CELEX: 62018CJ0607
Appeal
Competition
Agreements, decisions and concerted practices
European market for underground and submarine power cables
Market allocation in connection with projects
Fines
Rights of the defence
Regulation (EC) No 1/2003
Article 27(1)
Consistency between the statement of objections and the decision at issue
Access to the file
Single and continuous infringement
Burden of proof
Distortion of arguments and evidence

By their appeal, NKT Verwaltungs GmbH, formerly nkt cables GmbH, and NKT A/S, formerly NKT Holding A/S, ask the Court of Justice to set aside the judgment of the General Court of the European Union of 12 July 2018,
NKT Verwaltungs and NKT
v
Commission
(T‑447/14, not published, EU:T:2018:443
,
‘the judgment under appeal’), by which the General Court dismissed their action for, primarily, annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power Cables) (‘the decision at issue’), in so far as it concerns them, and, in the alternative, a reduction in the amount of the fine imposed on them.
I.
Legal context
A.
Regulation (EC) No 1/2003
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) provides, in Article 23(2) and (3):
‘2.      The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:
(a)      they infringe Article [101 or Article 102 TFEU] …
…
3.      In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
Article 27(1) of Regulation No 1/2003 states:
‘Before taking decisions as provided for in Articles 7, 8, 23 and Article 24(2), the Commission shall give the undertakings or associations of undertakings which are the subject of the proceedings conducted by the Commission the opportunity of being heard on the matters to which the Commission has taken objection. The Commission shall base its decisions only on objections on which the parties concerned have been able to comment. …’
B.
Regulation (EC) No 773/2004
Article 15(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18) provides:
‘If so requested, the Commission shall grant access to the file to the parties to whom it has addressed a statement of objections. Access shall be granted after the notification of the statement of objections.’
C.
Notice on the rules for access to the file
According to paragraph 27 of the Commission Notice on the rules for access to the Commission file in cases pursuant to Articles [101 and 102 TFEU], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (OJ 2005 C 325, p. 7; ‘the Commission Notice on access to the file’):
‘Access to the file will be granted upon request and, normally, on a single occasion, following the notification of the Commission’s objections to the parties, in order to ensure the principle of equality of arms and to protect their rights of defence. As a general rule, therefore, no access will be granted to other parties’ replies to the Commission’s objections.
A party will, however, be granted access to documents received after notification of the objections at later stages of the administrative procedure, where such documents may constitute new evidence — whether of an incriminating or of an exculpatory nature —, pertaining to the allegations concerning that party in the Commission’s statement of objections. This is particularly the case where the Commission intends to rely on new evidence.’
II.
Background to the dispute and the decision at issue
The background to the dispute, set out in paragraphs 1 to 21 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.
NKT and its wholly owned subsidiary NKT Verwaltungs are companies established in Denmark and in Germany, respectively, and are active in the underground and submarine power cable production and supply sector.
By letter of 17 October 2008, ABB AB, a company established in Sweden, provided the Commission with a series of statements and documents concerning restrictive commercial practices in that sector.
The Commission subsequently carried out an investigation.
On 30 June 2011, the Commission adopted a statement of objections which it notified to the undertakings concerned.
In Article 1 of the decision at issue, the Commission found that the appellants and 24 other companies, including ABB AB and ABB Ltd, a company established in Switzerland (together, ‘ABB’), Prysmian Cavi e Sistemi S.r.l and Prysmian S.p.A., two companies established in Italy (together, ‘Prysmian’), Pirelli & C. SpA, a company established in Italy, Nexans SA and Nexans France SAS, two companies established in France (together, ‘Nexans’), Brugg Kabel AG and Kabelwerke Brugg AG Holding, two companies established in Switzerland, Exsym Corporation, a company established in Japan, and Taihan Electric Wire Co., Ltd, a company established in South Korea, had participated in a cartel (‘the cartel’), constituting a single and continuous infringement of Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3; ‘the EEA Agreement’), in the (extra) high voltage underground and/or submarine power cables sector (‘the infringement at issue’).
More specifically, the Commission found that the infringement at issue covered projects relating to all types of underground power cables with a voltage of 110 kilovolts (kV) and above (‘the underground power cable projects’) and all types of submarine power cables with a voltage of 33 kV and above (‘the submarine power cable projects’), including all products, works and services supplied to customers in connection with the sale of power cables, when such sales were part of such a project.
In the decision at issue, the Commission found that the cartel consisted of two main configurations forming a composite whole, namely:
–        a configuration which included the European undertakings, generally referred to as ‘R members’, the Japanese undertakings, referred to as ‘A members’, and the South Korean undertakings, referred to as ‘K members’, and which made it possible to achieve the objective of allocating territories and customers among the European, Japanese and South Korean producers (‘the A/R configuration’). 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, projects were allocated in the ‘export territories’, namely the rest of the world with the notable exception of the United States;
–        a configuration which involved the allocation of territories and customers by the European producers for projects within the European ‘home’ territory or allocated to the European producers (‘the European configuration’).
According to the decision at issue, nkt cables participated in the cartel from 3 July 2002 to 17 February 2006. NKT Holding was found liable for the infringement at issue as the parent company of nkt cables in respect of the same period.
The Commission classified the various cartel participants in three groups, according to the role each of them had played in implementing the cartel: first, the undertakings which formed the core group of the cartel; second, the undertakings which were not part of the core group but which nevertheless could not be regarded as fringe players in the cartel; and, third, the fringe players in the cartel. According to the Commission, the appellants belonged to the last of those three groups.
For the purposes of calculating the amounts of the 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 Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).
In the first place, as regards the basic amount of those fines, the Commission determined the value of sales to be taken into account. It then set the proportion of that value of sales to reflect the gravity of the infringement. In that regard, the Commission found that that infringement, by its very nature, was among the most harmful restrictions of competition, which justified a ‘gravity percentage’ of 15%. It also increased the gravity percentage by 2% for all addressees of the decision at issue on account of their combined market share and the almost worldwide geographic reach of the cartel, which included, in particular, all of the European Economic Area (EEA).
The Commission found, moreover, 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 configuration, the European undertakings had shared power cable projects among themselves in the context of the European configuration. For that reason, the Commission set the proportion of the value of sales to be taken into consideration to reflect the gravity of the infringement at 19% for the European undertakings and at 17% for the other undertakings. For nkt cables, the Commission also included in the basic amount of the fine an additional amount, known as an ‘entry fee’, to deter undertakings from participating in infringements of EU competition law and corresponding to 19% of the value of sales. The basic amount was thus determined to be EUR 4 319 000.
In the second place, as regards adjustments to the basic amount of the fines, the Commission did not find any aggravating circumstances in the appellants’ case. However, as regards mitigating circumstances, it decided to reduce that amount by 10% for undertakings like the appellants which were fringe players in the cartel.
Under Article 2(e) of the decision at issue, the Commission imposed on the appellants, jointly and severally, a fine of EUR 3 887 000.
III.
The procedure before the General Court and the judgment under appeal
By application lodged at the General Court Registry on 16 June 2014, the appellants brought an action for annulment of the decision at issue, in so far as it concerns them, and for a reduction of the fine imposed on them.
In support of their claim for annulment of the decision at issue, the appellants raised four pleas in law before the General Court. The first plea alleged infringement of the rights of the defence and of the principle of equality of arms on account of the Commission’s refusal to give the appellants access to potentially exculpatory evidence contained in the replies to the statement of objections given by the addressees of that statement other than the appellants. The second plea alleged an incorrect definition of the territorial scope of the single and continuous infringement and wrongful application of the criterion of the qualified effects in the European Union or in the EEA of practices relating to projects implemented outside the EEA (‘the qualified effects test’) in order to justify the application of Article 101 TFEU. The third plea alleged a manifest error of assessment in that the Commission had concluded that nkt cables had taken part in a single and continuous infringement and had been aware of all of its constituent elements. The fourth plea alleged an error on the Commission’s part in connection with the duration of the appellants’ participation in the infringement.
By the judgment under appeal, the General Court dismissed the action in its entirety.
First, the General Court considered that it was for the Commission to carry out an initial assessment of the potentially exculpatory nature of the information contained in the replies to the statement of objections given by the addressees of that statement other than the appellants.
It also found that an infringement of the rights of the defence, on account of the Commission’s refusal to provide access to such documents, could be established only if the undertaking seeking access showed that such access could have been useful for its defence, which presupposed that that undertaking had provided prima facie evidence that the undisclosed documents would be useful to its defence. According to the General Court, no such evidence had been adduced by the appellants in the present case.
In addition, the General Court rejected as ineffective the appellants’ argument, advanced at the hearing, that a reading of the non-confidential versions of other addressees’ replies to the statement of objections produced by the Commission in response to a measure of organisation of the General Court’s proceedings confirmed that those replies contained exculpatory evidence, and that it was highly likely that the same applied to the replies to that statement given by the other addressees, for which the Commission had been unable to produce non-confidential versions.
Second, the General Court ruled that the Commission had not erred in finding that Article 101 TFEU was applicable to the various practices of the cartel described in recital 493 of the decision at issue, including those relating to sales outside the EEA, given that those practices had been implemented in the EEA or had foreseeable, direct and substantial effects in that region. Nor, according to the General Court, had the Commission infringed the appellants’ rights of defence by relying, in the decision at issue and to justify its power to penalise certain practices, on their effects in the EEA, in particular those concerning sales outside the EEA, since those practices were already mentioned in the statement of objections.
Third, the General Court held that the Commission had not erred in finding that the appellants had participated in a single and continuous infringement — including certain elements of the infringement disputed by them — that they had been aware of or could reasonably have foreseen certain elements of the infringement at issue and that, as regards certain other elements constituting that infringement, the Commission was not required to prove that the appellants had participated in them or had been aware, or should have been aware, of them.
Fourth, the General Court held that the Commission had not made an error in respect of the duration of the appellants’ participation in the cartel.
IV.
Forms of order sought and the procedure before the Court of Justice
The appellants claim that the Court of Justice should:
–        set aside the judgment under appeal in whole or in part;
–        annul the decision at issue in whole or in part;
–        in the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice; and
–        order the Commission to pay the costs of both the appeal proceedings and the proceedings before the General Court.
The Commission contends that the Court of Justice should:
–        dismiss the appeal; and
–        order the appellants to pay the costs.
Following the written part of the procedure, the parties presented oral argument at a hearing that was held on 26 September  2019 and at the end of which the oral part of the procedure was closed.
By document lodged at the Court Registry on 8 May 2020, the appellants requested that the oral part of the procedure be reopened. In support of that request, they relied on the fact that the General Court had informed them, by letter of 30 April 2020, of its intention to rectify paragraph 139  of the English version of the judgment under appeal, which is the only authentic version, so as to omit the word ‘not’ in the last sentence of that paragraph.
According to the appellants, the proposed rectification appears to be a new fact which is of such a nature as to be a decisive factor for the decision of the Court, since it constitutes further evidence of the fact that the General Court’s erroneous interpretation,  whereby  the infringement at issue covered sales in countries that are not members of the Union or the EEA, influenced the General Court’s assessment of their arguments concerning the scope of that infringement and their participation in it.
It must be recalled that the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in accordance with Article 83  of its Rules of Procedure, in particular where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court.
In the present case, the Court nevertheless considers, having heard the Advocate General, that the rectification of the judgment under appeal envisaged by the General Court cannot be regarded as constituting a new fact which is of such a nature as to be a decisive factor for the decision of the Court. It is apparent from paragraph 60  of the appeal, which cites the content of the last sentence of paragraph 139  of the judgment under appeal while omitting  the word ‘not’, that the  appellants had understood that the presence of that word in the English version of the judgment under appeal, which is authentic, constituted  an obvious inaccuracy on the part of the General Court. The appellants therefore had the opportunity, even at that stage of the procedure, to make submissions on what in their view were the consequences  of that error with respect to the validity of the judgment under appeal.
In those circumstances, there is no need to order the reopening of the oral part of the procedure.
V.
The appeal
In support of their case, the appellants rely on three grounds of appeal. The first alleges errors of law in the determination of the territorial scope of the infringement at issue. The second alleges that the General Court erred in law in its assessment of the scope of the infringement at issue, and in its assessment of the appellants’ participation in that infringement and their awareness of it. The third alleges that the General Court erred in law in holding that the appellants’ rights of defence had not been infringed as regards access to the replies given to the statement of objections by the addressees of that statement other than the appellants. In addition, the appellants request, in essence, that the Court use its unlimited jurisdiction, conferred on the Courts of the European Union in Article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU, in order to reduce the amount of the fine imposed on them in the decision at issue, should the Court set aside the judgment under appeal in whole or in part and decide not to refer the case back to the General Court.
A.
First ground of appeal
1.
Arguments of the parties
By their first ground of appeal, which is divided into three parts, the appellants claim that the General Court made errors of law in relation to the determination of the territorial scope of the infringement at issue.
By the first part of this ground of appeal, which relates to paragraphs 98 to 102 of the judgment under appeal, the appellants submit that, in paragraph 619 of the statement of objections, the Commission excluded from the scope of the alleged infringement ‘activities of the cartel relat[ing] to sales in countries that are not members of the EU or the EEA’. In those circumstances, they argue that they had no opportunity to respond to the inclusion of those activities in the decision at issue and, therefore, to defend themselves in that respect. The General Court had therefore erred in law in holding that their rights of defence had not been infringed.
By the second part of the first ground of appeal, which relates to paragraphs 79, 81, 85, 88 to 97 and 104 of the judgment under appeal, the appellants maintain that the General Court erred in finding that the qualified effects test was applicable in the present case.
By the third part of the first ground of appeal, which relates to paragraphs 88 to 97 of the judgment under appeal, the appellants claim that the General Court erred in law in holding that it was not necessary to prove the foreseeable, direct and substantial effects in the EEA of practices implemented outside the EEA, on the ground that all the practices covered by the decision at issue should be considered together, as a result of which the effects of activities implemented within the EEA were sufficient to prove the foreseeable, direct and substantial effects in the EEA of the activities implemented outside the EEA.
According to the Commission, the first ground of appeal is ineffective. It contends that, in the decision at issue, its territorial jurisdiction over the infringement at issue was based both on the criterion of the implementation of that infringement and on the qualified effects test. To the extent that that jurisdiction was sufficiently established on the basis of the implementation test, it was not therefore relevant whether the qualified effects test was also met.
In that regard, according to the Commission, it is apparent from the case-law that it is necessary to examine the conduct of the undertaking concerned, viewed as a whole, in order to determine whether the Commission has the necessary jurisdiction to apply EU competition law. The appellants had explicitly admitted that the implementation test was applicable in the present case, and had not disputed the fact that certain key aspects of the infringement at issue were implemented in the EEA.
In the Commission’s submission, the first ground of appeal is, in any event, unfounded. As regards, in particular, the first part of this ground of appeal, the appellants had not pointed to any facts that were within the scope of the decision at issue but not within the scope of the statement of objections. In so far as the appellants took the view that the decision at issue concerned facts in respect of which the Commission had no territorial jurisdiction, they could therefore have discussed those facts in their reply to the statement of objections. Accordingly, the appellants had not proved that that they had not had the opportunity during the administrative proceedings to express their views on the truth and relevance of the facts alleged by the Commission. There had thus been no breach of their rights of defence.
In any event, according to the Commission, annulment of the decision at issue for infringement of the rights of the defence is possible only if, without the irregularity, the outcome of the procedure could have been different, which is not, however, the case here.
2.
Findings of the Court
By the first part of the first ground of appeal, the appellants submit that the General Court erred in law in holding that the fact that the decision at issue concerned facts that had been excluded from the scope of the alleged infringement in the statement of objections did not constitute an infringement of their rights of defence.
It should be recalled in that regard that the Commission indicated, in paragraph 619 of the statement of objections, which it addressed to the appellants, that the infringement referred to in that statement did not cover ‘the activities of the cartel relat[ing] to sales in countries that are not members of the EU or the EEA’.
The second sentence of Article 27(1) of Regulation No 1/2003 provides that ‘the Commission shall base its decisions only on objections on which the parties concerned have been able to comment’. That provision enshrines the Court’s case-law on Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [101 and 102 TFEU] (OJ, English Special Edition 1959-62, p. 87), according to which the statement of objections constitutes the procedural safeguard applying the fundamental principle of EU law which requires observance of the rights of defence in all proceedings (judgment of 3 September 2009,
Papierfabrik August Koehler and Others
v
Commission
, C‑322/07 P, C‑327/07 P and C‑338/07 P, EU:C:2009:500, paragraph 35 and the case-law cited).
That principle requires, in particular, that the statement of objections contain the essential elements used against the undertaking concerned, such as the facts, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it. It follows from that principle that a competition decision in which the Commission imposes a fine on an undertaking without first having informed it of the objections relied on against it cannot be held to be lawful (judgment of 3 September 2009,
Papierfabrik August Koehler and Others
v
Commission
, C‑322/07 P, C‑327/07 P and C‑338/07 P, EU:C:2009:500, paragraphs 36 and 37 and the case-law cited).
In the present case, and contrary to the Commission’s contention at the hearing, it is common ground that the infringement established by the Commission in the decision at issue covers certain conduct related to sales outside the EEA. According to recitals 466 and 467 of the decision at issue, the Commission’s territorial jurisdiction to sanction the infringement at issue extended to the European cartel configuration. According to recital 107 of the decision at issue, that configuration covered the allocation of projects in the ‘export territories’ which had been allocated to the European producers’ group.
Admittedly, it is apparent from recital 681 of the decision at issue that the activities of the cartel related to sales in countries that are not members of the Union or the EEA were not covered by that decision if they had no impact on trade in the Union or in the EEA. However, it is apparent from recital 469 of the decision that, according to the Commission, the allocation of projects in countries ‘peripheral to the EEA’ had such an impact.
It follows from this that in finding, in the decision at issue, that the infringement at issue covered conduct related to sales in countries that are not members either of the Union or of the EEA, the Commission based that decision on objections on which the appellants had not been able to present their arguments, contrary to the obligation laid down in the second sentence of Article 27(1) of Regulation No 1/2003.
The Commission’s argument that that conduct was, however, referred to in the statement of objections is not capable of calling that conclusion in question. Given the clear wording of paragraph 619 of the statement of objections, the appellants could not have anticipated that the Commission intended to accuse them of an infringement of EU competition law in relation to that conduct.
If, according to the second sentence of Article 27(1) of Regulation No 1/2003, the Commission is not entitled to base its decisions on objections on which the parties concerned have not been able to present their arguments, given that they were not mentioned in the statement of objections, the same applies
a fortiori
to objections which, according to the information expressly provided in that statement of objections, would not be taken into account by the Commission.
Admittedly, it is apparent from the case-law of the Court that an infringement of the rights of the defence results in the annulment of the contested measure only if, without such an irregularity, the outcome of the procedure might have been different, which it is for the undertaking concerned to show (judgment of 16 June 2016,
SKW Stahl-Metallurgie and SKW Stahl-Metallurgie Holding
v
Commission
, C‑154/14 P, EU:C:2016:445, paragraph 69 and the case-law cited).
That case-law cannot, however, be applied to the infringement of the second sentence of Article 27(1) of Regulation No 1/2003 which, while relating to protection of the rights of the defence, states in binding terms that the Commission is to base its decisions only on objections on which the parties concerned have been able to comment. Where the party concerned was not afforded the opportunity to conduct its defence properly during the administrative procedure with regard to a particular objection, an infringement of the rights of the defence capable of leading to the judgment under appeal being set aside must be found (see, to that effect, judgment of 27 March 2014,
Ballast Nedam
v
Commission
, C‑612/12 P, EU:C:2014:193, paragraphs 25 to 31 and 38).
It follows from this that, in concluding that the Commission was entitled to find, in the decision at issue, that the infringement at issue covered conduct related to sales in countries that are not members of the Union or the EEA, contrary to the provisions of the second sentence of Article 27(1) of Regulation No 1/2003, the General Court made an error of law.
Consequently, the first part of the first ground of appeal is well founded.
The second and third parts of that ground of appeal concern the question whether the Commission was entitled to find, on the basis of the implementation or effects in the EEA of conduct related to sales in countries that are not members of the Union or the EEA, that the infringement at issue covered such conduct. It is apparent from the examination of the first part of this ground of appeal, however, that the inclusion of that conduct in the decision at issue was not consistent with the second sentence of Article 27(1) of Regulation No 1/2003. In those circumstances, there is no further need for the Court to examine the second and third parts of the first ground of appeal.
B.
Second ground of appeal
By their second ground of appeal, which is in three parts, the appellants claim that the General Court made errors of law vitiating its conclusion that the Commission did not err in finding that they had participated in a single and continuous infringement or that they had the requisite level of awareness as regards the various elements of that infringement.
1.
First part of the second ground of appeal
In the first part of the second ground of appeal, which is subdivided into seven subsections, the appellants submit that the General Court erred in law when it confirmed the Commission’s assessment that the various elements of the infringement at issue constituted a single and continuous infringement. According to the appellants, there were in fact separate infringements concerning, on the one hand, underground power cable projects and, on the other, submarine power cable projects.
(a)
The argument relating to ‘pure’ power cable
sales
(1)
Arguments of the parties
In the context of that first part, the appellants submit first of all that the General Court erred in law in finding their argument relating to the inclusion in the infringement at issue of ‘pure’ power cable sales that were not part of a project to be ineffective.
According to the Commission, that argument is inadmissible, in so far as the appellants did not explain which error the General Court committed in that respect.
(2)
Findings of the Court
It must be recalled that it follows, inter alia, from Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal (judgment of 20 December 2017,
Trioplast Industrier
v
Commission
, C‑364/16 P, not published, EU:C:2017:1008, paragraph 21).
In the present case, it is apparent from the appellants’ explanations that the argument outlined in paragraph 63 of the present judgment relates to the General Court’s finding in paragraph 117 of the judgment under appeal, according to which even if the appellants had in fact made sales of power cables that did not form part of a project, that fact would be irrelevant to the existence of the single and continuous infringement found by the decision at issue, so that that argument could be rejected as being ineffective. The appellants, who merely emphasise that their argument relates to the material scope of the infringement at issue, do not explain in any way how that finding of the General Court could be vitiated by an error of law. It follows that that argument must be rejected as being inadmissible.
(b)
The first
subsection
(1)
Arguments of the parties
In the context of the first subsection of the first part of the second ground of appeal, which relates to paragraphs 121 to 123 of the judgment under appeal, the appellants maintain, first, that the General Court’s finding in paragraph 123 of that judgment, that the ‘home territory’ agreement made no distinction between the different types of power cables, is vitiated by an error of law in that the General Court does not address their argument that different ‘home territories’ applied with regard to underground power cable projects, on the one hand, and submarine power cable projects, on the other.
Second, the General Court’s finding, in paragraph 121 of the judgment under appeal, that the ‘home territory’ agreement involved the same European, South Korean and Japanese producers in respect of both underground power cable projects and submarine power cable projects is, in the appellants’ submission, vitiated by an error of law in that it contradicts the reasoning of the decision at issue, according to which Exsym Corporation had participated only in the underground power cable projects part of the cartel, and the South Korean producers had not been aware of the practices related to submarine power cable projects. For the same reason, the General Court had erred in law when holding, in the same paragraph of the judgment under appeal, that the natural persons involved in the various elements of the cartel were the same apart from the employees of Pirelli.
Third, the General Court’s finding, in paragraph 123 of the judgment under appeal, that compensation could operate between underground power cable projects and submarine power cable projects, and that there was therefore a link between the arrangements for both types of project, is, in the appellants’ submission, vitiated by errors of law.
As regards the email exchange reported in recitals 399 and 400 of the decision at issue and referred to in recital 535 of that decision, the General Court had failed to answer the appellants’ argument that that exchange did not deal with an allocation of projects but with an allocation of work within a consortium, as the non-confidential version of Prysmian’s response to the statement of objections showed. The General Court’s failure to examine the exculpatory evidence contained in Prysmian’s response also constituted a breach of the appellants’ rights of defence and a failure to state reasons.
Moreover, the additional examples provided in paragraph 123 of the judgment under appeal had not been referred to in recital 535 of the decision at issue, and the General Court had thus unlawfully substituted its own reasoning for that of the decision. Furthermore, those examples concerned underground power cable projects, not submarine power cable projects.
The Commission contends that the arguments advanced by the appellants in the context of the first part of the second ground of appeal are inadmissible or ineffective.
(2)
Findings of the Court
As regards, first, the appellants’ complaint that, in paragraph 123 of the judgment under appeal, the General Court failed to address their argument that different ‘home territories’ applied with regard to underground power cable projects, on the one hand, and submarine power cable projects, on the other, it is sufficient to note that the General Court addressed that argument in paragraphs 138 and 139 of the judgment under appeal.
Second, so far as concerns the General Court’s finding in paragraph 121 of the judgment under appeal that the ‘home territory’ agreement involved the same European, South Korean and Japanese producers in respect of both underground power cable projects and submarine power cable projects, it is apparent from the decision at issue that Exsym Corporation participated only in the underground power cable projects part of the cartel and that the South Korean producers were not aware of the practices related to submarine power cable projects. It is also the case that the General Court’s conclusion, that the natural persons involved in the various elements of the cartel, with just one exception, were the same, is not entirely consistent with the findings made in that regard in the decision at issue.
However, it must be noted that there is no contradiction between the General Court’s conclusion and the decision at issue in so far as the core group of participants, and of their representatives, was the same. In any event, the appellants have not demonstrated that the errors made by the General Court in that respect are capable of calling in question its general conclusion confirming the existence of a single and continuous infringement covering both underground and submarine power cable projects.
Third, as regards the General Court’s conclusion in paragraph 123 of the judgment under appeal that compensation could operate between underground power cable projects and submarine power cable projects and that there was therefore a link between the arrangements for both types of project, it should be recalled that, in accordance with the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and that evidence does not, therefore, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 26 September 2018,
Philips and Philips France
v
Commission
, C‑98/17 P, not published, EU:C:2018:774, paragraph 40 and the case-law cited).
In the present case, it is apparent from paragraph 123 of the judgment under appeal that the conclusion reached by the General Court in that paragraph is based on an assessment of a number of cases of compensation described in the decision at issue. The fact that the General Court allegedly failed, in respect of one of those cases, to examine the exculpatory evidence submitted by the appellants — assuming that to be the case — cannot therefore prove that an error of law was made by the General Court, since the appellants have neither alleged nor established a distortion of the evidence with respect to the other cases of compensation referred to by the General Court. Those other cases were sufficient to support the General Court’s conclusion that compensation could operate between underground power cable projects and submarine power cable projects.
In addition, it must be noted that, in recital 535 of the decision at issue, and in order to demonstrate that compensation could operate between underground power cable projects and submarine power cable projects, the Commission referred to what it called an ‘example’ of such compensation. By also relying on other cases of compensation that were mentioned in the decision at issue, the General Court did not therefore substitute its own reasoning for that of the Commission in that respect.
It follows that the first subsection of the first part of the second ground of appeal must be rejected.
(c)
The second subsection
(1)
Arguments of the parties
In the context of the second subsection of the first part of the second ground of appeal, which relates to paragraphs 124 to 127 of the judgment under appeal, the appellants submit that the General Court wrongly found that underground power cable projects and submarine power cable projects had been discussed during the same sessions in the meetings held in connection with the infringement at issue.
First, the General Court’s finding, in paragraph 127 of the judgment under appeal, that there is only one example of separate sessions during the meetings that took place in the context of the cartel’s A/R configuration is incorrect in that it thereby contradicts Annex I to the decision at issue, from which it is apparent that the Exsym Corporation representative had only attended the underground power cable projects session at nine meetings that took place between 2002 and 2006, and that the Prysmian representative had only participated in the discussions concerning submarine power cable projects in three meetings that took place in 2002 and 2004.
Second, the appellants maintain that, at the hearing before the General Court, they explained that the way in which the minutes produced always grouped discussions of underground power cable projects and of submarine power cable projects coincided with different sessions organised during the meetings that took place in the context of the cartel’s A/R configuration.
In addition, they had indicated to the General Court that they had located invitations to those meetings which also listed different sessions for underground power cable projects and submarine power cable projects. By not addressing any of those arguments or the evidence clearly showing that different sessions were organised for underground power cable projects and submarine power cable projects, the General Court had failed to sufficiently assess the probative value of the appellants’ evidence and to sufficiently reason its finding.
Third, according to the appellants, the Commission had failed to produce evidence to show that the projects at issue had been discussed during the same sessions in at least 13 meetings, in the context of the cartel’s A/R configuration, as the General Court stated in paragraph 127 of the judgment under appeal. The Commission had submitted 12 documents to the General Court, relating to only 10 meetings, and had included a note on another meeting.
The Commission contests those arguments.
(2)
Findings of the Court
As regards, first of all, the appellants’ argument concerning paragraph 127 of the judgment under appeal, suffice it to note that the fact that an undertaking did not participate in part of the meetings that took place in the context of the infringement at issue does not mean that those meetings all consisted of two entirely distinct and independent sessions.
Second, as regards the appellants’ argument that the General Court failed to take into account the arguments they put forward at the hearing and the documents to which they referred on that occasion in order to demonstrate that the meetings that took place in the context of the cartel’s A/R configuration consisted of different sessions for, on the one hand, underground power cable projects and, on the other, submarine power cable projects, it must be noted that, according to settled case-law, the General Court is not required to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case, provided that the reasoning enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of 26 January 2017,
Villeroy & Boch
v
Commission
, C‑625/13 P, EU:C:2017:52, paragraph 72 and the case-law cited).
In this case, it must be noted that the General Court explained, in paragraphs 124 to 127 of the judgment under appeal, why it considered the appellants’ arguments to be unconvincing. It is, moreover, apparent from those paragraphs of the judgment under appeal that the General Court took into account the documents which the appellants had submitted to it, although the appellants neither alleged nor established any distortion of the evidence in that regard.
Third, as regards the General Court’s finding in paragraph 127 of the judgment under appeal that the Commission had produced evidence in relation to at least 13 meetings in the context of the cartel’s A/R configuration, it must be held that, even if that evidence did in fact concern only 10 meetings, the appellants have not explained how any error on the part of the General Court would have been capable of calling in question the validity of its general conclusions.
It follows that the second subsection of the first part of the second ground of appeal must be rejected.
(d)
The third subsection
In the context of the third subsection of the first part of the second ground of appeal, which relates to paragraphs 128 to 135 of the judgment under appeal, the appellants allege that the General Court made errors of law in disregarding the fact that there were important differences between the arrangements for underground power cable projects and the arrangements for submarine power cable projects.
(1)
Arguments of the parties
First, according to the appellants, the General Court distorted their pleadings by suggesting, in paragraphs 129 and 130 of the judgment under appeal, that they had asserted that the meetings of the R members of the cartel (‘the R meetings’) were divided into different sessions, according to whether the discussions concerned submarine power cable projects or underground power cable projects. In fact, they had maintained that the R meetings were supplementary to the cartel’s A/R configuration sessions on underground power cable projects and that the contacts between ABB and the major producers were supplementary to the cartel’s A/R configuration sessions on submarine power cable projects.
Second, the General Court had failed to adequately state its reasoning by failing to respond to essential arguments and evidence presented by the appellants concerning separate allocation mechanisms.
Third, while the Commission had indicated in the decision at issue that matters relating to submarine power cable projects were ‘occasionally’ discussed at the R meetings, the Commission had argued, in its answer to a question from the General Court on that point, that that was ‘in general’ the case. The General Court had agreed with the Commission in the judgment under appeal. However, that constituted an unlawful substitution of the reasoning of the decision at issue.
Fourth, as regards the Commission’s assertion that the R meetings involved unlawful discussions about submarine power cable projects and allocation of such projects, the General Court, by failing to address their arguments and merely relying on assumptions, including with regard to the ‘GCC’ project, had breached the principle of the presumption of innocence, failed to meet the required standard of proof and failed to state adequate reasons. Admittedly, the notes of the R meeting of 30 June and 1 July 2004, referred to in paragraph 133 of the judgment under appeal, related to two submarine power cable projects. However, those projects were mentioned only in terms of general market information.
Furthermore, the General Court had distorted the evidence and related arguments by stating, in paragraph 134 of the judgment under appeal, that the fact that the ‘Ireland 220 kV’ and ‘GCC’ projects required a technology that the appellants did not possess had no bearing on the finding that those projects were in fact discussed during that meeting. In actual fact, they had merely argued that the Commission had erred in categorising those projects as ‘[submarine power cable] projects’.
Fifth, the General Court’s statement, in paragraph 134 of the judgment under appeal, that the appellants challenged the reliability of the notes of an R meeting was a distortion of the argument they had raised before the General Court, since they had merely called in question the Commission’s interpretation of those notes. The General Court’s finding, in the same paragraph of the judgment under appeal, that those notes mentioned the allocation of the ‘Ireland 220 kV’ project to a company that was not part of the cartel was also a distortion of the argument which they had raised before the General Court, given that they had never asserted that such an allocation had taken place.
The Commission contests those arguments.
(2)
Findings of the Court
It must be noted first that, as the appellants have submitted, they had indicated in the application initiating proceedings that the R meetings were supplementary to the A/R sessions on underground power cable projects and that the contacts between ABB and the major producers were supplementary to the A/R sessions on submarine power cable projects, the latter having never been described, according to the appellants, as sessions of the R meetings.
Even if the General Court did err in finding, in paragraph 129 of the judgment under appeal, that, at the hearing, the appellants had maintained that the R meetings were indeed divided into different sessions, according to whether the discussions concerned underground power cable projects or submarine power cable projects, that error would not be capable of calling in question the General Court’s finding, in paragraph 128 of the judgment under appeal, that the R meetings started with a general part, during which Nexans and Pirelli or Prysmian made the smaller European producers aware of events in the context of the A/R meetings, which themselves covered both underground power cable projects and submarine power cable projects.
It should be borne in mind in that regard that the appellants recognise that the notes of the R meeting of 30 June and 1 July 2004, mentioned in paragraph 133 of the judgment under appeal, refer to two submarine power cable projects. Although the appellants contend that those projects were mentioned only in terms of general market information, they have not established that the General Court made an error of law in finding that these were projects that had been discussed during that R meeting.
Second, as regards the appellants’ argument that the General Court failed to adequately state its reasoning with regard to the allegedly separate allocation mechanisms, it must be noted that, in paragraphs 138 and 139 of the judgment under appeal, the General Court concluded that the ‘home territory’ agreement applied indiscriminately to underground power cable projects and submarine power cable projects and that, in principle, the export territories were the same for underground power cable projects and submarine power cable projects. Consequently, the General Court did address the appellants’ argument on that point, albeit succinctly.
Third, it must be noted that the appellants’ argument concerning the Commission’s use of the expression ‘in general’ relates to the Commission’s conduct and is not, therefore, liable to establish an error of law on the part of the General Court. Although the appellants argue that the General Court agreed, in the judgment under appeal, with the Commission’s view that at R meetings the submarine power cable projects and the underground power cable projects were discussed at a single meeting, they provide no further details in that respect, including with respect to their argument that the General Court thus substituted its own reasoning for that which appears in the decision at issue.
Fourth, as regards the arguments relating to the General Court’s assessment of the Commission’s assertion that the R meetings involved unlawful discussions about submarine power cable projects and the allocation of such projects, it must be held that while on the face of it alleging breach of the principle of the presumption of innocence, of the rules governing the burden of proof and of the obligation to state reasons, the appellants are in fact seeking to challenge the General Court’s assessment of the evidence. In that regard, it must be stated that although the appellants have alleged that, in paragraph 134 of the judgment under appeal, the General Court distorted the evidence, they have not in any way shown what that distortion comprised. In view of the case-law cited in paragraph 76 of the present judgment, those arguments must therefore be rejected as being inadmissible.
Fifth, so far as concerns the appellants’ argument that, in paragraph 134 of the judgment under appeal, the General Court distorted their arguments, it must be held that the appellants have not established that such distortion exists.
It follows that the third subsection of the first part of the second ground of appeal must be rejected.
(e)
The
fourth subsection
(1)
Arguments of the parties
In the context of the fourth subsection of the first part of the second ground of appeal, the appellants submit that the General Court erred in holding, in paragraph 136 of the judgment under appeal, that they had asserted that the practices related to underground power cable projects came to an end with effect from 2006. In fact, they had indicated, in their application initiating proceedings, that those practices had come to an end earlier than those concerning submarine power cable projects since, after 2006, the majority of projects discussed by the members of the core group of the cartel had been submarine power cable projects.
The Commission contests those arguments.
(2)
Findings of the Court
In so far as the appellants wish to argue that the General Court failed to take account of the fact that the cartel lasted for a different period of time as regards, on the one hand, submarine power cable projects and, on the other, underground power cable projects, it is sufficient to note that they have neither alleged nor established that by finding, on the basis of the evidence submitted to it, that the cartel continued to cover the latter projects after 2006, the General Court distorted that evidence. It should also be noted that, by asserting that, after 2006, the majority of projects discussed in the cartel were submarine power cable projects, the appellants are implicitly acknowledging that discussions during that period also related to underground power cable projects.
It follows from this that the fourth subsection of the first part of the second ground of appeal must be rejected.
(f)
The fifth subsection
(1)
Arguments of the parties
In the context of the fifth subsection of the first part of the second ground of appeal, which concerns the alleged differences between the ‘export territories’ for underground power cable projects and submarine power cable projects, the appellants maintain, first, that the General Court misrepresented their position regarding an agreement and an association that preceded the cartel, namely the Super Tension Cables Export Agreement (‘the STEA’) which related to underground power cables, and the Sub-marine Cable Export Association (‘the SMEA’), distorted the underlying evidence and substituted its own reasoning for that of the Commission in the first part of paragraph 139 of the judgment under appeal.
Second, by concluding, in paragraph 139 of that judgment, that the evidence submitted by the appellants could not demonstrate that Greece was not part of the ‘export territories’ for underground power cable projects, the General Court had improperly shifted the burden of proof.
Third, the General Court had erred in law when holding, at the end of paragraph 139 of the judgment under appeal, that if their claim that Greece was not part of the ‘export territories’ for underground power cable projects were proven, that would merely show that there was an exception, which would reinforce the idea that, in principle, ‘export territories’ were the same for submarine and underground power cable projects. If Greece was not an ‘export territory’ for underground power cable projects, the ‘export territories’ arrangement for those projects would have been entirely implemented outside the EEA and could not therefore have been an element of the infringement at issue in accordance with paragraph 619 of the statement of objections.
The Commission contests those arguments.
(2)
Findings of the Court
So far as concerns, first of all, the explanations given by the General Court in paragraph 139 of the judgment under appeal, regarding the STEA and the SMEA, the appellants’ arguments must be considered to be ineffective, since the General Court does not base the conclusion which it reached in that paragraph on those explanations.
As regards, second, the arguments relating to the General Court’s assessment as to whether Greece was part of the ‘export territories’ for underground power cable projects, it must be recalled that the General Court proceeded on the basis of two considerations in that respect.
On the one hand, it found that it was not apparent from the documents produced by the appellants that Greece was not part of those territories, given that those documents only allowed a finding that, during the period covered by those documents, 2001 and 2002, no underground power cable projects had been allocated in Greece, while two submarine power cable projects had been allocated in that country.
On the other hand, as the appellants have acknowledged in paragraph 60 of their appeal, the General Court stated that even if Greece was not part of the ‘export territories’ for underground power cable projects, that would simply mean that there was an exception concerning the definition of those territories, which reinforced the idea that, in principle, those territories were the same for submarine power cable projects and underground power cable projects.
It follows from this that even if the General Court did err in finding that Greece was part of the ‘export territories’ for underground power cable projects, such an error could not affect the conclusion which the General Court reached in paragraph 139 of the judgment under appeal, given that the General Court explicitly took into account the possibility of Greece not being part of those territories. In any event, the appellants have not demonstrated that the fact that, in their view, there were differences between the ‘export territories’ as regards, on the one hand, underground power cable projects and, on the other, submarine power cable projects could call in question the General Court’s conclusion that the Commission was entitled to find, on the basis of all the evidence relied on in the decision at issue, that the appellants had participated in a single and continuous infringement relating to all those projects.
As regards, third, the appellants’ argument whereby, in essence, if Greece was not part of the ‘export territories’ for underground power cable projects, the Commission would not have been entitled to include in the decision at issue the ‘export territories’ arrangement for those projects in the infringement at issue, it is sufficient to note that that argument, which relates to the Commission’s power to penalise that infringement and not the extent thereof, is not capable of calling in question the conclusion of the General Court referred to in the preceding paragraph of the present judgment.
It follows that the fifth subsection of the first part of the second ground of appeal must be rejected.
(g)
The sixth
subsection
(1)
Arguments of the parties
In the context of the sixth subsection of the first part of the second ground of appeal, which relates to paragraph 140 of the judgment under appeal, the appellants submit that the cartel arrangements in respect of submarine power cable projects and underground power cable projects had their roots in two different schemes, namely the SMEA and the STEA. In paragraph 140 of the judgment under appeal, the General Court had merely noted that the SMEA and the STEA offered an important historical context and that the appellants had not adduced any evidence with regard to the different allocation of submarine power cable projects and underground power cable projects in the EEA. The latter statement was, however, vitiated by an error of law.
The Commission contests those arguments.
(2)
Findings of the Court
It is sufficient to note in that regard that the appellants do not advance any concrete argument in connection with this point that might establish the existence of an error of law in the judgment under appeal, but merely refer, in essence, to the arguments advanced in connection with the fifth subsection of the first part of the second ground of appeal, which have already been rejected by this Court.
It follows that the sixth subsection of the first part of the second ground of appeal must be rejected.
(h)
The seventh
subsection
(1)
Arguments of the parties
In the context of the seventh subsection of the first part of the second ground of appeal, relating to the alleged absence of a single objective, the appellants maintain that the General Court erred in law by concluding, in paragraph 141 of the judgment under appeal, and by way of a general reference to a distortion of competition on the market concerned, that the smaller producers of underground power cables and the producers of submarine power cables had shared a common objective, without examining their argument that the smaller underground power cable producers had been excluded from A/R meetings and from the European submarine power cable arrangement. The specific case referred to by the General Court was one isolated example over a period of more than 10 years, involving a single smaller producer of underground power cables, and could not be held to show that all smaller underground power cable producers shared a common objective with the producers of submarine power cables.
The Commission contests those arguments.
(2)
Findings of the Court
In this regard, it is sufficient to note that, in paragraph 141 of the judgment under appeal, and contrary to the appellants’ contention, the concept of ‘common objective’ was determined not by a general reference to a distortion of competition on the markets concerned by the infringement at issue, but by reference to the fact that smaller producers, like the appellants, had reasons to share the cartel’s single objective as described in paragraph 121 of the judgment under appeal, since, in maintaining that general objective, they were able to obtain the allocation of high voltage underground power cable projects in the ‘export territories’ and obtain protection on their respective home territories.
In those circumstances, the appellants’ argument as to the alleged irrelevance of the specific example mentioned by the General Court, in paragraph 141 of the judgment under appeal, must be rejected as being ineffective, in so far as it is not capable of calling that conclusion in question.
It follows that the seventh subsection of the first part of the second ground of appeal and, therefore the first part of the second ground of appeal in its entirety, must be rejected.
2.
Second part of the second ground of appeal
By the second part of the second ground of appeal, the appellants challenge the General Court’s conclusion that the Commission did not err in finding that they had the requisite level of awareness of certain elements of the single and continuous infringement. This part is divided into five subsections.
(a)
The first
subsection
(1)
Arguments of the parties
By the first subsection of the second part of the second ground of appeal, the appellants criticise the General Court’s conclusion, in paragraph 154 of the judgment under appeal, that the Commission had not erred in finding that they were aware of or, at least, could reasonably have foreseen the elements of the infringement at issue relating to submarine power cable projects.
First, as regards the General Court’s finding in paragraph 149 of the judgment under appeal that the participants in the R meetings were made aware of discussions concerning submarine power cable projects that were held during the A/R meetings and that the organisation of separate meetings for submarine power cables was not usual practice, the appellants refer to the arguments which they put forward regarding paragraphs 128 to 135 of the judgment under appeal in connection with the first part of the second ground of appeal.
Second, with regard to the General Court’s finding in paragraph 150 of the judgment under appeal that the employees of the appellants that participated in the R meetings were in contact with the representatives of two other companies, who were aware of the elements of the infringement at issue relating to submarine power cable projects, the appellants maintain that the decision at issue indicated only that those two undertakings were aware of the ‘home territory’ principle, but not of the arrangements relating to submarine power cable projects. In addition, the mere possibility that other people could have informed the appellants’ employees that they were aware of these matters did not satisfy the burden of proof.
Third, so far as concerns the matter mentioned in paragraph 152 of the judgment under appeal, namely the proposal made at the R meeting on 15 March 2005 to entrust the appellants with the role of ‘country coordinator’ for Sweden, because ABB was busy with the ‘NorNed’ project, a submarine power cable project, the appellants submit that that project had already been awarded in 2000 and the fact that it had been mentioned at the meeting of 15 March 2005 did not mean that they were aware of any collusive arrangements in relation to submarine power cable projects.
Fourth, as regards the General Court’s finding, in paragraph 153 of the judgment under appeal, that it was apparent from the evidence produced by the Commission that (i) the appellants had participated in the ‘unwritten’ aspects of the SMEA, which provided for the absence of competition between the Japanese and European producers on their respective home territories and a quota for the allocation of projects in the rest of the world, and had also participated in the ‘unwritten’ aspects of the STEA; and that (ii) the parallel with the functioning of those preceding agreements should have made the appellants aware or put them on enquiry about the fact that the cartel could have included submarine power cables, the appellants maintain that their official membership of the SMEA and the STEA does not prove that they participated in the alleged ‘unwritten’ understanding. In that respect, the General Court had failed to properly explain its reasoning, had not met the requisite standard of proof, had contradicted the findings of the decision at issue and had distorted the underlying evidence.
The Commission contends that, by the arguments raised in the context of the second part of the second ground of appeal, the appellants are — inadmissibly — seeking a reappraisal of the facts by the Court of Justice. In any event, the judgment under appeal is not vitiated by any error in that respect. Moreover, the arguments raised for the first time in the appeal should be rejected as being inadmissible.
(2)
Findings of the Court
As the General Court pointed out in paragraph 148 of the judgment under appeal, it is apparent from the case-law of this Court that an undertaking which has participated in a single and complex infringement by its own conduct, which fell within the definition of ‘agreement’ or ‘concerted practice’ having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may also be liable in respect of the conduct of other undertakings in the context of that infringement throughout the entire period of its participation in that infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (judgment of 26 September 2018,
Infineon Technologies
v
Commission
, C‑99/17 P, EU:C:2018:773, paragraph 172 and the case-law cited).
In the present case it is necessary, therefore, to examine whether the General Court was entitled to rule that the Commission had not erred in finding that the appellants were aware of or, at least, could reasonably have foreseen the elements of the infringement at issue relating to submarine power cable projects.
In that regard, it must be noted that, in paragraph 149 of the judgment under appeal, the General Court recalled, as it had already done in paragraphs 128 to 135 of that judgment, that the R meetings started with a general part during which Nexans and Pirelli or Prysmian made the smaller European producers, such as the appellants, aware of events in the context of the A/R meetings which concerned both submarine power cables and underground power cables and that the organisation of separate sessions at the R meetings, depending on the type of power cable, was not the usual practice of the cartel members. As has already been explained in paragraphs 100 and 101 of the present judgment, it is apparent from examination of the first part of the second ground of appeal that the appellants have failed to demonstrate that the assessment thus made by the General Court in paragraph 149 of the judgment under appeal is vitiated by an error of law.
In those circumstances, the General Court was entitled to conclude that the Commission had not erred in finding, in the decision at issue, that the appellants knew or, at the very least, could reasonably have foreseen that the cartel covered submarine power cable projects, and it is not necessary to consider whether the General Court was also entitled to base that conclusion on the considerations set out in paragraphs 150 to 153 of the judgment under appeal.
It follows from this that the first subsection of the second part of the second ground of appeal must be rejected.
(b)
The second subsection
(1)
Arguments of the parties
By the second subsection, the appellants take issue with the conclusion which the General Court reached in paragraph 163 of the judgment under appeal, according to which the Commission did not err in finding that they were aware or, at least, should have been aware of the ‘home territory’ agreement.
First, the General Court’s conclusion, in paragraph 158 of the judgment under appeal, that because the ‘home territory’ agreement entailed a negative obligation rather than the allocation of projects, its implementation did not require particular discussions outside potential cases of breach, in the appellants’ submission distorts the decision at issue and its underlying evidence.
Second, as regards the conclusions drawn by the General Court, in paragraph 159 of the judgment under appeal, from the fact that the appellants had explained how they had learned, at an R meeting, that the reason why Prysmian and the South Korean producers did not like each other was that Prysmian had entered the South Korean market and the South Korean producers had then, in response, entered the European market, the appellants submit that the General Court does not contest their position that the major European producers never reached a ‘home territory’ agreement with the South Korean producers and that the major European producers always omitted them in communications with the South Korean producers about specific EEA project allocations.
Moreover, the General Court’s assumption, in paragraph 159 of the judgment under appeal, that the fact that, before those events, the South Korean producers and the European producers had refrained from entering each other’s markets could give the appellants legitimate reason to think that there was an agreement providing for respect of the ‘home territory’ was, if true, valid only for the period before Prysmian’s entry into the South Korean market, which took place in the 1990s. In any event, the idea that a producer’s absence from a particular market permits an assumption of market sharing is contrary to the rules relating to the appraisal of evidence. Consequently, the General Court’s approach breached the principle of the presumption of innocence.
Third, the General Court’s finding, in paragraph 160 of the judgment under appeal, that the appellants could have been ‘prone’ to considering the possibility of a ‘home territory’ agreement on the basis of their alleged participation in the unwritten aspects of the STEA constituted an undue broadening of their liability.
Fourth, with regard to the General Court’s finding, in paragraph 161 of the judgment under appeal, that it is quite difficult to imagine that the A and R members of the cartel would agree to allocate power cable projects to themselves in a certain number of ‘export territories’, while accepting that they would fully compete with each other on their respective ‘home territories’, the appellants emphasise that the General Court itself admits that it is technically possible.
Fifth, as regards the General Court’s finding, in the first part of paragraph 162 of the judgment under appeal, that the appellants’ explanation for the absence of Japanese undertakings on the European market and their own absence on the North Asian market was not consistent with their assertion that the entry of South Korean producers into the European market was part of the normal competitive process, the General Court had merely stated that there was an inconsistency without providing any reasons for that finding. Moreover, in the appellants’ submission, their arguments are consistent.
Sixth, the General Court’s finding, in the second part of paragraph 162 of the judgment under appeal, that the appellants’ argument about the entry of South Korean producers into the European market was not confirmed by a document upon which they relied, distorted their argument, since they had relied on that document to show that the Japanese producers did not consider the appellants to be part of the ‘home territory’ arrangement.
The Commission contests those arguments.
(2)
Findings of the Court
It should be noted, first, that, as regards the appellants’ argument that the General Court’s conclusion in paragraph 158 of the judgment under appeal — according to which, because the ‘home territory’ arrangement entailed a negative obligation rather than the allocation of projects, the application of the principle of respect for the ‘home territory’ did not require particular discussions outside potential cases of breach of that principle — distorts the decision at issue and its underlying evidence, the appellants have not specified the parts of the decision at issue and the evidence that were allegedly distorted.
Second, it must, at the outset, be noted that it is not apparent from paragraph 159 of the judgment under appeal, contrary to what is submitted by the appellants, that the General Court did not call in question their argument that the major European producers never reached a ‘home territory’ agreement with the South Korean producers and that the major European producers always omitted them in communications with the South Korean producers about specific EEA project allocations.
Further, contrary to what is argued by the appellants, the General Court did not find that the absence of a producer from the market of the State in which another producer is established and the absence of the latter producer from the market of the State in which the first producer is established permits, as such, an assumption of market sharing as between those two undertakings.
It is apparent from paragraph 159 of the judgment under appeal that the General Court took account of the fact that the appellants had learned, during one of the R meetings in which they participated, that the reason for the dispute between Prysmian and the South Korean producers lay in the fact that Prysmian had entered the South Korean market and the South Korean producers ‘then, in response, entered into the European market’.
While the entry of the South Korean producers into the European market constituted their reaction to Prysmian’s initiative, it must be noted that it did not reflect the normal competitive process, contrary to the appellants’ submission. In fact, and as the General Court correctly stated in paragraph 159 of the judgment under appeal, it may be inferred that, before that initiative, the South Korean producers had refrained from entering the European market and that, in the same way, Prysmian and, apparently, the other European producers, had refrained from entering the South Korean market, which could give legitimate reason to think that there was an agreement providing for respect of the ‘home territory’, and for it to be irrelevant at what precise point the events of which the appellants thus became aware took place.
Third, it should be noted that the General Court did not err in law in finding, in the first part of paragraph 162 of the judgment under appeal, that the appellants’ argument that the reason for the absence of Japanese undertakings on the European market and their own absence on the North Asian market was the existence of barriers to entry into those markets is not consistent with their assertion that the smaller producers were in a position to compete with the major producers.
In those circumstances, the General Court was entitled to conclude that the Commission had not erred in finding, in the decision at issue, that the appellants knew, or at least should have been aware, of the ‘home territory’ agreement, and it is not necessary to examine whether the General Court was also entitled to base that conclusion on the considerations set out in paragraphs 160 to 161 and in the second part of paragraph 162 of the judgment under appeal.
It follows from this that the second subsection of the second part of the second ground of appeal must be rejected.
(c)
The third subsection
(1)
Arguments of the parties
By the third subsection, the appellants object to the General Court’s conclusion in paragraph 169 of the judgment under appeal that, to hold them liable for participation in the infringement at issue, the Commission was not required to prove either that they had directly participated in the practice of collectively refusing to supply accessories and technical assistance to competitors not participating in the cartel, with a view to preventing the entry of those competitors into the EEA market, or that they had been aware of it or should have been aware of it.
According to the appellants, that conclusion is incorrect for two reasons. First, in characterising that element of the infringement at issue as a ‘non-essential characteristic’ of the infringement at issue, the General Court had substituted its own reasoning for that of the Commission. Second, a finding that the Commission was not required to prove the appellants’ participation in or awareness of that practice was contrary to Article 101 TFEU, the presumption of innocence and the principle of personal liability.
The Commission contends that the General Court’s conclusion, which the appellants dispute, is not vitiated by any error. In any event, the appellants had known or should have known that the cartel would be implemented by different practices, such as the refusal to supply accessories and technical assistance to competitors not participating in the cartel.
Furthermore, given that the latter practice was only a means of implementing the cartel, the question whether or not the appellants participated in that aspect of the cartel did not affect the gravity of their infringement. Account should be taken, in that respect, of the fact that the appellants were considered to be among the fringe players of the cartel and that they had been granted a reduction of 10% of their fine because of their substantially limited involvement in the infringement at issue, inter alia to account for their lack of participation in that practice.
(2)
Findings of the Court
It should be borne in mind, as the General Court noted in paragraph 164 of the judgment under appeal, that the Commission acknowledged that the appellants had not participated in the practice of refusing to supply accessories and technical assistance to competitors that were not participating in the cartel. It follows that, in order to hold them liable for that practice, the Commission was required to prove, according to the case-law cited in paragraph 138 of the present judgment, that the appellants had been aware of it or could reasonably have foreseen it. Consequently, the General Court was obliged, in so far as the appellants were disputing liability for that aspect of the infringement at issue, to verify whether the Commission had discharged its burden of proof in that respect.
It must be noted that the General Court did not carry out that examination, however. On the contrary, the General Court explicitly found that the Commission was not obliged to prove that the appellants had been aware of the collective refusal to supply accessories and technical assistance to competitors not participating in the cartel or that they could reasonably have foreseen it, on the ground that the practice was only a non-essential characteristic of the infringement at issue.
Such an interpretation is inconsistent with the case-law cited in paragraph 138 of the present judgment, according to which, to be held liable for the conduct of another participant in the context of a single and continuous infringement, the undertaking must have been aware of it or have been reasonably able to foresee it. The case-law does not distinguish between practices which are ‘essential’ and those which are not.
In that regard, and as the appellants correctly pointed out, the practice in question is among those which the Commission found, in recital 643 of the decision at issue, to be the ‘principal activities’ of the cartel. The additional finding of the General Court, also in paragraph 168 of the judgment under appeal, that practices such as the collective refusal to supply accessories and technical assistance to competitors not participating in the cartel concerned sales of goods or services that were not included in the category of goods and services covered by the infringement at issue is therefore also vitiated by an error of law.
Contrary to what the Commission argued at the hearing, that conclusion is not contradicted by the judgment of 26 September 2018,
Philips and Philips France
v
Commission
(C‑98/17 P, not published, EU:C:2018:774). It must be noted in that regard that paragraphs 84 and 86 of that judgment, to which the Commission made reference, must be read in conjunction with paragraph 83 thereof, in which the Court recalled, in particular, that an undertaking may be held responsible for the conduct of other undertakings within the context of a single and complex infringement only if it was aware or could reasonably have foreseen that conduct.
It follows that, in finding that the Commission could hold the appellants liable for the collective refusal to supply accessories and technical assistance to competitors not participating in the cartel, without having demonstrated that the appellants had been aware or could reasonably have foreseen it, the General Court made an error of law.
That conclusion is not undermined by the Commission’s argument that the 10% reduction of the fine that was granted to the appellants as fringe players in the cartel was intended to take account of their lack of participation in the practice concerned. First, and as has been explained in paragraph 164 of the present judgment, the issue, in the present case, is not whether the appellants participated in that practice but whether they were aware of it or could reasonably have foreseen it. Second, it should be noted that the Commission’s argument relates to the penalties to be imposed on an undertaking because of its liability for a single and continuous infringement, and not the preliminary question as to the extent to which that undertaking can be held liable for that infringement.
Accordingly, it must be concluded that the third subsection of the second part of the second ground of appeal is well founded.
(d)
The fourth subsection
(1)
Arguments of the parties
By the fourth subsection, the appellants take issue with the General Court’s conclusion, in paragraph 174 of the judgment under appeal, that the Commission did not err in finding that they had been aware, or at least should have been aware, of the existence of agreements on price, and of the existence of cover bids.
The appellants argue that, in that respect, the General Court substituted its own reasoning for that of the Commission in recital 617 of the decision at issue. The General Court’s reasoning is, moreover, vitiated by numerous errors.
The Commission contests those arguments.
(2)
Findings of the Court
It is apparent from the case-law that, in the context of the judicial review provided for in Article 263 TFEU concerning Commission decisions relating to proceedings under Articles 101 and 102 TFEU, the Courts of the European Union may in no circumstances substitute their own reasoning for that of the author of the contested act (judgment of 25 July 2018,
Orange Polska
v
Commission
, C‑123/16 P, EU:C:2018:590, paragraph 105 and the case-law cited).
In recital 617 of the decision at issue, the Commission relied on three considerations to prove its contention that the appellants had been aware of the practices implemented by other cartel participants or could reasonably have foreseen them, only the first of which — that the appellants had attended 13 R meetings and that it was highly implausible that they had had no knowledge on that occasion of the wider activities of the other cartel participants — could be relevant in the present case, given that one of the other two considerations concerned the ‘export territories’ and the other, the question whether the infringement at issue extended to submarine power cable projects.
It follows that the General Court could not, without substituting its own reasoning for that of the Commission, base the conclusion which it reached in paragraph 174 of the judgment under appeal on the considerations set out in paragraphs 172 and 173 of that judgment, given that those considerations are not among the considerations on which the Commission relied in the decision at issue.
It must, however, be recalled that, in that decision, the Commission relied on the fact that the appellants had taken part in 13 R meetings to support its conclusion that the appellants were aware of the practice at issue or could reasonably have foreseen it. In view of that implicit reference to the evidence concerning those meetings, it was, therefore, in principle permissible for the General Court to rely, in paragraph 171 of the judgment under appeal, on the notes of one of those meetings, that is the R meeting of 10 February 2004, the contents of which are set out in recital 296 of the decision at issue, in order to conclude that the appellants were aware, or at least should have been aware, of the existence of agreements on price and of the existence of cover bids.
While it is true that, according to paragraph 202 of the judgment under appeal, the discussion concerning one of the projects referred to in the notes of that meeting related to a price ‘likely to be’ too low, submitted by Nexans France, it is apparent from that paragraph that the expression ‘likely to be’ refers to the level of that price, and that its use does not indicate that the General Court had revised its conclusion that those notes demonstrated the existence of agreements on price and of cover bids.
The General Court’s conclusion in paragraph 174 of the judgment under appeal is not undermined by the fact that the General Court relied on a single document. Admittedly, it is apparent from the case-law of the Court of Justice that, in order to establish that there has been an infringement of Article 101(1) TFEU, the Commission must produce firm, precise and consistent evidence. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by that institution, viewed as a whole, meets that requirement (judgment of 26 January 2017,
Commission
v
Keramag Keramische Werke and Others
, C‑613/13 P, EU:C:2017:49, paragraph 52).
In the present case, it was for the Commission to establish that the appellants had been aware of, or could reasonably have foreseen, the existence of agreements on price and of cover bids. However, as the General Court correctly noted, in essence, in paragraph 171 of the judgment under appeal, the contents of the notes of the R meeting of 10 February 2004 were sufficient for a finding that that evidence had been adduced.
Nor is the General Court’s conclusion called in question by the argument raised by the appellants in their reply, according to which their arguments in relation to paragraph 171 of the judgment under appeal form part of a broader line of argument relating to the distortion of the appellants’ pleadings and the evidence, a breach of their rights of defence, failure to adequately state reasons and to address their main arguments, unlawful use of an assumption that is contradicted by the evidence, the decision at issue and the judgment under appeal itself, and failure to meet the requisite standard of proof.
First, the appellants have not established that the General Court’s assessment of the notes of the R meeting of 10 February 2004 constituted a distortion of the evidence derived from those notes. Second, the additional arguments advanced in respect of that assessment in the reply, leaving aside the fact that they are not substantiated in any way, must be considered inadmissible, since, according to Article 127(1) of the Rules of Procedure of the Court, applicable to appeal proceedings by virtue of Article 190(1) of those rules, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.
It is not, however, apparent from the present proceedings that the arguments put forward by the appellants in that regard in their reply are based on matters of law or of fact which were not available to them at the time when their appeal was lodged.
It follows that the fourth subsection of the second part of the second ground of appeal must be rejected.
(e)
The fifth subsection
(1)
Arguments of the parties
By the fifth subsection, the appellants submit that the General Court erred in law in rejecting, in paragraph 178 of the judgment under appeal, their argument that they did not know that the cartel covered projects involving underground power cables with voltages of 110 kV.
According to the appellants, paragraph 175 of the judgment under appeal distorted their line of argument at first instance by stating that it concerned underground power cable projects ‘of 110 kV and above’, whereas it had related only to underground power cable projects of 110 kV. In the decision at issue, the Commission had found, on the basis of just five contacts involving such projects, that that particular class of projects was covered by the infringement at issue.
In addition, the General Court’s conclusion, in paragraph 177 of the judgment under appeal, that the Commission was not required to demonstrate that the appellants knew or should have known that the cartel also applied to that type of power cable was contrary to Article 101 TFEU, the presumption of innocence and the principle of personal liability.
The Commission contests those arguments.
(2)
Findings of the Court
It must be held, in the first place, and as the appellants have correctly noted, that in paragraph 175 of the English version of the judgment under appeal, which is authentic, the General Court wrongly found that the appellants’ arguments related not to projects concerning underground power cables with voltages of 110 kV but to projects concerning such cables with voltages of ‘110 kV and above’.
It should, however, be noted that paragraph 175 of the judgment under appeal merely describes the appellants’ argument, and that the General Court’s findings in relation to that argument are set out in paragraphs 176 and 177 of that judgment. Those findings refer to projects concerning underground power cables of 110 kV, the reference to a voltage of ‘100 kV’ in paragraph 176 of the English version of the judgment under appeal, which is authentic, manifestly constituting a clerical error. In those circumstances, it must be concluded that the appellants have not demonstrated that the General Court’s error in paragraph 175 of the judgment under appeal was such as to call in question the conclusions which the General Court reached in paragraphs 176 and 177 of that judgment.
In the second place, it must be noted, first, that in so far as the appellants seek to call in question the General Court’s conclusion in paragraph 176 of the judgment under appeal that the infringement at issue covered projects concerning underground power cables of 110 kV, their arguments must be rejected as being inadmissible, in the light of the case-law cited in paragraph 76 of the present judgment, given that the appellants are, in essence, asking the Court of Justice to carry out a reappraisal of the evidence which the General Court took into account, without establishing that the latter distorted that evidence.
Second, it should be noted that the appellants do not dispute the fact that the infringement at issue covered projects concerning underground power cables with voltages above 110 kV, nor that they were aware of that fact or could reasonably have foreseen it. Moreover, the appellants have not put forward any argument to suggest that, in the context of the cartel, projects concerning underground power cables of 110 kV differed from those concerning underground power cables with voltages above 110 kV.
In those circumstances, the General Court was entitled to find, without infringing Article 101 TFEU or breaching the principles of the presumption of innocence and personal liability, that the Commission was not required to demonstrate that the appellants knew that the cartel also applied to that type of power cable.
It follows that the fifth subsection of the second part of the second ground of appeal must be rejected.
Accordingly, the third subsection of the second part of the second ground of appeal must be upheld, and the second part must be rejected as to the remainder.
3.
Third part of the second ground of appeal
By the third part of the second ground of appeal, which is divided into three subsections, the appellants challenge the General Court’s rejection of the third to fifth parts of their third plea in law at first instance. By the third part of that third plea, they maintained that there was no European cartel configuration or evidence that, in the context of that configuration, they had been allocated any specific territories or customers. By the fourth part of that plea, they submitted that the Commission had not established their participation in the allocation of, and exchange of information concerning, high voltage underground power cable projects within the EEA between 3 July 2002 and 17 February 2006. By the fifth part of that plea, they denied having been involved in the monitoring of the implementation of price and allocation arrangements or having been aware it.
(a)
The first
subsection
(1)
Arguments of the parties
In the context of the first subsection, which relates to paragraphs 179 to 188 of the judgment under appeal, the appellants submit that, first, it is wrong to make a distinction between an A/R configuration and a European configuration of the cartel, as such an approach leads to a higher degree of culpability for the smaller European producers even though they did not belong to the cartel’s core group.
The General Court’s conclusion in paragraph 180 of the judgment under appeal that, even if the Japanese producers made cover bids to protect the European cartel configuration, they did not participate in the allocation of projects amongst European producers is, in the appellants’ submission, vitiated by an error of law.
As the Court of Justice held in its judgment of 6 July 2017,
Toshiba
v
Commission
(C‑180/16 P, EU:C:2017:520, paragraph 81), with regard to a similarly structured single and continuous infringement, the Asian undertakings’ participation in those activities was their contribution to the infringement and that contribution was comparable to that of European undertakings. Consequently, their conduct was not less serious than that of the European producers.
Second, the appellants argue that the General Court erred in law in concluding in paragraph 184 of the judgment under appeal that, assuming it to be well founded, the appellants’ argument regarding the lack of proof of territorial allocation in the context of the European cartel configuration was ineffective.
The General Court had itself acknowledged that, while reference is in fact made, in recital 493(b) of the decision at issue, to the allocation of territories and customers within the EEA, the numerous examples referred to in that recital actually concern the allocation of individual projects in the EEA to various R members of the cartel.
Moreover, the General Court had found that those projects were generally allocated on a territorial basis, even though no such allegation was contained in the decision at issue. The General Court had therefore erred in law by substituting its own reasoning for that of the decision at issue. In addition, it had breached the appellants’ rights of defence, in so far as they were never given an opportunity to defend themselves against that allegation.
Third, the email of 6 July 2005, which the General Court examined in paragraph 186 of the judgment under appeal, did not indicate a precise location and did not answer the question as to whether the ‘very cold place’ referred to had been allocated to the appellants. Furthermore, by failing to take into account the evidence that they had provided on that point, the General Court had failed to provide adequate reasoning for its conclusion in that respect.
Fourth, the General Court had failed to address their argument that it had not been established that the cartel included allocation of customers.
The Commission contests those arguments.
(2)
Findings of the Court
As regards, in the first place, the appellants’ arguments concerning the European cartel configuration, it must be noted, first, that the appellants have not demonstrated that the General Court erred in law in making a distinction between that configuration and the A/R configuration of the cartel.
Second, it must be held that the appellants’ argument, that the conduct of Asian producers in relation to the European cartel configuration was not less serious than that of European producers, cannot call in question the appellants’ liability for that aspect of the infringement at issue. It follows that that argument must be rejected as being ineffective.
In the second place, as regards the appellants’ argument that there was no evidence to demonstrate that they were allocated specific territories or customers in the context of the European cartel configuration, it must be noted that the General Court relied, in essence, on two considerations in rejecting it. First, it found that although reference is made in recital 493(b) of the decision at issue to the allocation of territories and customers within the EEA, the examples referred to in that recital actually concern the allocation of individual projects. Second, there was evidence, namely an email of 6 July 2005 between two other undertakings that participated in the infringement at issue, that suggested that a certain territory had been allocated to the appellants.
It should be noted at the outset that, at the hearing, and in response to a question put by the Court on that point, the Commission clarified that what the appellants and the other undertakings that participated in the European cartel configuration are accused of is the allocation of individual projects, and not the allocation of territories or of customers.
Admittedly, in recital 493(b) of the decision at issue, the Commission indicated that the European configuration included an allocation of territories and customers within the EEA, whereas, in point (c) of the same recital, it referred to the allocation of projects in the ‘export territories’. Contrary to the Commission’s contention, in essence, at the hearing, the form of words used does not appear only at that point in the decision at issue, since it can also be found in the description of the European cartel configuration in recital 73(b) of that decision.
It must, however, be noted that, as the General Court recalled in paragraph 181 of the judgment under appeal, the numerous examples referred to in recital 493(b) of the decision at issue actually concern the allocation of individual projects in the EEA to various R members of the cartel, which the appellants have not disputed. Accordingly, it is apparent from the description in the abovementioned recital 73(b) that the conduct of which the appellants were accused was their participation in the allocation of projects in the context of the European cartel configuration. The lack of precision in recital 493(b) of the decision at issue, in that respect, however regrettable it may be, had no further effect on the appellants’ rights of defence.
It follows that the first subsection of the third part of the second ground of appeal must be rejected, and it is not necessary to examine the appellants’ arguments relating to paragraph 186 of the judgment under appeal.
(b)
The second
subsection
(1)
Arguments of the parties
By this subsection, which relates to paragraphs 189 to 253 of the judgment under appeal, the appellants dispute, in the first place, as regards the period prior to 10 February 2004, the General Court’s rejection in paragraph 196 of the judgment under appeal of their argument that the Commission wrongly found that they had participated in the allocation of underground power cable projects in the EEA and in the exchange of information concerning such projects. They maintain that they were involved only in the ‘export territories’ arrangement for underground power cable projects.
According to the appellants, the first of the three pieces of evidence on which the General Court relied in that regard, namely a September 2002 email from Nexans, does not contradict their position. The General Court’s conclusion to the contrary, in paragraph 191 of the judgment under appeal, is vitiated by an error of law because it reflects a misunderstanding or distortion of their arguments and is not supported by any reasoned analysis.
So far as concerns the second piece of evidence, an exchange of emails of 22 November 2002, examined in paragraph 192 of the judgment under appeal, the appellants maintain that, by not responding to the explanation which they provided, the General Court failed to fulfil its obligation to state reasons. In addition, holding the appellants liable on the basis of a possible belief imputed to another undertaking constitutes a breach of the principle of the presumption of innocence.
As regards the third piece of evidence, namely the notes of the R meeting on 23 April 2003, examined in paragraph 195 of the judgment under appeal, the General Court had erred in law by distorting and/or disregarding the evidence and the pleas invoked by the appellants and by failing to respond to their main arguments.
According to the Commission, the appellants are essentially challenging the General Court’s interpretation of the three pieces of evidence referred to above, which amounts to an inadmissible request for reappraisal of the facts. As regards the first of those pieces of evidence, the General Court’s reference to ‘export territories’ should be read in the context of paragraph 161 of the judgment under appeal, from which it is apparent that it is difficult to imagine an agreement regarding those territories without a corresponding ‘home territories’ agreement.
In any event, according to the Commission, the appellants’ first argument is ineffective in that the General Court’s conclusions are sufficiently based on other evidence. So far as the second piece of evidence is concerned, referred to in paragraph 192 of the judgment under appeal, the appellants have not indicated precisely the errors of appraisal which would have led to a distortion of the evidence by the General Court. As to the third piece, the appellants have not demonstrated any distortion.
As regards, in the second place, their participation in the infringement at issue in the period between 10 February 2004 and 17 February 2006, the appellants submit, first, that the General Court erred in law by finding, in paragraph 218 of the judgment under appeal, that they had alleged that the discussions with the other producers were limited to public information about calls for tenders and the general market situation.
The appellants acknowledge having participated in an infringement of Article 101 TFEU, but maintain that that infringement was limited to the notification and discussion of underground power cable projects in the EEA without the parties having proceeded to making a formal allocation, as described in recital 648 of the decision at issue, although the producers had indicated their interest, and the strength of that interest, in those projects.
To the extent that this conduct is labelled ‘allocation’ by the General Court, the appellants recognise that this conduct might have come close to ‘allocation’ in a broad sense for certain projects. Any formal allocations had, however, always taken place at separate meetings and through separate communications from which the appellants had been omitted and of which they had not been aware.
Second, the appellants indicate that they accept the general findings of the General Court set out in paragraphs 197 to 253 of the judgment under appeal, including, in particular, those in paragraphs 207 and 252 thereof, but that there are certain findings with regard to specific incidents, namely one of the General Court’s findings in paragraph 207 of that judgment, and the findings referred to in paragraphs 209, 218, 221 and 246 thereof, which, in their view, represent errors of law.
As regards paragraph 207 of the judgment under appeal, the appellants submit that the General Court distorted the evidence by stating that the email of 26 February 2004 to which the General Court made reference did not show that they had not been invited to the R meeting of 3 March 2004. In paragraph 209 of the judgment under appeal, the General Court had distorted the evidence by finding that it was apparent from the notes of a meeting that took place on 1 March 2004 that Nexans had accepted that the appellants could benefit from coordination with ABB in relation to a specific project.
The General Court’s finding, in paragraph 221 of the judgment under appeal, that they had implicitly admitted that the projects mentioned in the notes of the R meeting of 10 December 2004 had actually been allocated, had distorted their arguments. Last, the General Court’s findings in paragraph 246 of the judgment under appeal had arisen from the mistaken portrayal of the appellants’ position in paragraph 218 of that judgment.
The Commission contends that, given that the appellants have stated that they agree with most of the general findings in paragraphs 197 to 253 of the judgment under appeal, their criticism of certain detailed findings must be dismissed as being ineffective since any errors made by the General Court in those detailed findings cannot invalidate its overall conclusion confirming the Commission’s assessment in the decision at issue. In any event, the specific passages in the judgment under appeal that are criticised by the appellants are not vitiated by any error of law.
(2)
Findings of the Court
As regards the appellants’ arguments challenging the General Court’s conclusion that the Commission had not erred in finding that they had participated in the allocation of underground power cable projects in the EEA and in the exchange of information concerning such projects, it must be recalled that, in the decision at issue, the appellants were held liable for such an infringement in respect of the period from 3 July 2002 to 17 February 2006.
It should moreover be noted that, in the judgment under appeal, the General Court examined the appellants’ arguments by distinguishing three periods: the period from 3 July 2002 to 10 February 2004, covered in paragraphs 189 to 196 of the judgment under appeal; the period from 10 February 2004 to 10 December 2004, covered in paragraphs 197 to 216 of that judgment; and finally the period from 10 December 2004 to 17 February 2006, covered in paragraphs 217 to 252 of that judgment.
As regards, in the first place, the period from 3 July 2002 to 10 February 2004, it should be recalled that the General Court relied on three pieces of evidence, consisting of documents or a series of documents, in order to conclude that the Commission had not erred in finding that the appellants had participated in the allocation of underground power cable projects in the EEA and in the exchange of information concerning such projects, namely a September 2002 email, an exchange of emails on 22 November 2002 and the notes of the R meeting on 23 April 2003.
So far as concerns the second of those pieces of evidence, it must be noted that while on the face of it alleging infringement of the obligation to state reasons and breach of the principle of the presumption of innocence, the appellants are in fact seeking to challenge the General Court’s assessment of that evidence, without alleging or demonstrating any distortion of that evidence.
So far as concerns the third piece of evidence taken into account by the General Court, it must be noted that, although the appellants allege distortion of that evidence by the General Court, they have failed to establish such distortion, since, as the General Court correctly observed in paragraph 195 of the judgment under appeal, the second page of the document in question indicates, contrary to the appellants’ contention, that the project referred to was allocated on 25 April 2003.
In the light of the case-law cited in paragraph 76 of the present judgment, the appellants’ arguments relating to the second and third pieces of evidence must therefore be rejected as being inadmissible.
It follows that the appellants have not established that the General Court erred in law by concluding that the Commission was entitled to find that they had participated in the allocation of underground power cable projects in the EEA and in the exchange of information concerning such projects in the period from 22 November 2002 to 10 February 2004.
As regards the first piece of evidence on which the General Court relied, namely the email sent by Nexans in September 2002, it is apparent from paragraph 191 of the judgment under appeal that, in the General Court’s own view, this related to the allocation of projects in the ‘export territories’. However, contrary to the General Court’s finding in that paragraph of the judgment under appeal, it is clear that that evidence does not establish that the appellants had participated, in the period prior to 22 November 2002, in the allocation of underground power cable projects in the EEA.
Therefore, the General Court could not, solely on the basis of that document, find that the Commission had established that the appellants had participated in that infringement in the period prior to 22 November 2002, without infringing the presumption of innocence.
That conclusion is not called in question by the Commission’s argument that paragraph 191 of the judgment under appeal should be read in the light of paragraph 161 thereof, from which it is apparent that it is difficult to imagine an agreement regarding the ‘export territories’ without a corresponding ‘home territories’ agreement.
Suffice it to note in that regard that, by the finding in paragraph 161 of the judgment under appeal, the General Court did not rule out the possibility that an agreement regarding the ‘export territories’ might exist without a corresponding ‘home territories’ agreement. It is apparent from the case-law of the Court that, in view of the presumption of innocence which applies to the procedures relating to infringements of the competition rules that may result in the imposition of fines or periodic penalty payments, the benefit of the doubt must be given to the undertaking to which the decision finding an infringement is addressed (see, to that effect, judgment of 16 February 2017,
Hansen & Rosenthal and H&R Wax Company Vertrieb
v
Commission
, C‑90/15 P, not published, EU:C:2017:123, paragraph 18 and the case-law cited).
It follows that the General Court erred in law by concluding, solely on the basis of the email sent by Nexans in September 2002, that the Commission was entitled to find that the appellants had, in the period from 3 July 2002 to 21 November 2002, participated in the allocation of underground power cable projects in the EEA.
As regards, in the second place, the period from 10 February 2004 to 10 December 2004, it should be borne in mind that the appellants indicated that they accepted the general findings of the General Court set out in paragraphs 197 to 253 of the judgment under appeal, including those in paragraphs 197 to 216 which cover that period. However, in their view, certain findings relating to specific incidents, that is to say, one of the conclusions which the General Court reached in paragraph 207 of that judgment, and the conclusion referred to in paragraph 209 thereof, amount to errors of law. In those circumstances, the appellants’ arguments must be considered ineffective, since they are not capable of calling in question the general conclusion reached by the General Court, in essence, in paragraph 216 of the judgment under appeal, that the appellants participated in the allocation of underground power cable projects in the EEA and in the exchange of information concerning such projects from 10 February 2004 to 10 December 2004.
In any event, it must be noted that the appellants have not established that, in paragraphs 207 and 209 of the judgment under appeal, the General Court distorted the evidence referred to.
As regards, in the third place, the period from 10 December 2004 to 17 February 2006, the appellants’ arguments must also be considered ineffective, for the reasons explained in paragraph 239  of the present judgment. In that regard it should, in particular, be recalled that the appellants do not dispute the General Court’s conclusion in paragraph 252 of the judgment under appeal that it is apparent from the examination, in paragraphs 220 to 242 of that judgment, of the notes concerning the R meetings organised between 10 December 2004 and 17 February 2006 that the Commission did not err in finding that the appellants had actually participated in meetings during which power cable projects in the EEA had been allocated.
In any event, even on the assumption that the General Court did, in paragraphs 221 and 246 of the judgment under appeal, distort their arguments, those errors could not call in question the general conclusion reached by the General Court in that respect.
Accordingly, it must be concluded that the second subsection of the third part of the second ground of appeal is in part well founded.
(c)
The third subsection
(1)
Arguments of the parties
By the third subsection, the appellants challenge the General Court’s rejection of their argument that they did not participate in, and were not aware of, the monitoring of the implementation of price and allocation arrangements in respect of the projects in question.
The General Court’s finding, in paragraph 256 of the judgment under appeal, that the Commission was not required to demonstrate that the appellants had participated in the practices consisting of exchanging position sheets and information on the market and the establishment of obligations to notify, mentioned in recital 493(h) of the decision at issue, or had been aware of them, because those practices were non-essential characteristics of the infringement at issue, is, in the appellants’ submission, erroneous for two reasons. First, in characterising that element of the infringement as ‘non-essential’, the General Court substituted its own reasoning for that of the Commission. Second, holding that the Commission was not required to prove the appellants’ participation in or awareness of those practices was contrary to Article 101 TFEU, the presumption of innocence and the principle of personal liability.
The General Court had also erred in law by holding, in paragraph 257 of the judgment under appeal, that the notes of the R meeting on 10 February 2004 demonstrated that the appellants had been, or could have been, aware of those practices. In addition, by failing to take into account the evidence which they had submitted to it, the General Court had failed to fulfil its obligation to state reasons.
The Commission contests those arguments.
(2)
Findings of the Court
It must be noted that the reasoning underlying the General Court’s rejection of the appellants’ arguments concerning their non-participation in the monitoring of the implementation of price and allocation arrangements in respect of the projects in question, or lack of awareness of those arrangements, is expressed in the form of three considerations.
First, according to the General Court, the Commission rightly found that the appellants had participated in the allocation of individual power cable projects in the EEA and were aware of or should have been aware of the agreements on price. Second, since the relevant practices did not concern the essential characteristics of the single and continuous infringement, the Commission was not required to demonstrate that the appellants had participated in or been aware of them. Third, there was a document that implicated the appellants in those practices, namely the notes concerning the R meeting on 10 February 2004, referred to in recital 296 of the decision at issue and to which the General Court referred in paragraph 257 of the judgment under appeal.
In that regard, it is sufficient to note, first, that the appellants do not dispute the fact that they participated in the R meeting on 10 February 2004 and, second, that they have neither alleged nor established that, by interpreting the notes of that meeting as demonstrating that they had participated in or been aware of the practices at issue, the General Court distorted that piece of evidence.
The appellants’ argument that the General Court failed to fulfil its obligation to state reasons in paragraph 257 of the judgment under appeal cannot succeed, since the evidence on which the appellants rely and which they claim the General Court failed to take into account relates to recital 276 of the decision at issue, and the appellants have not explained how that evidence might show that the General Court erred with respect to the notes referred to in recital 296 of that decision, which were examined by the General Court in paragraph 257 of the judgment under appeal.
It follows from this that the second subsection of the third part of the second ground of appeal is in part well founded, and that the third part must be rejected as to the remainder.
C.
Third ground of appeal
The third ground of appeal, which alleges infringement of the appellants’ rights of defence, is divided, in essence, into three parts.
1.
First part of the third ground of appeal
(a)
Arguments of the parties
By the first part of this ground of appeal, the appellants submit that the General Court erred in law by maintaining, in paragraphs 45, 53 and 54 of the judgment under appeal, that the case-law, according to which it is not for the Commission alone to determine which documents are of use in the defence of the undertaking concerned, does not apply to potentially exculpatory material contained in other addressees’ replies to the statement of objections and supporting documentation. It follows from the case-law that replies to mere requests for information can have exculpatory value. The same must therefore be true
a fortiori
of other undertakings’ replies to the statement of objections.
Further, the right of access to evidence as an application of the general principle of equality of arms pursuant to Articles 41 and 47 of the Charter of Fundamental Rights of the European Union should have at least the same meaning and scope as Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, as interpreted by the European Court of Human Rights.
In the appellants’ submission, it is apparent from that case-law that the prosecution authorities must disclose to the defence all material evidence in their possession both for and against the accused, and only such measures restricting the rights of the defence as are strictly necessary to preserve the fundamental rights of a third party or to safeguard an important public interest will be permissible.
Moreover, according to the appellants, such a breach of the principle of equality of arms is not remedied by the mere fact that access was made possible during the judicial proceedings.
The Commission contests those arguments.
(b)
Findings of the Court
It must be observed that, by asserting that the General Court was wrong to find that the Commission was entitled to carry out an initial assessment of potentially exculpatory material contained in other cartel participants’ replies to the statement of objections, the appellants are claiming, in essence, the right to full and automatic access to those replies.
No such right exists, however.
First, it is apparent from the case-law that access to the file in competition cases is intended in particular to enable the addressees of the statement of objections to acquaint themselves with the evidence in the Commission’s file, so that they can express their views effectively on the conclusions reached by the Commission in its statement of objections, on the basis of that evidence (judgments of 15 October 2002,
Limburgse Vinyl Maatschappij and Others
v
Commission
, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 315, and of 2 October 2003,
Corus UK
v
Commission
, C‑199/99 P, EU:C:2003:531, paragraph 125).
That right of access to the file means that the Commission must provide the undertaking concerned with the opportunity to examine all the documents in the investigation file that might be relevant for that undertaking’s defence. Those documents comprise both inculpatory and exculpatory evidence, with the exception of business secrets of other undertakings, internal documents of the Commission and other confidential information.
Given that replies to the statement of objections are not in the Commission’s file when the undertakings concerned are invited to comment on the objections set out in the statement, access to the file granted after the notification of the statement of objections, in accordance with Article 15(1) of Regulation No 773/2004, cannot cover those replies. It is apparent, moreover, from paragraph 27 of the Commission Notice on access to the file that access is, in principle, granted on a single occasion, after the notification of the objections to the parties concerned, and that as a general rule, therefore, no access will be granted to other parties’ replies to the statement of objections.
However, according to the same paragraph of the Commission Notice on access to the file, a party will be granted access to documents received by the Commission after notification of the objections, where such documents may constitute new evidence — whether of an incriminating or of an exculpatory nature —, pertaining to the allegations concerning that party in the statement of objections.
Second, it is apparent from the case-law of the Court that if a procedural document which may be categorised — since it is capable of exonerating an undertaking which is accused of having participated in a cartel — as ‘exculpatory evidence’ is not communicated to that undertaking, the latter’s rights of the defence are infringed if that undertaking shows that the document at issue could have been useful for its defence (judgment of 19 December 2013,
Siemens and Others
v
Commission
, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 367). However, it cannot be concluded that merely because it did not provide full and automatic access to other cartel participants’ replies to the statement of objections, the Commission infringed an undertaking’s rights of defence.
That conclusion is not called in question by the fact that the Court has held that the rights of the defence are infringed where the Commission does not provide access to the replies to requests for information which it sent to the undertakings concerned during its investigation, on the ground that it could not be excluded that the undertaking concerned could have found in those documents evidence originating from other undertakings which would have enabled it to offer an interpretation of the facts different from the interpretation adopted by the Commission, which could have been of use for its defence (judgment of 25 October 2011,
Solvay
v
Commission
, C‑109/10 P, EU:C:2011:686, paragraph 62).
Undertakings’ replies to the statement of objections are not comparable to the replies given to such requests for information, the content of which has been taken into account by the Commission in its statement of objections and which therefore constitute essential documents relating to the procedure conducted by that institution.
Nor is that conclusion called in question by the appellants’ argument that the right of access to evidence, as an application of the general principle of equality of arms provided for in Articles 41 and 47 of the Charter of Fundamental Rights, should have at least the same meaning and scope as Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights (ECtHR, 16 February 2000,
Jasper v. United Kingdom
, CE:ECHR:2000:0216JUD002705295).
In that regard, it should be noted that, according to the appellants, it is apparent from that case-law that the prosecution authorities must disclose to the defence all material evidence in their possession, both for and against the accused. However, the appellants have not explained how that case-law might call in question the Commission’s approach, which consists, according to paragraph 27 of its notice on access to the file, and in the case of documents it has received after notification of the objections, precisely in giving access to those documents where these may constitute new evidence, whether of an incriminating or exculpatory nature.
Last, as regards the appellants’ argument that the alleged breach of the principle of equality of arms cannot be remedied by the mere fact that access to the documents concerned was made possible during the judicial proceedings, suffice it to note that the General Court did not rely on such a consideration in concluding that the Commission had not infringed the appellants’ rights of defence.
It follows that the first part of the third ground of appeal must be rejected.
2.
Second part
(a)
Arguments of the parties
By the second part of the third ground of appeal, the appellants submit that the General Court erred in law by ruling, in paragraphs 61 to 68 of the judgment under appeal, that they were not able to produce prima facie evidence that the replies of the other addressees of the statement of objections would be useful to their defence.
In that regard, the appellants maintain that, at the hearing before the General Court, and on the basis of the seven non-confidential versions of the replies from other addressees of the statement of objections which the Commission had submitted to the General Court in response to the latter’s request to that effect in a measure of organisation of procedure, they had provided prima facie evidence that a number of elements of those replies would be useful to their defence.
The Commission contends that the General Court reviewed the arguments raised by the appellants in paragraphs 61 to 68 of the judgment under appeal. As regards the examples of potentially exculpatory evidence put forward by the appellants that originated from the replies to the statement of objections which the Commission had produced at the General Court’s request, the appellants were, according to the Commission, making an inadmissible request to the Court for a review of the General Court’s interpretation of the evidentiary value of those examples. In any event, the appellants had referred exclusively to arguments made by other addressees of the statement of objections and not to exculpatory evidence in that regard.
(b)
Findings of the Court
It must be noted that, in paragraphs 56 to 60 of the judgment under appeal, the General Court recalled the case-law of the Court of Justice according to which evidence that information contained in a document could have been useful to an undertaking’s defence may be furnished by showing that the non-disclosure was capable of influencing, to the detriment of the undertaking at issue, the course of the proceedings and the content of the Commission’s decision, or that it could have harmed or rendered more difficult the defence of that undertaking’s interests during the administrative procedure (judgment of 19 December 2013,
Siemens and Others
v
Commission
, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 368).
The General Court also recalled that, according to its case-law, it is nevertheless for the applicants to adduce prima facie evidence that the undisclosed documents would be useful to their defence. The relevance of that criterion has not been disputed by the appellants.
It must, moreover, be noted that the General Court applied that criterion when examining, in paragraphs 61 to 66 of the judgment under appeal, the arguments which the appellants had put forward during the written part of the procedure before the General Court to demonstrate that the documents which had not been disclosed to them contained evidence that could have been useful for their defence. The General Court considered that the appellants had not established that that was the case.
Although the appellants state that their appeal relates to paragraphs 61 to 67 of the judgment under appeal, they do not raise specific arguments concerning paragraphs 61 to 66 of that judgment in so far as, in that part of the judgment, the General Court rejected the arguments which they had put forward during the written part of the procedure before the General Court.
Since, in order to challenge the General Court’s assessment in that respect, the appellants refer exclusively to what they regard as a certain number of examples of potentially exculpatory evidence, taken from the seven non-confidential versions of the replies from other addressees of the statement of objections which the Commission had submitted to the General Court in response to the latter’s request to that effect, it must be concluded that their arguments relate to the assessment of that evidence by the General Court and therefore to paragraph 67 of the judgment under appeal.
However, in paragraph 67 of the judgment under appeal, the General Court held that, in the light of the considerations set out in paragraphs 61 to 66 of that judgment, it had to reject as ineffective the appellants’ argument that a reading of the non-confidential versions of the replies of other addressees of the statement of objections produced by the Commission before the General Court confirmed that those replies contained exculpatory evidence, and that it was highly likely that the same was true of the replies of the other addressees of that statement, for which the Commission was unable to produce non-confidential versions.
In essence, in the abovementioned paragraph 67, the General Court therefore rejected the arguments advanced by the appellants at the hearing by relying on the considerations expounded in paragraphs 61 to 66 of the judgment under appeal.
The appellants merely recalled the evidence to which they had already referred during the hearing before the General Court, without advancing arguments to challenge the considerations in paragraphs 61 to 66 of the judgment under appeal.
In those circumstances, it must be held that the appellants have failed as before to demonstrate that the General Court’s finding, that the arguments advanced by the appellants during the hearing should be rejected, was vitiated by an error of law, and it is not necessary to examine the Commission’s argument that that aspect of the appeal should in any event be considered inadmissible.
Accordingly, the second part of the third ground of appeal must be rejected.
3.
Third part
(a)
Arguments of the parties
By the third part of the third ground of appeal, the appellants submit that, by not giving full access to all replies to the statement of objections, which had been possible by means of a ‘confidentiality ring’, the General Court infringed their rights of defence.
The Commission contests those arguments.
(b)
Findings of the Court
By this part, the appellants claim, in essence, that the General Court failed to adopt a measure of inquiry requiring the Commission to provide, on a confidential basis, all the replies from the other addressees of the statement of objections. It is sufficient in that regard to recall that, according to settled case-law, it is for the Courts of the European Union to decide, in the light of the circumstances of the case and in accordance with the provisions of the rules of procedure on measures of inquiry, whether it is necessary for a document to be produced (judgment of 26 January 2017,
Commission
v
Keramag Keramische Werke and Others
, C‑613/13 P, EU:C:2017:49, paragraph 38 and the case-law cited).
It follows that the third part of the third ground of appeal and, therefore, that ground of appeal in its entirety, must be rejected.
VI.
Setting aside in part of the judgment under appeal
It follows from the foregoing that the judgment under appeal is vitiated by errors of law to the extent that the General Court confirmed the decision at issue in so far as it held the appellants liable for an infringement covering, first, conduct related to sales in countries that are not members of the Union or the EEA; second, a collective refusal to supply accessories and technical assistance to competitors not participating in the cartel; and, third, as regards the period from 3 July 2002 to 21 November 2002, the allocation of underground power cable projects in the EEA.
Accordingly, the judgment under appeal must be set aside in part in so far as it rejected the appellants’ pleas relating to those aspects of the infringement at issue, and the appeal must be dismissed as to the remainder.
That conclusion is not called in question by the argument raised by the appellants during the hearing, and in response to a question put by the General Court on that point, to the effect that the fact that they could not be held liable for an infringement covering conduct related to sales in countries that are not members of the Union or the EEA should lead the Court of Justice to set aside the judgment under appeal in its entirety, on the ground that it would not be possible, in the light of the Court’s case-law, for that judgment to be set aside in part.
Admittedly, it is apparent from the case-law of the Court that partial annulment of an act of EU law is possible only if the elements which it is sought to have annulled can be severed from the remainder of the act (judgment of 4 July 2013,
Commission
v
Aalberts Industries and Others
, C‑287/11 P, EU:C:2013:445, paragraph 64) and such annulment would not cause the substance of that measure to be altered (judgment of 6 December 2012,
Commission
v
Verhuizingen Coppens
, C‑441/11 P, EU:C:2012:778, paragraph 38).
It must, however, be noted that that case-law concerns the issue whether, in cases in which the Commission has accused an undertaking of having participated in a single and continuous infringement but such participation could not be established, the Commission’s decision can be maintained, to the extent that the Commission accuses that undertaking of having at the very least participated in an infringement of Article 101 TFEU.
That is not, however, the situation here, since, notwithstanding the fact that the General Court was wrong to find that the Commission had succeeded in establishing that the appellants could be held liable for certain aspects of the infringement at issue, the appellants have not demonstrated that the General Court erred in law by confirming the Commission’s finding that they had participated in a single and continuous infringement.
It follows from this that point 1 of the operative part of the judgment under appeal must be set aside to the extent that the General Court thereby dismissed the action brought by the appellants for annulment of the decision at issue in so far as that decision finds them liable for an infringement of Article 101 TFEU and Article 53 of the EEA Agreement, and in so far as that infringement concerns, first, conduct related to sales in countries that are not members of the Union or the EEA; second, a collective refusal to supply accessories and technical assistance to competitors not participating in the cartel at issue; and, third, as regards the period from 3 July 2002 to 21 November 2002, the allocation of underground power cable projects in the EEA. Point 1 of the operative part of the judgment under appeal, to the extent that the General Court thereby dismissed the appellants’ application for a reduction in the amount of the fine imposed on them, and point 2 of the operative part of that judgment must also be set aside. The appeal must be dismissed as to the remainder.
VII.
The action before the General Court
In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court of Justice is to quash the decision of the General Court. It may itself give final judgment in the matter, where the state of the proceedings so permits.
In the present case, the Court should give final judgment in the matter, as the state of the proceedings so permits.
With regard, first, to the appellants’ liability for the infringement at issue to the extent that it concerns conduct related to sales in countries that are not members of the Union or the EEA, it should be noted that, as the appellants were not afforded the opportunity to conduct their defence properly during the administrative procedure as regards that aspect of the infringement at issue, the decision at issue must be annulled in so far as it imposes such liability on the appellants (see, to that effect, judgment of 27 March 2014,
Ballast Nedam
v
Commission
, C‑612/12 P, EU:C:2014:193, paragraph 38).
With regard, second, to the appellants’ liability for the infringement at issue to the extent that it concerns a collective refusal to supply accessories and technical assistance to competitors not participating in the cartel, it must be held that the Commission did not establish in the decision at issue that the appellants were aware of that aspect of the infringement at issue or could reasonably have foreseen it. Accordingly, the decision at issue must be annulled in so far as the appellants were held liable for that aspect of the infringement at issue.
With regard, third, to the allocation of underground power cable projects in the EEA in the period from 3 July 2002 to 21 November 2002, it must be noted that the Commission did not identify any evidence that would demonstrate that the appellants had participated in that aspect of the infringement at issue during that period. Accordingly, the decision at issue must be annulled in so far as the appellants were held liable for that aspect of the infringement at issue during that period.
Accordingly, the decision at issue must be annulled in so far as it finds the appellants liable for an infringement of Article 101 TFEU and Article 53 of the EEA Agreement, and in so far as that infringement concerns, first, conduct related to sales in countries that are not members of the Union or the EEA; second, a collective refusal to supply accessories and technical assistance to competitors not participating in the cartel; and, third, as regards the period from 3 July 2002 to 21 November 2002, the allocation of underground power cable projects in the EEA.
With regard to the appellants’ application for a reduction in the amount of the fine imposed on them, it must be noted, first, that they have not disputed in any detail either the calculation of the basic amount of that fine or the Commission’s decision to set a gravity percentage of 19% in their case. In any event, it must be noted that that rate is substantially below the 30% rate provided for in point 21 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, despite the fact that the infringement at issue was among the most harmful restrictions of competition, which, moreover, the appellants do not dispute.
It is true that the appellants suggested at the hearing, in somewhat imprecise terms, that if the Court were to set aside the judgment under appeal, they should enjoy a more substantial reduction in the amount of the fine than that granted to them by the Commission.
The Court, in the exercise of its unlimited jurisdiction, conferred on the Courts of the European Union in Article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU, considers that the partial setting aside of that judgment and partial annulment of the decision at issue does not call in question the reasonableness, on the one hand, of the gravity percentage applied by the Commission with respect to the appellants and, on the other, of the 10% reduction of the fine that was granted to the appellants in the decision at issue, since that partial setting aside or annulment concerns only limited aspects of the infringement at issue.
As regards the duration of the appellants’ participation in the infringement at issue, it must be noted that the Commission failed to establish that the appellants had participated in it during the period from 3 July 2002 to 21 November 2002 in so far as that infringement concerned the allocation of underground power cable projects in the EEA. Moreover, the appellants do not dispute having participated in the infringement at issue, as such, since 3 July 2002.
In those circumstances, the Court, in the exercise of its unlimited jurisdiction, considers it appropriate to reduce the fine imposed on the appellants by EUR 200 000, and to reduce the amount of the fine to EUR 3 687 000.
VIII.
Costs
Under Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.
Under Article 138(3) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.
Since the appellants and the Commission have each succeeded on some and failed on other heads of claim, they must be ordered to bear their own costs of the proceedings at first instance and on appeal.
On those grounds, the Court (Seventh Chamber) hereby:
1.
Sets aside point 1 of the operative part of the judgment of the General Court of the European Union of 12 July 2018,
NKT Verwaltungs and NKT
v
Commission
(T
‑
447/14, not published, EU:T:2018:443) to the extent that the General Court thereby dismissed the action brought by NKT Verwaltungs GmbH and NKT A/S for annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) in so far as that decision finds those companies liable for an infringement of Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992, and in so far as that infringement concerns, first, conduct related to sales in countries that are not members of the European Union or the European Economic Area (EEA); second, a collective refusal to supply accessories and technical assistance to competitors not participating in the cartel at issue; and, third, as regards the period from 3 July 2002 to 21 November 2002, the allocation of underground power cable projects in the EEA;
2.
Sets aside point 1 of the operative part of the judgment of the General Court of the European Union of 12 July 2018,
NKT Verwaltungs and NKT
v
Commission
(T
‑
447/14, not published, EU:T:2018:443) also to the extent that the General Court thereby dismissed the application of NKT Verwaltungs GmbH and NKT A/S for a reduction in the amount of the fine imposed on them, and point 2 of the operative part of that judgment;
3.
Dismisses the appeal as to the remainder;
4.
Annuls Decision C(2014) 2139 final in so far as it finds NKT Verwaltungs GmbH, formerly nkt cables GmbH, and NKT A/S, formerly NKT Holding A/S, liable for an infringement of Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992, and in so far as that infringement concerns, first, conduct related to sales in countries that are not members of the European Union or the European Economic Area (EEA); second, a collective refusal to supply accessories and technical assistance to competitors not participating in the cartel at issue; and, third, as regards the period from 3 July 2002 to 21 November 2002, the allocation of underground power cable projects in the EEA;
5.
Fixes the amount of the fine imposed on NKT Verwaltungs GmbH, formerly nkt cables GmbH, and on NKT A/S, formerly NKT Holding A/S, in Article 2(e) of Decision C(2014) 2139 final at EUR 3 687 000;
6.
Orders NKT Verwaltungs GmbH, NKT A/S and the European Commission to bear their own costs of the proceedings at first instance and of the appeal.
Xuereb      von  Danwitz      Kumin
Delivered in open court in Luxembourg on 14 May 2020.
A. Calot Escobar

P.G. Xuereb
Registrar

President of the Seventh Chamber
*
Language of the case: English.