see, to that effect, judgment of 8 July 2004, JFE Engineering v Commission,
T‑67/00, T‑68/00, T‑71/00 and T‑78/00
,
EU:T:2004:221
, paragraph
). Moreover, in reaching its conclusion, the Commission did not rely exclusively on Mr Y.’s notes, but also, as is apparent from paragraphs 201 to 206 above, on the general context based on other evidence relating in particular to the parties’ conduct before and after the meeting of 18 February 1999. Lastly, contrary to what the applicants claim, the probative value of the notes in question is not weakened by the fact that they were interpreted several years later by their author on the basis of ‘distant recollections’. In that regard, it is sufficient to point out, as the Commission observes, that such a temporally remote interpretation is incapable of undermining the probative value of those notes as contemporaneous documentary evidence.
In the second place, contrary to what the applicants maintain, the various contextual items of evidence of the meeting of 18 February 1999 in Zurich, including the discussions which took place subsequently between the undertakings concerned, confirm that, during the initial period of the cartel, the main European and Japanese suppliers of underground and submarine power cables, including Pirelli, were linked by a common intention to share markets in accordance with the STEA and the SMEA schemes and that, moreover, they implemented that market sharing. That concerns, inter alia, the projects mentioned in recital 145 of the contested decision which were allocated to the European undertakings in accordance with the ‘home territory’ agreement.
It is apparent from the findings set out above that the Commission was entitled to consider that, on 18 February 1999, the principal Japanese and European suppliers of high and extra high voltage submarine and underground power cables, including the applicants, shared a common intention to restrict competition by sharing markets. Therefore, the Commission did not err in finding that the infringement of Article 101(1) TFEU alleged against the applicants had started on that date.
As regards the applicants’ arguments that the anticompetitive nature of the meetings which took place during 2000 was insufficiently substantiated, it must be stated that, since the Commission did not err in taking the view that the start of the infringement commenced by the meeting of 18 February 1999 in Zurich, those arguments are ineffective.
The seventh plea must therefore be rejected.
The eighth plea in law, alleging infringement of Article 23(2) of Regulation No 1/2003, the 2006 Guidelines on the method of setting fines and breach of the principles of equal treatment and proportionality in the calculation of the fines imposed
By their eighth plea, the applicants maintain, first, that the assessment of the gravity of the infringement and the determination of the entry fee were disproportionate. Secondly, they argue that, by applying a higher proportion of the value of sales to the European undertakings than it applied to the Japanese undertakings, the Commission breached the principle of equal treatment.
Before examining the two limbs of this plea, it should be recalled that, pursuant to Article 23(2) and (3) of Regulation No 1/2003, the Commission may by decision impose on undertakings which have either intentionally or negligently infringed Article 101(1) TFEU fines the amount of which is determined by reference to both the gravity and the duration of the infringement.
In accordance with points 19 to 22 of the 2006 Guidelines on the method of setting fines, one of the two factors on which the basic amount of the fine is based is the proportion of the value of the sales concerned, which depends on the gravity of the infringement. The assessment of the gravity of the infringement is made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case. In order to decide on the proportion of the value of sales in a given case, the Commission has regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether the infringement has been implemented.
The Commission has a margin of discretion when fixing fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules (see judgments of 12 December 2012, Novácke chemické závody v Commission,
T‑352/09
,
EU:T:2012:673
, paragraph
and the case-law cited, and of 14 March 2013, Dole Food and Dole Germany v Commission,
T‑588/08
,
EU:T:2013:130
, paragraph
and the case-law cited). However, when the Courts review the amount of the fine, they cannot use that margin of discretion — either as regards the choice of factors taken into account in the application of the criteria mentioned in the 2006 Guidelines on the method of setting fines or as regards the assessment of those factors — as a basis for dispensing with the conduct of an in-depth review of the amount of the fine in terms of the law and of the facts (judgment of 8 December 2011, KME Germany and Others v Commission,
C‑272/09 P
,
EU:C:2011:810
, paragraph
). Similarly, each time the Commission decides to impose fines pursuant to competition law, it must observe general principles of law, which include the principle of equal treatment as interpreted by the EU judicature (judgment of 12 December 2012, Novácke chemické závody v Commission,
T‑352/09
,
EU:T:2012:673
, paragraph
).
In the contested decision, in particular in recitals 997 to 1010 thereof, the Commission considered that, as regards the basic amount of the fine and the determination of the gravity, the infringement, by its very nature, was among the most harmful restrictions of competition, which, in its view, justified a gravity percentage of 15%. The Commission also increased the gravity percentage by 2% for all addressees on account of their combined market share and the almost worldwide reach of the cartel, which included, inter alia, all of the territory of the EEA. In addition, it considered that the conduct of the European undertakings, including the applicants, had been more detrimental to competition than that of the other undertakings, inasmuch as, in addition to their participation in the ‘A/R cartel configuration’, the European undertakings had allocated power cable projects among themselves in the context of the ‘European configuration’ of that cartel. For that reason, the Commission set the proportion of the value of sales to reflect the gravity of the infringement at 19% for the European undertakings and at 17% for the other undertakings.
It is in the light of those considerations that the two limbs put forward by the applicants must be examined.
–
The first limb, alleging infringement of the principle of proportionality
The applicants essentially criticise the Commission for failing to take sufficient account of the context of the infringement at the stage of setting the fine. In particular, they submit, first, that the basic amount of the fine should have been adjusted in light of the limited scope of the infringement, or indeed the absence of any actual effects in the EEA. Next, they maintain that the infringement did not affect the majority of the power cable sales referred to in the statement of objections and that the anticompetitive agreement complained of could not have had any effect on final customers, in particular, on the prices which they were charged. They also consider that the Commission should have taken account of the progressive phasing out of the coordination from 2004 onwards. Lastly, they argue that factual circumstances external to the cartel, such as the cost of raw materials, diminished its impact.
The Commission disputes those arguments.
In the first place, with respect to the applicants’ argument that the scope of the infringement was limited, it should be pointed out that, to the extent that the argument is based on the absence of evidence of the existence of the ‘home territory’ agreement, it must be rejected. As is apparent from the conclusion in paragraph 184 above, the applicants have not succeeded in calling into question the Commission’s finding that they participated in an anticompetitive agreement which provided, in particular, for the ‘home territory’ agreement. Accordingly, the scope of the cartel was not limited in the manner claimed by the applicants.
In addition, as the Commission states in recital 1001 of the contested decision, a rate of 15% was justified in the present case by reason of the very nature of the infringement in which the applicants participated, namely the allocation of markets in relation to underground power cables. Such an infringement is among the most harmful restrictions of competition for the purpose of point 23 of the 2006 Guidelines on the method of setting fines, and 15% is the lowest rate on the scale of penalties prescribed for such infringements under those guidelines (see, to that effect, judgment of 26 January 2017, Laufen Austria v Commission,
C‑637/13 P
,
EU:C:2017:51
, paragraph
and the case-law cited).
In the second place, as regards the argument that the cartel had no effect on the market, it should be borne in mind that, since the infringement is an infringement by object, in accordance with settled case-law, the Commission was not required to demonstrate its effects (see judgment of 13 December 2012, Expedia,
C‑226/11
,
EU:C:2012:795
, paragraph
and the case-law cited). Moreover, as was noted in paragraph 178 above, it is clear from the case-law that the fact that an agreement having an anticompetitive object is implemented, even if only in part, is sufficient to preclude the possibility that the agreement had no effect on the market (judgment of 25 October 2005, Groupe Danone v Commission,
T‑38/02
,
EU:T:2005:367
, paragraph
).
In their reply, the applicants nevertheless submit that an anticompetitive agreement which has not been implemented in full and which in any event has no effect on the prices paid by customers has to be regarded as less serious than one that is fully implemented and causes harm to customers by increasing prices.
In that regard, it must be stated that most of the applicants’ arguments relate to the criterion of the actual impact on the market, in particular on prices paid by final customers, which, where this could be measured, could be taken into account by the Commission when setting fines, according to Section 1 A of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (
OJ 1998 C 9, p. 3
). According to the very wording of point 22 of the 2006 Guidelines on the method of setting fines, which are applicable to facts of the present case, the Commission does not necessarily have to take account of the actual impact on the market, or the absence thereof, as an aggravating or mitigating factor for the assessment of the gravity of the infringement for the purpose of calculating the fine. It is sufficient that, as is apparent from paragraph 222 above, in this case the proportion of the value of sales to be taken into consideration is justified by other factors capable of influencing the determination of gravity pursuant to that provision, such as the actual nature of the infringement, the combined market share of all the parties concerned and its geographic scope. Accordingly, to the extent that, by their arguments, the applicants seek to show that, for reasons beyond the control of the cartel members, the cartel was unable to produce its effects or achieve the expected results, those arguments must be rejected.
To the extent that the applicants’ line of argument must be regarded as meaning that they take the view that the Commission has failed to show that the infringement was implemented, it must also fail.
The Commission’s finding, in recital 1009 of the contested decision, that, in general, the cartel was implemented and the parties’ adherence to the cartel was monitored through the exchange of position sheets and reporting obligations is not vitiated by any error, as stated in paragraph 178 above. In addition, it is apparent from all the observations aimed at demonstrating the existence of the infringement, which are set out in particular in sections 3.3 and 3.4 of the contested decision, and which are not contested in detail by the applicants in the context of this limb, that, after an initial period during which the rules of a new territory-sharing agreement were drawn up between the undertakings manufacturing submarine and underground power cables, those undertakings generally, and for most of the period concerned, followed the guidelines arising from the agreement which relate to the reciprocal withdrawal from the ‘home territories’, to the sharing of the ‘export territories’ and to the allocation of projects in the context of the ‘European cartel configuration’.
In the third place, the applicants essentially claim that the Commission ought to have taken account of the significant loosening of the cartel from 2004 onwards when determining the degree of gravity. In that regard, it is sufficient to note the single and continuous nature of the infringement found by the Commission, which is not specifically challenged by the applicants, and the fact that the evidence gathered by the Commission does not refer to any interruption of the cartel during the period up to 2009.
In the fourth place, the applicants observe that it is apparent from recitals 998 to 1010 of the contested decision that the Commission increased the proportion of the value of sales by 2% for all the undertakings (i) on account of the size of the combined market share of all the undertakings and (ii) on account of the geographic scope of the infringement. They claim that inasmuch as that increase is based on the size of the combined market share it is not well founded, given that a number of participants changed during the infringement and that, in particular, certain undertakings joined the infringement well after 18 February 1999 and ceased participation before the final date of 28 January 2009.
In that regard, it should be pointed out that, although, as the applicants submit, not all the undertakings involved in the cartel participated in it during the entire period, the fact remains that, during most of its existence, the cartel brought together the main European, Japanese and South Korean producers of high and extra high voltage submarine and underground power cables. In addition, over a considerable period, from the end of 2001 until 2006, the cartel was reinforced by the participation of smaller European suppliers such as Brugg Kabel, nkt cables, Safran and Silec Cable and, from the end of 2002 until mid-2005, by the participation of the South Korean suppliers. Moreover, as the Commission observes, without being challenged by the applicants, the number of operators on the relevant market which are not addressees of the contested decision is very small. Accordingly, it must be held, following an in-depth review, that the Commission was entitled to find, without erring, that the addressees of the decision made up almost the entirety of the high and extra high voltage submarine and underground power cable producers. It was also entitled to take the view that that factor, as well as the almost worldwide reach of the cartel — which is not disputed by the applicants — increased the gravity of the infringement and consequently increased the proportion of the value of sales by 2%, in order to take account of those two factors.
In the fifth place, the applicants submit that the Commission should have excluded the cost of raw materials when determining the gravity. In essence, they observe that, in order to find a better benchmark of the economic advantage derived by each participant in the infringement and, therefore, the relative weight of each undertaking in the cartel, the 2006 Guidelines on the method of setting fines introduced the concept of ‘value of sales’ in relation to the types of conduct at issue. They submit that it is therefore necessary to ensure that the value taken into consideration faithfully reflects the benefits that the participants in the cartel have derived from it, particularly in terms of profits.
In that regard, it is sufficient to observe that, as the Commission stated in recital 976 of the contested decision, the Court rejected a similar argument put forward in the context of the case which gave rise to the judgment of 14 May 2014, Reagens v Commission (
T‑30/10
, not published,
EU:T:2014:253
, paragraph
). It is apparent from that judgment and the case-law cited that there is no valid reason to require that the turnover in a relevant market should exclude certain production costs, since in all industries there are costs inherent in the final product which the manufacturer cannot control but which nevertheless constitute an essential element of its business as a whole and which, therefore, cannot be excluded from its turnover when setting the basic amount of the fine.
Moreover, as the Court held in the judgment of 8 December 2011, KME Germany and Others v Commission (
C‑272/09 P
,
EU:C:2011:810
, paragraph
), not taking gross turnover into account in some cases but doing so in others would require a threshold to be established in the form of a ratio between net and gross turnover, which would be difficult to apply and would give scope for endless and insoluble disputes, including allegations of unequal treatment. None of the arguments advanced by the applicants against that consideration, including the fact that the 2006 Guidelines on the method of setting fines take into account the ‘value of sales’ of the undertakings concerned rather than turnover, as the 1998 Guidelines on the method of setting fines do, can justify the adoption of a different legal criterion in the present case.
In the light of the foregoing, it must be held that the Commission did not infringe the principle of proportionality when determining the basic amount of the fine in the manner claimed by the applicants.
The first limb of this plea must therefore be rejected.
–
The second limb, alleging breach of the principle of equal treatment
The applicants argue that the Commission’s different treatment of the European undertakings and the Japanese undertakings in so far as concerns the proportion of the value of sales which it took into account to reflect the gravity of the infringement is contrary to the principle of equal treatment.
The applicants point out that the proportion of the value of sales which the Commission applied to the European undertakings was 2% greater than that which it applied to the other undertakings. In order to justify that different treatment, the Commission stated, in recital 999 of the contested decision, that, in addition to the allocation mechanisms of the ‘A/R cartel configuration’, ‘EEA projects were subject to further allocation among the European producers through [that] European cartel configuration’. The applicants state that, according to the Commission, ‘this part of the cartel, which was carried out exclusively by the European producers, increased the harm to competition already caused by the market-sharing agreement between the European, Japanese and [South] Korean producers, and therefore the gravity of the infringement’ and that ‘the further distortion caused by the European cartel configuration justifies an increase in the gravity percentage of 2% for those undertakings that participated in that aspect of the cartel’.
The applicants take issue with that different treatment, maintaining that the ‘European cartel configuration’ was not implemented exclusively by the European undertakings. They allege that it is clear from the contested decision that the Japanese and South Korean undertakings participated in the cartel to the same degree as the European undertakings. Moreover, they submit that the Commission failed to demonstrate in what way that configuration had ‘increased the harm to competition already caused’, or what the ‘further distortion’ consisted of.
The Commission contests those arguments
It should be recalled that, according to settled case-law, each time the Commission decides to impose fines pursuant to competition law, it must observe general principles of EU law, which include the principle of equal treatment as interpreted by the EU judicature. That principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgments of 27 June 2012, Bolloré v Commission,
T‑372/10
,
EU:T:2012:325
, paragraph
and the case-law cited, and of 19 January 2016, Mitsubishi Electric v Commission,
T‑409/12
,
EU:T:2016:17
, paragraph
and the case-law cited).
As regards the assessment of the gravity of the conduct of the European undertakings in comparison with the conduct of the Asian undertakings, in particular, the Japanese undertakings, the Commission classified the infringement in question as a single and continuous infringement composed of two configurations, namely the ‘A/R cartel configuration’ and the ‘European configuration’ of that cartel. The first configuration included (i) a ‘home territory’ agreement pursuant to which the Japanese and South Korean undertakings committed to leave the European ‘home territory’, reserved to the ‘R members’ of the cartel, in exchange for a reciprocal commitment by the ‘R members’ to leave the Japanese and South Korean ‘home territory’ and (ii) a sharing of the projects located in most of the rest of the world, called the ‘export territories’. The second of those configurations, as is apparent from paragraph 12 above, was aimed at sharing among the European undertakings the projects located in the European ‘home territory’ and the projects allocated from the European side in the ‘export territories’.
The Commission’s reasons for finding that the two cartel configurations formed part of a single infringement are set out in recitals 527 to 619 of the contested decision. In that context, as regards the existence of a single objective connecting those configurations, the Commission found as follows in recital 534 of that decision:
‘The European cartel configuration (as well as the allocation among the Asia companies) was subordinate to the almost global arrangement and gave effect to it. Indeed, at the European R meetings, the European coordinator would relay the discussions that took place at the A/R meeting … To this end, the parties would often organise R meetings shortly after an A/R meeting … Moreover, at the R meetings, the parties expressed their interest in projects in the export territories that were to be discussed in the A/R meetings. Equally, the parties to the A/R meetings were also informed of the main discussions in [that configuration]. [That configuration] formed therefore an integral part of the overall plan.’
The Commission held most of the Japanese and South Korean undertakings liable for participation in the entire cartel, including in its ‘European configuration’. In particular, it held the Japanese undertakings placed in the core group of the cartel, that is to say Sumitomo Electric Industries, Hitachi Cable and their joint venture J-Power Systems, and Furukawa Electric, Fujikura and their joint venture Viscas, liable for the entirety of that cartel.
However, in recital 537 of the contested decision, the Commission qualified the various undertakings’ level of participation in the cartel. It found as follows:
‘The core group of undertakings (Nexans, Pirelli/Prysmian, Furukawa [Electric], Fujikura and Viscas, [Sumitomo Electric Industries], [Hitachi Cable] and [J-Power Systems]) was the same for both [submarine and underground] power cables, and applied both the home territory principle and the arrangement for the allocation of projects in the export territories. While for obvious reasons the Japanese and [South Korean] companies were not involved in the European cartel configuration, Nexans and Pirelli/Prysmian were active in both.’
It was on the basis of this finding that the Commission concluded, in recital 999 of the contested decision to which the applicants refer, that the infringement committed by the European undertakings should be considered more serious than that committed by the Japanese undertakings and that therefore, on account of their involvement in the ‘European cartel configuration’, the proportion of the value of sales of the European undertakings used to calculate the basic amount of the fine should be increased by 2%.
In that regard, it must be held that, even if the applicants’ claim that the Japanese undertakings’ participation in the ‘European cartel configuration’ was similar to that of the European undertakings were proved, that is incapable of calling into question the Commission’s finding that the sharing of projects within the EEA constituted an additional factor which warranted punishment by an additional percentage to reflect the gravity of the infringement.
It should be pointed out that, in addition to the ‘A/R cartel configuration’, within which the European and Asian undertakings agreed in particular not to enter into their respective ‘home territories’, the European producers, including the applicants, shared among themselves the various power cable projects allocated to the ‘R members’ of the cartel. In particular, as is apparent from recital 73 of the contested decision, this concerned both the allocation of the projects in the ‘export territories’, effected in the context of that configuration and the allocation of the projects to those members in accordance with the ‘home territory’ agreement, that is to say the projects located in the European ‘home territory’. Moreover, even though the sharing of the projects within that configuration and the sharing of the projects within the ‘European cartel configuration’ were closely linked, as the Commission explains in recital 534 of that decision, the ‘European cartel configuration’ implied a further commitment to allocating projects, which went beyond the existing allocation rules in the ‘A/R cartel configuration’.
Furthermore, contrary to the applicants’ submission, there is no doubt that sharing high voltage submarine and underground power cable projects within the ‘European cartel configuration’ increased the harm to competition caused in the EEA by the ‘A/R configuration of that cartel’.
It was therefore justified, as the Commission contends, that the assessment of the gravity of the conduct of producers participating in the ‘European cartel configuration’, in particular the European producers, should reflect the additional harm to competition within the EEA.
It follows that the applicants’ argument that the Commission made an error of assessment in taking the view that the Japanese undertakings had not participated to the same extent as the European undertakings in the ‘European cartel configuration’ is irrelevant to whether the applicants were the subject of a breach of the principle of equal treatment.
If well founded, that argument would justify an increase of the percentage of the value of sales which was used to calculate the fine imposed on the Japanese undertakings.
However, that matter is irrelevant to the percentage of the value of sales applied to the applicants in order to take account of the gravity of their conduct, since the principle of equal treatment does not found an entitlement to the non-discriminatory application of unlawful treatment (judgment of 11 September 2002, Pfizer Animal Health v Council,
T‑13/99
,
EU:T:2002:209
, paragraph
).
It follows from the foregoing that the second limb of this plea must be rejected, as must the eighth plea as a whole.
The ninth plea in law, alleging that the Commission erred by including Mr R. in the list of persons concerned by the contested decision
The applicants state that, in Annex II to the contested decision, entitled ‘Names and employment record of individuals relevant for this decision’, the Commission wrongly entered the name of Mr R., a member of Prysmian’s board of directors and the Chief Strategy Officer of the Prysmian group. They maintain, in particular, that any mention of Mr R. as an individual connected in any way whatsoever with the infringement is incorrect and groundless, and should therefore be removed from the annexes to that decision.
The Commission contests those arguments.
In that regard, it is sufficient to note that, in recital 759 of the contested decision, the Commission stated that Mr R. was one of the members of Prysmian’s board of directors, having been appointed by Goldman Sachs. Moreover, in Annexes I and II to the contested decision, Mr R.’s name appears as a person relevant to that decision.
Contrary to what the applicants claim, it does not appear from any of the recitals of the contested decision or from the annexes to that decision that the Commission attributed participation in the cartel to Mr R. personally. The Commission did not state in the contested decision that Mr R. had been personally involved in the cartel, but mentioned him only in his capacity as an employee of one of the applicants. Accordingly, it must be held that the Commission did not err in including, in particular in Annex II to that decision, Mr R.’s name.
Moreover, according to the case-law, as a rule, the purpose of the Commission’s investigations and decisions is not to establish that certain natural persons participated in a cartel, in breach of Article 101(1) TFEU, but to establish that undertakings did so. In the contested decision, the Commission established that the applicants, inter alia, infringed that provision by participating in a single and continuous infringement and in concerted practices in the power cable sector. Mr R. is not referred to in Article 1 of the contested decision as one of the participants in the cartel (see, by analogy, judgment of 2 February 2012, EI du Pont de Nemours and Others v Commission,
T‑76/08
, not published,
EU:T:2012:46
, paragraph
).
It follows that, in so far as it seeks to challenge the Commission’s finding relating to Mr R.’s participation in the cartel, this plea must be rejected.
The ninth plea must therefore be rejected.
In the light of the foregoing, it must be held that the applicants have not succeeded in proving that the Commission committed irregularities justifying annulment of the contested decision in so far as it concerns them.
The applicants’ claims for annulment must therefore be rejected.
The claims for a reduction of the amount of the fines imposed on the applicants
The applicants ask the Court to reduce the amount of the fines imposed on them so as to take account of the errors which the Commission made when calculating those amounts. The applicants request the Court to ‘[apply] an equitable reduction to the fine’ on the ground of the excessive length of the administrative procedure.
Before considering the applicants’ various claims for a reduction of the amount of the fines imposed on them, it should be borne in mind that the review of legality is supplemented by the unlimited jurisdiction which Article 31 of Regulation No 1/2003 has conferred on the Courts of the European Union, in accordance with Article 261 TFEU. That jurisdiction empowers the competent Court, in addition to carrying out a mere review of legality with regard to the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed. However, the exercise of unlimited jurisdiction does not amount to a review of the Court’s own motion, and proceedings before the Courts of the European Union are
inter partes
. With the exception of pleas involving matters of public policy which the Courts are required to raise of their own motion, such as a failure to state reasons for a contested decision, it is for the applicant to raise pleas in law against a decision and to adduce evidence in support thereof (judgment of 8 December 2011, KME Germany and Others v Commission,
C‑389/10 P
,
EU:C:2011:816
, paragraphs
and
).
The claim for reduction of the amount of the fines imposed on account of errors by the Commission when calculating that amount
As regards, in the first place, the applicants’ claim that the amount of the fines imposed on them should be reduced so as to take account of the errors which the Commission made when calculating that amount, it should be pointed out (i) that the pleas raised by the applicants in support of the claims for annulment have been rejected and (ii) that there are no factors which, in the present case, would justify a reduction of those amounts. It follows that this claim must be rejected.
The claim for reduction of the amount of the fines imposed on account of the excessive duration of the administrative procedure
As regards, in the second place, the applicants’ claim that an equitable reduction of the amount of the fines imposed on them should be granted on account of the excessive duration of the administrative procedure, it is sufficient to recall that, although an infringement by the Commission of the reasonable-time principle can justify the annulment of a decision taken by it following an administrative procedure based on Article 101 or 102 TFEU inasmuch as it also entails an infringement of the rights of defence of the undertaking concerned, such an infringement of that principle, if established, cannot lead to a reduction of the fine imposed (see judgment of 26 January 2017, Villeroy & Boch v Commission,
C‑644/13 P
,
EU:C:2017:59
, paragraph
and the case-law cited). In any event, as is apparent from paragraph 93 above, it could not be established that the duration of the administrative procedure was excessive in the present case. It follows that this claim cannot succeed and, therefore, that the claim for reduction of the fines imposed on the applicants must be rejected in its entirety.
Costs
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Since the applicants have been unsuccessful in all their pleas and the Commission has applied for costs, the applicants must be ordered to pay all the costs.
According to Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in Article 138(1) and (2) of those rules to bear his own costs. In the circumstances of this dispute, it is appropriate that Goldman Sachs and Pirelli bear their own costs.

On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:

1.
Dismisses the action;

2.
Orders Prysmian SpA and Prysmian Cavi e Sistemi Srl to bear their own costs and to pay those of the European Commission;

3.
Orders The Goldman Sachs Group, Inc. and Pirelli & C. SpA to bear their own costs.

Collins
Kancheva
Barents
Delivered in open court in Luxembourg on 12 July 2018.
E. Coulon
Registrar
A.M. Collins
President
Table of contents

Background to the dispute

The applicants and sector concerned

Administrative procedure

Contested decision

The infringement at issue

The applicants’ liability

The fines imposed

Procedure and forms of order sought

Law

The claims for annulment

The first plea in law, alleging that the Commission’s inspections were illegal

– The conduct of the inspection

– The alleged lack of legal basis

– The alleged infringement of the inspection decision

– The inability to submit an application for immunity

The second plea in law, alleging infringement of the reasonable-time principle

The third plea, alleging infringement of the principle of sound administration

The fourth plea in law, alleging wrongful attribution of liability to PrysmianCS in relation to the period prior to 27 November 2001

– The first limb, alleging breach of the principle of personal responsibility

– The second limb, alleging breach of the principle of equal treatment and of the duty to state reasons

The fifth plea in law, alleging infringement of Article 23(2) of Regulation No 1/2003 in so far as the Commission failed to determine the share of the fine to be paid by each of those held jointly and severally liable from the perspective of their internal relationship

The sixth plea, alleging failure to demonstrate to the requisite legal standard the existence of an infringement of Article 101 TFEU

The seventh plea in law, alleging incorrect determination of the duration of the infringement

The eighth plea in law, alleging infringement of Article 23(2) of Regulation No 1/2003, the 2006 Guidelines on the method of setting fines and breach of the principles of equal treatment and proportionality in the calculation of the fines imposed

– The first limb, alleging infringement of the principle of proportionality

– The second limb, alleging breach of the principle of equal treatment

The ninth plea in law, alleging that the Commission erred by including Mr R. in the list of persons concerned by the contested decision

The claims for a reduction of the amount of the fines imposed on the applicants

The claim for reduction of the amount of the fines imposed on account of errors by the Commission when calculating that amount

The claim for reduction of the amount of the fines imposed on account of the excessive duration of the administrative procedure

Costs
(
*1
)	Language of the case: English.