CELEX: 62009TJ0406
Competition
Agreements, decisions and concerted practices
Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom
Decision finding an infringement of Article 81 EC
Price fixing and market sharing
Fines
Article 23 of Regulation (EC) No 1/2003
2006 Guidelines on the method of setting fines
Mitigating circumstances
Cooperation during the administrative procedure
Obligation to state reasons
Equal treatment
Proportionality
Ability to pay

Background to the dispute
By Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries) (‘the contested decision’) the Commission of the European Communities found that the main suppliers of calcium carbide and magnesium for the steel and gas industries had infringed Article 81(1) EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating, from 7 April 2004 to 16 January 2007, in a single and continuous infringement consisting in market-sharing, quota-fixing, customer-allocation, price-fixing and the exchange of sensitive commercial information relating to prices, customers and sales volumes in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom.
The procedure was initiated following an application for immunity, within the meaning of the Commission notice on immunity from fines and reduction of fines in cartel cases (
OJ 2002 C 45, p. 3
, ‘the 2002 Leniency Notice’), submitted on 20 November 2006 by Akzo Nobel NV.
On 25 January 2007, the applicant Donau Chemie AG submitted an application for the reduction of its fine (recital 342 to the contested decision) in accordance with the 2002 Leniency Notice (‘the applicant’s leniency application’).
In the contested decision (Article 1(c)), the Commission found that the applicant had participated in the infringement from 7 April 2004 to 16 January 2007. In particular, it is apparent from recitals 57, 64 to 92, 114 and 214 to the contested decision that, according to the Commission, during the abovementioned period, the applicant was involved by members of its management or staff in the parts of the agreements or concerted practices which related to calcium carbide powder and calcium carbide granulates. By contrast, the Commission found that the applicant had not been involved in the other part of those agreements and concerted practices, which related to magnesium.
In Article 2(c) of the contested decision, the Commission imposed a fine of EUR 5 million on the applicant in respect of the infringement referred to above.
In determining the amount of the fine which it imposed on the applicant and on the other addressees of the contested decision, the Commission applied the method described in its 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
; ‘the Guidelines’).
That method comprises two stages. First, the Commission determines a basic amount for each undertaking or association of undertakings on the basis of the value of its sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area. The basic amount is related to a proportion of the value of such sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement. In addition, in accordance with point 25 of the Guidelines, irrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the basic amount a sum, known as the ‘entry fee’, of between 15% and 25% of the value of sales, in order to deter undertakings from entering into horizontal price-fixing, market-sharing and output-limitation agreements. Secondly, the Commission may adjust the basic amount of the fine set during the first stage either upwards or downwards to take account of aggravating or mitigating circumstances.
In this case the Commission set at 17% the proportion of the value of sales in relation to the infringement, which was to be taken into account for the purposes of setting both the basic amount of the fine and the entry fee (recitals 301 and 306 to the contested decision). In addition, it is apparent from the table shown in recital 288 to the contested decision that the Commission held that the value of the applicant’s sales of calcium carbonate, in powder form and in granulated form, to be taken into account in order to set the fine, was between EUR 5 million and EUR 10 million for each of those products.
Next, it is clear from recitals 55 to 91 and recitals 92 to 112 of the preamble to the contested decision respectively that the applicant participated in the part of the cartel relating to calcium carbide powder from 22 April 2004 to 16 January 2007 (that is to say, for two years, eight months and 24 days) and in the part of the cartel relating to calcium carbide granulates from 7 April 2004 to 16 January 2007 (two years, nine months and nine days). It is apparent from the table shown in recital 304 to the contested decision that, on that basis, the Commission held that it was appropriate to multiply by 2.5 the proportion (set at 17%) of the value of the applicant’s sales of calcium carbide powder in order to determine the part of the basic amount of the fine relating to that product. As regards calcium carbide granulates, it is apparent from that same table that the Commission decided on a multiplier of 3.
The basic amount of the fine to be imposed on the applicant, as indicated in the table shown in recital 308 to the contested decision, was thus set at EUR 7.7 million. However, for the reasons stated in recitals 342 to 346 of the preamble to the contested decision, the Commission decided to grant the applicant a reduction of 35% of the basic amount of the fine in recognition of its cooperation during the administrative procedure, in accordance with the 2002 Leniency Notice (see paragraph 3 above).
Moreover, in recitals 362 to 378 of the preamble to the contested decision, the Commission considered the requests made by a number of cartel members for a reduction in their respective fines, pursuant to point 35 of the Guidelines. The Commission refused the applicant’s request to that effect (recitals 373 and 374 of the Contested decision), although it granted another cartel member, Almamet GmbH, a 20% reduction in the amount of its fine (recital 372 of the contested decision).
It was on the basis of the considerations summarised in paragraphs 9 and 10 above that the Commission set the fine imposed on the applicant in the contested decision at EUR 5 million.
Procedure and forms of order sought
By application lodged at the Registry of the General Court on 5 October 2009, the applicant brought the present action.
Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur initially designated was assigned to the Third Chamber, to which the present case was accordingly allocated. By reason of the partial renewal of the Court, the present case was allocated to a new Judge-Rapporteur sitting in the same Chamber.
On hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of its Rules of Procedure, requested the Commission to produce certain documents. The Commission complied with that request within the prescribed period.
The parties made oral submissions and gave their answers to the questions put by the Court at the hearing on 16 October 2013.
At the hearing the applicant asked to be allowed to lodge extracts from the statement which it had made to the Commission in the context of its leniency application. The Commission opposed the lodging of the document in question. The Court rejected the applicant’s proposal for the reasons set out in paragraphs 212 to 214 below.
The applicant claims that the Court should:
—
annul Article 2 of the contested decision in so far as it concerns it;
—
in the alternative, reduce the fine imposed on it in the contested decision;
—
order the Commission to pay the costs.
The Commission contends that the Court should:
—
dismiss the action;
—
order the applicant to pay the costs.
Law
The applicant states that its action solely concerns the determination of the amount of the fine which was imposed on it. It argues in this connection that, in determining the amount of the fine which it imposed on the applicant, the Commission committed a number of infringements of EU law and of the Guidelines and the 2002 Leniency Notice. It submits that the Commission disregarded the essential circumstances of the case which stood in its favour and, moreover, that its evaluation and application of the criteria which it employed was legally and factually incorrect, which, it argues, constitutes an infringement of EU law. Furthermore, the Commission unlawfully exceeded its discretion.
Although the applicant has not formally divided its arguments into specific pleas, it is clear from the application that, in substance, it puts forward five pleas in law, alleging, first, incorrect determination of the basic amount of the fine, secondly, unlawful failure to take into consideration mitigating circumstances in its favour, thirdly, infringement of the 2002 Leniency Notice, fourthly, breach of the principles of equal treatment and proportionality and, fifthly, unlawful failure on the Commission’s part to grant it a reduction in the amount of its fine on the grounds of its inability to pay and the particular features of the case. Those pleas will be examined in turn below. In addition, it should be noted that the applicant has devoted a section at the end of its application to the allegation of a breach of essential procedural requirements in that there are several failures to state reasons in the contested decision. However, the applicant does not intend by that part of its application to develop a separate plea, but rather to emphasise that it puts forward in the context of the five abovementioned pleas a number of complaints regarding alleged failures to state reasons in the contested decision. These complaints will therefore be examined along with the remainder of the arguments relating to each of the five pleas.
The first plea, alleging incorrect determination of the basic amount of the fine
The applicant argues that the basic amount of the fine imposed on it, set at EUR 7.7 million in recital 308 to the contested decision, is excessive. The reasoning which the applicant puts forward in this connection falls into six parts, alleging, first, incorrect assessment of the combined market share of the cartel members resulting from an error in the definition of the relevant markets, secondly, a failure on the Commission’s part to take into consideration the fact that the infringement had no impact on the market, thirdly, incorrect assessment of the economic importance of the relevant market, fourthly, incorrect assessment of the relative gravity of its participation in the infringement, fifthly, failure on the Commission’s part to take into consideration the fact that the applicant participated only in some parts of the infringement and, sixthly, an error of law and a breach of the duty to state reasons in connection with the determination of the entry fee.
Introductory remarks
As was pointed out in paragraph 7 above, according to the method laid down in the Guidelines and applied by the Commission in this case, the basic amount of the fine to be imposed on each participant in the cartel is calculated on the basis of a proportion of the value of sales in relation to the cartel, multiplied by the number of years of infringement (point 19 of the Guidelines).
In accordance with point 21 of the Guidelines, ‘as a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales’. Point 22 provides, in this connection, that, ‘[i]n order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented’. According to point 23, ‘[h]orizontal price-fixing, market-sharing and output-limitation agreements ..., which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.’
The entry fee provided for in point 25 of the Guidelines (see paragraph 7 above) is added to the amount thus determined and the resulting figure becomes the basic amount of the fine. As has already been pointed out, the percentage which the Commission decided on in this case, for the purposes of the application of points 19 to 24 as well as point 25 of the Guidelines, was 17% in the case of all of the members of the cartel.
It must be observed at the outset that, in this case, although the nature of the infringement would have justified, in accordance with the terms of point 23 of the Guidelines, the adoption of a percentage of sales at the higher end of the scale (which rises to 30%), the percentage which the Commission decided on, 17%, falls towards the middle of that scale. In so far as the determination of the entry fee is concerned, that same percentage is very close to the lower limit (15%) of the scale provided for in point 25 of the Guidelines. Those facts must be borne in mind when considering the various parts of the reasoning which the applicant puts forward in the context of the present plea.
The first part of the plea, alleging incorrect evaluation of the combined market share of the cartel members resulting from an error in the definition of the relevant markets
The applicant complains, first, from a formal point of view, that the Commission failed to give a statement of reasons or an adequate statement of reasons in the contested decision and, secondly, as to the substance, that the Commission erred in fact and law in its determination of the combined market share of the cartel members. It submits that, had the Commission assessed the markets concerned by the cartel correctly, it would have considered the infringement in question to have been less grave and would have set the basic amount of the fine at a lower figure.
First of all, it should be borne in mind that the obligation laid down in Article 253 EC to state adequate reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (
C-367/95 P
Commission
v
Sytraval and Brink’s France
[1998] ECR I-1719
, paragraph 67, Case
C-17/99
France
v
Commission
[2001] ECR I-2481
, paragraph 35, and Case
C-521/09 P
Elf Aquitaine
v
Commission
[2011] ECR I-8947
, paragraph 146).
It is also clear from the case-law that the statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent European Union Court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see
Commission
v
Sytraval and Brink’s France
, paragraph 28 above, paragraph 63 and the case-law cited, and
T-304/02
Hoek Loos
v
Commission
[2006] ECR II-1887
, paragraph 58).
Furthermore, the obligation to state reasons laid down in Article 253 EC requires that the reasons on which a decision is based be clear and unequivocal. Thus, the reasoning on which a measure is based must be logical and contain no internal inconsistency that would prevent a proper understanding of the reasons underlying the measure (
Elf Aquitaine
v
Commission
, paragraph 28 above, paragraph 151).
First, the applicant argues that the contested decision is vitiated by a failure to state reasons in that recital 297 refers to an ‘overall combined market share in the relevant geographic area within the EEA of the undertakings for which the infringement is established’ of ‘below 80%’. The applicant submits that that statement is meaningless, inasmuch as it could refer to any possible market share up to 80%.
That argument cannot succeed. In this connection, footnote 620, to which recital 297 to the contested decision refers, must be taken into account. That footnote is worded as follows: ‘Estimation based on the value of sales provided by the parties (see recital (288) and footnote 604 in particular) and the data used for the table in recital (46).’
Indeed, recital 46 to the contested decision contains a table setting out the market share in each of the three products to which the cartel related held in 2006 by each of the undertakings that participated in the cartel. The table also sets out, in a separate row, the combined market share held by ‘others’, that is to say, the undertakings active on the same markets that did not participate in the cartel. It is clear from the table that the combined sales in 2006 of the cartel members accounted for between 80% and 85% of all sales of calcium carbide powder in the geographic area concerned, between 65% and 70% of all sales of calcium carbide granulates, and 70% of all sales of magnesium granulates. Moreover, the value in euro of the sales made during that same period by each of the cartel members, established on the basis of information provided by the undertakings themselves, is set out in a table shown in recital 288 to the contested decision.
It follows that, read in context, the statement ‘below 80%’ appearing in recital 297 to the contested decision may easily be understood, as the Commission correctly points out, as meaning that the combined market share of the cartel members is fairly close to, although not in excess of that figure. The statement of reasons given in the contested decision therefore meets the requisite legal standard in that regard.
Secondly, the applicant complains that the Commission failed to state adequate reasons in the contested decision regarding the definition of the markets for the products concerned by the cartel. The applicant argues in this connection that the Commission referred, in recitals 3 et seq. to the contested decision, to the differences between the uses of calcium carbide power and calcium carbide granulates and, in recitals 40 et seq., to the difference between those two products on the demand side. Moreover, the table setting out the market shares shown in recital 46 to the contested decision also distinguishes between calcium carbide powder and calcium carbide granulates. According to the applicant, that information implies that the two products belong to two separate markets, whereas the information given in recitals 182 and 183 to the contested decision, regarding the similar properties of the two products and changes in their prices and cost structures, suggests that the Commission regarded them as belonging to the same market. Similarly, on the matter of the relationship between calcium carbide power and magnesium granulates, the statements made in recital 184 to the contested decision, although ambiguous, tend to suggest that the Commission regarded those two products as belonging to one and the same market. In that context, the statement made in recital 177 to the contested decision that ‘the events which are the subject of this Decision took place on what may be considered two different markets and cover three products’ is, the applicant submits, quite simply incomprehensible. In short, the applicant considers that the Commission’s findings in the contested decision in relation to the markets concerned by the cartel are inconclusive, contradictory and incomprehensible and that the contested decision is consequently vitiated by a lack of reasoning and unlawfulness.
Those arguments, which are based on a partial reading of the contested decision, without regard to context, cannot succeed either.
In recitals 3 to 5 and 7 of the preamble to the contested decision, the Commission made the following statements about the products concerned by the cartel:
‘(3)
Calcium carbide (CaC2) is a chemical compound produced in a carbide furnace through a high temperature reduction process. It has the appearance of greyish white lumps and it is crushed, sieved, grinded and packaged in accordance with each client’s specifications. ... Calcium carbide may be applied in several ways. ...
(4)
In a basic cubic form (granulates) calcium carbide is used in the gas industry for the production of acetylene. Welding and cutting with acetylene is relatively unsophisticated, but remains the most commonly used technique for joining materials in the world. This type of application will be referred to as
calcium carbide granulates
in this Decision.
(5)
In powder form, calcium carbide is used in the steel industry to decontaminate and purify molten steel from oxygen ([deoxidation]) and sulphur (desulphurisation). For desulphurisation purposes, the calcium carbide is mixed with smaller quantities of active ingredients such as carbon dust, flux agents and magnesium to further enhance its properties. ... This type of application will be referred to as
calcium carbide power
in this Decision.
(7)
For desulphurisation purposes in the steel industry calcium carbide competes with magnesium based reagents ... Magnesium is more expensive but requires less volume and acts faster. ... The use of magnesium based reagents for desulphurisation purposes in the steel industry will be referred to as
magnesium granulates
in this Decision.’
In so far as demand for the three products concerned by the cartel is concerned, in recitals 40 to 43 of the preamble to the contested decision the Commission gave the following explanations:
‘(40)
Customers of calcium carbide can be divided into those active in the steel industry (customers of calcium carbide power) and those active in the gas industry (customers of calcium [carbide] granulates). For both categories, the number of customers was limited, each with several plants in the EEA.
(41)
The customers of calcium carbide powder normally purchased from several suppliers. In areas with only one producer (such as Northern Europe) the customer primarily sourced the product from the supplier in its home market.
(42)
For the gas industry, the market was more stable, because a gas plant, for technical reasons, usually uses only one calcium carbide supplier. ...
(43)
The demand for calcium carbide has been decreasing due to economic and technical developments. ... The rising cost of cokes and electricity also made magnesium a more attractive alternative. Some customers could easily switch from the use of calcium carbide powder to magnesium granulates, which was the trend. Furthermore, the consolidation in the European steel and gas industry has led to an increased market power of the customers.’
Recitals 168 to 194 of the preamble to the contested decision, which include recitals 177 and 182 to 184, to which the applicant refers in its arguments, address the question whether the agreements and concerted practices found in the contested decision constituted a single and continuous infringement. As was pointed out in paragraph 1 above, the Commission answered that question in the affirmative.
In particular, recitals 181 to 184 of the preamble to the contested decision are worded as follows:
‘(181)
Seen from the demand side, steel customers may use magnesium granulates as an alternative to calcium carbide. ... Both are desulphurisation reagents for the steel industry and it was logical for the suppliers of calcium carbide based reagents to widen the collusion to magnesium based reagents for those companies involved in the sale of both reagents and benefit from the collusion for calcium carbide powder for magnesium granulates.
(182)
Calcium carbide in granular form may have a different use [from] calcium carbide in powder form (gas industry / steel industry), but seen from the supply side, the products are very similar. ... Only the finishing is different. The untreated product remains the same ... and comes at the same price irrespective of use. As a consequence, the price evolution of the product in granular form is similar to some extent to the price evolution of the product in powder form, with a necessary alignment of the prices for both products in the end. ... It is very much due to this identical cost structure for the untreated product and the price similarity on the market that it was only logical for the companies to benefit from the collusion for calcium carbide powder for calcium carbide granulates.
(183)
Moreover, the agreements/concerted practices on calcium carbide powder for the steel industry affected the commercial behaviour of the undertakings involved for calcium carbide granulates for the gas market and vice versa. In bilateral meetings and telephone contacts the suppliers discussed volumes, clients and prices for the steel and the gas market simultaneously. ...
(184)
The agreements/concerted practices on calcium carbide powder for the steel industry equally affected the commercial behaviour of the undertakings involved for magnesium granulates and vice versa. … Apparently, the competitive threat of the alternative product[s] magnesium and lime was taken into account when deciding on a realistic price increase for calcium carbide powder. ...’
Contrary to the applicant’s assertions, the considerations in the contested decision mentioned in paragraphs 37, 38 and 40 above are clear and in no way contradictory. Indeed, it is clear from the explanations provided in recitals 3 to 5, 40, 41 and 182 to the contested decision that calcium carbide powder and calcium carbide granulates are two different presentational forms of what is, from the point of view of their chemical composition and their production process, the same product. As the Commission points out in recital 182 to the contested decision, it is only the finishing of the lumps of calcium carbide (mentioned in recital 3 to the contested decision) that differentiates the two types of calcium carbide referred to in the contested decision. Those two types of product satisfy the requirements of two different industries: for the gas industry, the calcium carbide lumps are broken into cubic granulates (see recital 4 to the contested decision), while, for the steel industry, the lumps are ground into powder (recital 5). Since what is at issue is the sale of something that is essentially the same product in two different presentational forms, the consideration set out in recital 182 to the contested decision that changes in the respective prices of those two forms of product are similar is entirely logical and comprehensible.
In so far as concerns magnesium granulates, it is clear from recitals 7, 43 and 184 to the contested decision that, although this is an entirely different product from a chemical point of view, it is nevertheless destined for to the same users as those that use calcium carbide powder, for which it may be substituted (that is to say, the steel industry).
Read in context, the assertion made in recital 177 to the contested decision that the actions with which the contested decision is concerned were taken ‘on what may be considered two different markets’ can only be understood as meaning that the markets in question are those for the reagents destined respectively for the gas industry (calcium carbide granulates) and the steel industry (calcium carbide powder and magnesium granulates). Moreover, that conclusion is confirmed by the title of the contested decision (see paragraph 1 above). Notwithstanding, the Commission was careful to present separately, in the tables shown in recitals 46 and 288 to the contested decision, the sales made in each of the three products, even though two of them belong to the same market.
It follows that the contested decision is not vitiated by a lack of reasoning in so far as concerns the definition of the markets for the products covered by the cartel.
Thirdly, the applicant complains that the Commission wrongly defined the markets in question and that, as a result, the market shares stated in the contested decision are incorrect and do not provide the basis for proper assessment of the factors that were taken into consideration in calculating the basic amount of the fine, as set out in point 22 of the Guidelines.
In this context, the applicant complains that the Commission wrongly defined the market concerned as being that for calcium carbide, without distinguishing between calcium carbide granulates and calcium carbide powder. That argument however, must, be rejected since it is founded on an incorrect premiss. As is clear from paragraphs 41 to 43 above, the Commission indeed drew a distinction in the contested decision between the market for reagents for the gas industry (calcium carbide granulates) and the market for reagents for the steel industry (which include calcium carbide powder).
The applicant also points out that the market to which calcium carbide powder belongs also includes magnesium granulates and lime and that the latter is also regarded by customers as a product that may substitute for calcium carbide powder and magnesium granulates, since it has similar characteristics to the other two products and is sold at a similar price.
As the applicant points out, it had already raised this argument in its reply to the statement of objections. The argument was examined and rejected in recital 298 to the contested decision, which is worded as follows:
‘Donau Chemie argues in its reply to the Statement of Objections that lime is an alternative to calcium carbide and magnesium for desulphurisation purposes in the steel industry. ... The relevant market would therefore be wider and the combined market share of the cartel members lower. It is correct that (quick) lime is traditionally added to the magnesium and/or calcium carbide based reagents for desulphurisation purposes. As a separate product, it is not, however, commonly used in Europe as an alternative for magnesium and/or calcium carbide-based reagents because it progresses the desulphurisation process very slowly. ... There is no indication that the lime market was affected by the cartel arrangements. Furthermore, even if lime were to be taken into account in relation to the product market, the resulting changed market shares in this case would not have had any influence on the way the Commission takes this factor into account in order to assess the gravity of the infringement in this decision.’
It must be observed that, in its application, the applicant did not put forward any specific argument to demonstrate in what way the abovementioned considerations in the contested decision are incorrect. In its reply, it argued that there was a contradiction between recitals 298 and 184 to the contested decision: whereas, in the first, it is stated that lime is not used as a substitute product for calcium carbide powder, in the second it is expressly described as such. That argument cannot, however, succeed.
Admittedly, recital 184 to the contested decision refers to ‘the competitive threat of the alternative product[s] magnesium and lime’, which was ‘taken into account when deciding on a realistic price increase for calcium carbide powder’. Nevertheless, that statement does not contradict the explanations given in recital 298 to the contested decision, according to which, in substance, lime is not commonly used in Europe as an alternative to calcium carbide powder and magnesium granulates. Indeed, lime could still have constituted a ‘competitive threat’, in the sense that a very significant increase in the price of calcium carbide powder might have led producers in the steel industry to alter their practices and start using lime as a desulphurisation reagent.
In addition, the applicant also referred in its reply to ‘recent developments’ in the market for desulphurisation reagents for the steel industry, maintaining that the total demand for calcium carbide power for desulphurisation purposes had decreased from 140000 tonnes in 2000 to just 90000 tonnes. It also gave examples of European steel plants owned by a number of undertakings in which the use of calcium carbide power had been replaced with lime.
Whilst it is true that, in recital 43 to the contested decision (transcribed in paragraph 38 above), the Commission itself acknowledged the continued decrease in demand for calcium carbide, the fact remains that the applicant has provided no evidence whatsoever in support of its assertion that that decrease is attributable to the replacement of calcium carbide by lime. Equally, it has failed to provide any evidence to support its assertions concerning the replacement of calcium carbide powder by lime in various European factories. That being so, it cannot be held that the Commission’s decision is vitiated by any error in so far as no account was taken of sales of lime in the determination of the combined market shares of the cartel members.
The applicant also argues that the market for calcium carbide granulates also includes the market for petrochemical acetylene. It explains that, as stated in recital 4 to the contested decision, calcium carbide granulates are used in the gas industry for the production of acetylene, which is used in welding. The Commission, however, failed to take into account the possibility of using, for the same purpose, acetylene obtained by petrochemical processes. Petrochemical acetylene has the same uses and price structure as acetylene obtained from calcium carbide granulates and the two products are substitutable, as is proven by the case of a customer of the applicant’s which recently stopped production and packaging of acetylene obtained from calcium carbide and is now using petrochemical acetylene.
As the Commission correctly points out, the applicant’s allegations regarding the supposed substitutability of acetylene obtained from calcium carbide power and acetylene obtained by petrochemical processes are, like its allegations concerning lime, unsupported by any evidence. They are therefore incapable of founding a complaint against the Commission for having wrongly defined the markets concerned by the cartel and wrongly determined the combined market share of the undertakings which participated in it.
It must also be pointed out that the applicant merely asserts that, had the Commission correctly defined the markets at issue, the combined market share would have been ‘well below’ that found in the contested decision, which would have lessened the gravity of the infringement and justified setting the basic amount of the fine at a lower figure.
However, it must be observed that that argument is vague and general and cannot support the conclusion that the assessment of the gravity of the infringement in the contested decision is vitiated by error. Indeed, the applicant has failed to identify the principal suppliers of lime and petrochemical acetylene to the steel and gas industries respectively in the geographic area concerned by the cartel, or their sales volumes. Nor has it provided even approximate figures for the market shares, as adjusted in accordance with its own conception of the matter, held by the cartel members and by non-participating undertakings respectively. In the absence of such information, the applicant’s assertion that a correct definition of the markets at issue would have significantly lessened the gravity of the infringement is nothing more than a mere allegation and cannot succeed.
It follows that the contested decision is not vitiated by any failure to state reasons or to state adequate reasons in so far as concerns the combined market share held by the cartel members or the definition of the markets concerned by the cartel. It must also be concluded that the applicant has failed to demonstrate that the Commission committed any factual or legal error in this regard, and that institution cannot, therefore, be reproached for having acted unlawfully in determining the gravity of the infringement or in setting the basic amount of the fine.
In any event, it must be recalled that, pursuant to Article 31 of Council Regulation (EC) No 1/2003 of 16 December 2009 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (
OJ 2003 L 1, p. 1
), in the matter of fines for the infringement of the rules on competition, the General Court has unlimited jurisdiction and may therefore substitute its own assessment for that of the Commission and, consequently, cancel, reduce or increase the fine or periodic penalty payment imposed (Case
C-389/10 P
KME Germany and Others
v
Commission
[2011] ECR I-13125
, paragraph 130).
When exercising its unlimited jurisdiction, the General Court is not bound by the Guidelines, which do not prejudge the assessment of the fine by the Courts of the Union (Joined cases
T-49/02 to T-51/02
Brasserie nationale and Others
v
Commission
[2005] ECR II-3033
, paragraph 169, and Joined Cases
T-101/05 and T-111/05
BASF and UCB
v
Commission
[2007] ECR II-4949
, paragraph 213). Indeed, although the Commission must observe the principle of the protection of legitimate expectations when it applies its self-imposed rules, such as the Guidelines, that principle cannot bind the Courts of the Union in the same way, in so far as they do not propose to apply a specific method of setting fines in the exercise of their unlimited jurisdiction, but consider case by case the situations before them, taking account of all the matters of fact and of law relating to those situations (judgment of 30 May 2013 in C‑70/12 P
Quinn Barlo and Others
v
Commission
, not published in the ECR, paragraph 53).
Nevertheless, the case-law of the Court of Justice also makes clear that the exercise of unlimited jurisdiction with regard to the determination of fines cannot result in discrimination between undertakings which have participated in an agreement contrary to the competition rules of EU law. If the General Court intends, in the case of one of those undertakings, to depart specifically from the method of calculation followed by the Commission, which it has not called into question, it must give reasons for doing so in its judgment (
Quinn Barlo and Others
v
Commission
, paragraph 59 above, paragraph 46).
In the present case, there is nothing to justify departing from the method for determining the amount of the fine set out by the Commission in the Guidelines. Consequently, following that method, the Court may, in the exercise of its unlimited jurisdiction, substitute its own assessment of the gravity of the infringement at issue for that of the Commission and, if appropriate, alter the percentage decided on by the Commission for the purposes of applying points 19 and 25 of the Guidelines.
Infringements involving price-fixing and market-sharing, aspects which are present in this case, have consistently been characterised in the case-law as ‘intrinsically serious’ (Case
C-199/99 P
Corus UK
v
Commission
[2003] ECR I-11177
, paragraph 80, Case
C-554/08 P
Carbone-Lorraine
v
Commission
[2009], not published in the ECR, paragraph 44; see also Case T-410/03
Hoechst
v
Commission
[2008] ECR II-881
, paragraph 325 and the case-law cited).
That being so, even if it were to be accepted that, as the applicant argues, the combined market share of the undertakings which participated in the cartel was significantly smaller than that found by the Commission in the contested decision, the figure of 17% of the value of sales in relation to the infringement, decided on by the Commission for the purpose of setting the basic amount of the fine and the entry fee, in no way exceeds what was reasonable in this case, particularly in light of the general remark made in paragraph 26 above. It would not, therefore, be appropriate for the Court, in the exercise of its unlimited jurisdiction, to fix a lower percentage.
Finally, there is no basis for the applicant’s argument that there is a lack of reasoning or a lack of adequate reasoning in the contested decision inasmuch as, in recital 298 to the decision, the Commission gave no intelligible explanation as to why a different definition of the market concerned by the infringement would have had no influence on its assessment of the gravity of the infringement. This argument of the applicant’s addresses a reason that could have been stated, but only for the sake of completeness, in that the conclusion that it was not appropriate for sales of lime to be taken into account for the purpose of determining the combined market share of the cartel members was supported, to the requisite legal standard, by the assertion that lime was not commonly used in Europe in place of calcium carbide power and magnesium granulates, an assertion which the applicant has not succeeded in calling into question. Furthermore, the consideration set out in the preceding paragraph also supports the conclusion that, even if this argument of the applicant’s were well founded, it could not justify a reduction in the percentage of sales in relation to the infringement taken as a basis in the contested decision for fixing the basic amount of the fine (including the entry fee).
It follows from all the foregoing considerations that the Court must reject the first part of the first plea.
The second part of the first plea, alleging a failure on the Commission’s part to take into consideration the fact that the infringement had no impact on the market
The applicant complains that the Commission incorrectly assessed the criterion of the implementation of the infringement and its effects on the market, of which it was appropriate for account to be taken when fixing the basic amount of the fine. In its reasoning, the applicant refers to point 22 of the Guidelines, which includes the matter of ‘whether or not the infringement has been implemented’ as one of the criteria to be taken into account in fixing the proportion of sales to be used as a basis for determining the basic amount of the fine. It also submits that it is clear from the judgment in
Degussa
v
Commission
(Case
T-279/02 [2006] ECR II-897
, paragraph 247) and from the Commission’s decision-making practice that the question of whether or not an infringement has had actual effects on the market is relevant to the assessment of the gravity of that infringement.
According to the applicant, it is clear from the judgment in
Degussa
v
Commission
, paragraph 66 above (paragraph 231) that the actual effects of a cartel on the market are to be regarded as sufficiently well established if the Commission has been able to provide specific, credible evidence that proves, to a reasonable degree of probability, that the cartel has had an impact on the market. Moreover, in its judgment of 12 September 2007 in
Prym and Prym Consumer
v
Commission
(Case T‑30/05, not published in the ECR), the General Court held that the Commission must do more than merely adduce evidence of the implementation of a cartel in order to demonstrate that it actually had an impact on the market.
According to the applicant, it is true that, in the present case, the infringement at issue was implemented, at least in part. However, it demonstrated during the course of the administrative procedure that customers had not suffered harm as a result of the implementation of the infringement, and this was for a number of reasons: they were not dependent on supplies from the undertakings which participated in the cartel, their profits reached record levels during the period of the infringement, there was frequent ‘cheating’ in the implementation of the infringement and, lastly, customer purchasing power was so considerable that it scarcely permitted any increase in prices. It follows, according to the applicant, that any effects that the cartel had on the market were, in any event, negligible. In particular, the recitals to the contested decision referred to in recital 300 and footnote 624 may, at most, prove that the cartel was partially implemented, but they signally fail to prove that it had an impact on the market.
In view of the arguments which the applicant puts forward, it is necessary, first of all, to point out that there is difference between the criterion of whether or not an infringement has been implemented and the criterion of its actual impact on the market. In the case of an infringement such as that here in issue, consisting in market-sharing, quota-fixing, customer allocation, price-fixing and the exchange of sensitive commercial information, the first of the two abovementioned criteria must be regarded as having been satisfied if it is demonstrated that what was agreed among the participants in the cartel was in fact implemented in their commercial practices, that is to say, that the cartel members took measures to apply the agreed prices, for example, announcing them to customers, instructing their employees to use them as the basis for negotiation and monitoring their application by their competitors and their own sales departments (Joined Cases
T-259/02 to T-264/02 and T-271/02
Raiffeisen Zentralbank Österreich and Others
v
Commission
[2006] ECR II-5169
, paragraph 285). The applicant acknowledges that the Commission was right to find, in the contested decision, that this criterion was satisfied in the case of the infringement at issue.
In so far as concerns the criterion of the actual impact of the infringement on the market, that raises the question of the real effect of the implemented infringement on competition in the market in question. Whilst, admittedly, the implementation of an infringement is a relevant factor that, depending on the particular circumstances of the case, may be sufficient to found the conclusion that the infringement at issue has had a real impact on the market (see, to that effect, Case
T-38/02
Groupe Danone
v
Commission
[2005] ECR II-4407
, paragraph 148, and
Raiffeisen Zentralbank Österreich and Others
v
Commission
, paragraph 69 above, paragraphs 283 to 288), the fact remains that the implementation of an agreement does not necessarily mean that it has an actual impact (
Prym and Prym Consumer
v
Commission
, paragraph 67 above, paragraph 110; see also, to that effect, Case
T-43/02
Jungbunzlauer
v
Commission
[2006] ECR II-3435
, paragraph 157). The criteria of whether or not the infringement has been implemented and of its actual impact on the market as thus quite distinct and it cannot be presumed that, where the former is satisfied, the latter will automatically be satisfied also.
Clearly, point 22 of the Guidelines expressly mentions the first of these two criteria as one of the factors which the Commission has undertaken to appraise when deciding whether the proportion of the value of sales in relation to the infringement, to be taken as a basis for determining the basic amount of the fine, should be at the lower end or at the higher end of the scale mentioned in point 21 of the Guidelines, which rises to 30%. The Guidelines do not, by contrast, provide for the actual impact on the market to be taken into account in the determination of the basic amount of the fine. Point 5 of the Guidelines, according to which ‘the duration of the infringement ... necessarily has an impact on the potential consequences of the infringement on the market’, cannot lead to any different conclusion, since, as the Commission correctly points out, that point is made solely to justify the fact that the proportion of the value of sales decided on in accordance with points 19 to 23 of the Guidelines will, in accordance with point 24 thereof, be multiplied by the number of years of the infringement’s duration.
It follows that the Commission cannot be reproached for infringing the Guidelines by omitting to analyse in the contested decision the possible impact of the infringement at issue on the market and by omitting to take such an analysis into account in its determination of the basic amount of the fine.
In this connection, the Commission correctly points out that the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ESCS Treaty (
OJ 1998 C 9, p. 3
; ‘the 1998 Guidelines’) expressly provided, in the first indent of Section 1 A thereof, that, when assessing the gravity of an infringement, the Commission had to consider its actual impact on the market where it appeared that that could be measured. The case-law to which the applicant refers in its arguments relates to cases in which the 1998 Guidelines were applied (
Degussa
v
Commission
, paragraph 66 above, paragraph 214, and
Prym and Prym Consumer
v
Commission
, paragraph 67 above, paragraph 108).
It must be observed in this connection that, while the Commission may not depart from rules which it has imposed on itself, without giving reasons for so doing which are consistent with the principle of equal treatment, it is nevertheless free to modify those rules or to replace them. In a case that falls within the scope of the new rules, such as that of the infringement at issue, which falls,
ratione temporis
, within the scope of the Guidelines, as is clear from point 38 thereof, the Commission cannot be criticised for having failed to analyse, for the purpose of determining the gravity of the infringement, a criterion not provided for by those new rules, solely on the ground that its analysis was provided for under the earlier rules (see, to that effect, Case T‑352/09
Novácke chemické závody
v
Commission
[2012] ECR, paragraph 93).
The applicant nevertheless argues that the Commission was required to carry out an overall legal and economic assessment of all the relevant circumstances in order to determine the gravity of the infringement and that, in that context, it ought also to have analysed the actual effects of the infringement at issue on the markets concerned and should have fixed the basic amount of the fine by reference to those effects.
According to settled case-law, the gravity of infringements must be assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines; although no binding or exhaustive list of the criteria to be applied has been drawn up (see
Raiffeisen Zentralbank Österreich and Others
v
Commission
, paragraph 69 above, paragraph 238 and the case-law cited). The fact that, in the Guidelines, the Commission set out its approach to assessing the gravity of an infringement does not prevent it from assessing infringements as a whole by reference to all the relevant circumstances of the case, including factors that are not expressly mentioned in the Guidelines (
Raiffeisen Zentralbank Österreich and Others
v
Commission
, paragraph 69 above, paragraph 237).
Therefore, the fact that the Guidelines do not expressly provide for the analysis of the actual impact of the infringement on the market for the purpose of determining the gravity of the infringement, with a view to setting the basic amount of the fine, does not mean that the Commission was not at liberty also to consider that factor in this case.
Nevertheless, it is not sufficient for an applicant wishing to challenge the amount of the fine imposed on it for infringement of the competition rules merely to assert that the Commission ought to have included in its analysis, for the purpose of determining the gravity of the infringement, a factor the analysis of which is not provided for in the Guidelines. Such an applicant must also demonstrate in what way that additional analysis would have altered the Commission’s assessment of the gravity of the infringement and justified the imposition of a smaller fine.
It must be held that, in this case, the applicant has failed to demonstrate that latter point. Its brief and general reasoning on the matter (see paragraph 68 above) is nothing more than mere allegation. It must also be pointed out in this connection that the applicant has failed to set out in detail the arguments by which it supposedly demonstrated during the administrative procedure that customers on the markets concerned by the cartel had not suffered harm as a result of the cartel’s implementation, nor has it put before the court any documentary evidence of the matter.
Moreover, the applicant’s unsubstantiated assertions are not sufficient to rule out the possibility that the cartel at issue had a real impact on the market. Indeed, the fact that the profits of the cartel members’ customers reached record figures during the period covered by the cartel does not mean that the cartel cannot have affected the prices paid by those customers. On the contrary, the fact that those customers enjoyed great profitability during the cartel period, for separate reasons relating to the general economic climate, might have left them somewhat indifferent to the prices that they were paying for the reagents covered by the cartel and persuaded them not to use their purchasing power or the fact that they were not dependent on the cartel members to obtain better prices. Furthermore, as regards the applicant’s reference to frequent ‘cheating’, it must be borne in mind that, notwithstanding the fact that such cheating is in no way unusual in a cartel of this type, the applicant itself admits that the cartel at issue was, for the main part, implemented.
It should also be observed that, according to the case-law cited in paragraph 62 above, the effect of an anti-competitive practice is not a conclusive criterion for determining the proper amount of the fine. Factors relating to the intentional aspect may be more significant than those relating to the effects, particularly in the case of infringements which are intrinsically serious, such as those involving price-fixing and market-sharing, aspects which are present in this case.
It follows from all of the foregoing considerations that the arguments put forward by the applicant in the context of this part of the first plea are insufficient to prove that the Commission’s assessment of the gravity of the infringement at issue is in any way vitiated by error. Furthermore, for the same reasons, and in view also of the general remark made in paragraph 26 above, it must be held, with a view to the possible exercise by the General Court of its unlimited jurisdiction, that those arguments do not support the conclusion that the basic amount of the fine imposed on the applicant, as determined by the Commission in accordance with the method set out in the Guidelines, exceeds what is reasonable.
Consequently, the second part of the first plea must also be rejected.
The third part of the first plea, alleging incorrect assessment of the economic importance of the relevant market
The applicant refers to a decision of the Commission’s in another case involving infringement of the competition rules in which the Commission granted a reduction in the amount of the fine on the ground that the infringement related to a relatively small market. It argues, by reference to figures for the total value of transactions on the markets concerned by the infringement at issue and on other markets in the chemicals sector, that the markets involved in the present case are economically insignificant. It complains that the Commission unlawfully failed to take that aspect of the infringement into account and to reduce the fine accordingly.
It must be recalled in this connection that, in accordance with the method set out in the Guidelines for setting the basic amount of the fine (see paragraph 7 above), that amount is comprised of a percentage of the value of sales in relation to the infringement multiplied by the number of years of participation in the infringement, increased by an entry fee, which is also calculated as a percentage of the value of sales in question.
Therefore, as the Commission correctly points out, the method applied in this case in order to set the basic amount of the fine took into account, almost automatically, the relative economic importance of the markets concerned by the infringement by comparison with other markets, since that economic importance is inevitably determined by the volume of sales in relation to the infringement and, consequently, is reflected in a basic amount of the fine in proportion thereto. That being so, it appears that, in any case where that method is applied, it is in no way necessary to grant an additional reduction in the fine to take account of the allegedly lesser economic importance of the market concerned by the infringement, irrespective of whether it is justified or appropriate for that aspect to be taken into account.
The earlier decision to which the applicant refers is the Commission’s Decision of 9 December 2004 relating to a proceeding under Article 81 [EC] and Article 53 [EEA] (Case No C.37.533 — Choline Chloride) (
OJ 2005 L 190, p. 22
). Since that decision was adopted in 2004, the fines imposed in it were determined according to a different method from that set out in the Guidelines, which were adopted in 2006. Consequently, no useful guidance can be obtained from that decision in so far as concerns the lawfulness and appropriateness of the fine imposed on the applicant in this case. In any event, it must be borne in mind that, according to settled case-law, the Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition law matters (Case
C-167/04 P
JCB Service
v
Commission
[2006] ECR I-8935
, paragraph 205, and Joined Cases
C-125/07 P, C-133/07 P, C-135/07 P and C-137/07 P
Erste Group Bank and Others
v
Commission
[2009] ECR I-8681
, paragraph 233).
Moreover, it should be noted that, as the Commission correctly points out, the General Court, in its judgment of 8 July 2004 in
Mannesmannröhren-Werke
v
Commission
(Case T‑44/00, ECR II‑2223, paragraph 229), expressly rejected the argument that fines are to be set in direct proportion to the size of the market affected. The Court pointed out that size was only one among a number of factors and that, in accordance with the relevant provisions, as interpreted in the case-law, the fine imposed on an undertaking for infringement in a competition-related matter must be proportionate to the infringement, assessed in its entirety, account being taken, in particular, of its gravity, which must be assessed by reference to a large number of factors, as is pointed out in the case-law cited in paragraph 76 above.
In support of its claims, the applicant has also referred to the judgment in
Groupe Danone
v
Commission
, paragraph 70 above (paragraph 191). Admittedly, the Court observed in that judgment that the absolute value of the sales in question is also a relevant indication of the gravity of the infringement, since it is an accurate reflection of the economic importance of the transactions which the infringement seeks to remove from the normal interplay of competition. However, not only is that consideration entirely unhelpful to the applicant in so far as this part of the second plea is concerned, but it also confirms the appropriateness of the method set out in the Guidelines for setting the basic amount of the fine by reference to the value of sales in relation to the infringement.
In the light of all the foregoing considerations, it must be held that the Commission cannot be criticised for not reducing, in this case, the fine imposed on the applicant, which was calculated in accordance with the method set out in the Guidelines, in order to take account of the allegedly lesser economic importance of the markets covered by the infringement. Furthermore, in light of the unlimited jurisdiction which the Court enjoys with regard to fines, it must be held that there is nothing in the arguments put forward by the applicant in the context of this part of the first plea to support the conclusion that the amount of the fine, as fixed in the contested decision, exceeds what is appropriate. The third part of the second plea must, therefore, be rejected also.
The fourth part of the first plea, alleging incorrect assessment of the relative gravity of the applicant’s participation in the infringement
The applicant observes that, where an infringement has been committed by several undertakings, the relative gravity of the participation of each of them must be examined. It submits that, in the present case, a number of factors, of which the Commission was aware, demonstrate that its participation in the infringement was insignificant. First of all, the cartel was instigated and pursued at the initiative of another undertaking, namely Almamet. The applicant admits that it participated in the cartel, but maintains that it did not have a leading role. Secondly, it is the smallest member of the cartel in terms of turnover relating to the cartel taken into account in the determination of the amount of the fine. In addition, it was forced by the other members to obtain supplies of magnesium from another of the undertakings participating in the cartel, the Ecka group. The applicant was, therefore, merely an insignificant member of the cartel and one on which the other participants exerted economic pressure during cartel meetings. Thirdly, the applicant points out that, in terms of its overall size, it is a much smaller undertaking than the majority of the other cartel members. It submits that all of those factors ought to have been taken into account in the contested decision and the gravity of its participation in the infringement, and thus also the basic amount of the fine fixed in its case, reduced accordingly.
With regard to those arguments, it must be observed at the outset that, according to settled case-law, as the applicant points out, where an infringement has been committed by several undertakings, it is appropriate, when setting the amount of fines, to consider the relative gravity of the participation of each of them. That implies, in particular, that the roles played by each of them in the infringement for the duration of their participation in it should be established. That conclusion follows logically from the principle that penalties must be appropriate to the offender and the offence, so that an undertaking may be penalised only for acts imputed to it individually, a principle applying in any administrative procedure that may lead to the imposition of sanctions under the competition rules of EU law (see
Groupe Danone
v
Commission
, paragraph 70 above, paragraphs 277 and 278 and the case-law cited).
However, as the Commission correctly points out, it is precisely to reflect those principles that the Guidelines provide, in points 28 and 29, for the basic amount of a fine to be adjusted in accordance with certain aggravating and mitigating circumstances specific to each undertaking concerned. Moreover, there is nothing to warrant criticism in the method, chosen by the Commission in the Guidelines, consisting in the adoption, for the purpose of determining the basic amount of the fine, of the same percentage of sales in relation to the infringement with respect to all the participants in that infringement, and in the adjustment upwards or downwards, as may be appropriate, of the basic amount of the fine thus determined for each participant, on the basis of aggravating or mitigating circumstances specific to it, so as to reflect the relative gravity of its participation in the infringement (see, to that effect, Case
T-73/04
Carbone-Lorraine
v
Commission
[2008] ECR II-2661
, paragraph 100, and
Novácke chemické závody
v
Commission
, paragraph 74 above, paragraph 58).
It is therefore necessary to examine whether the circumstances which the applicant puts forward in its arguments in this part of the first plea justify the imposition on it of a smaller fine than that which was imposed on it in the contested decision. Clearly, it matters little whether any such reduction in the fine imposed on the applicant results from the reduction, in its case, of the basic amount of the fine or from the acknowledgement of mitigating circumstances in its favour.
First, as regards the allegation that Almamet had a leading role in the infringement, it must be observed that, in accordance with the last indent of point 28 of the Guidelines, the role of leader in, or instigator of the infringement is an aggravating circumstance which may provide a ground for increasing the basic amount of the fine. In other words, the applicant’s allegation, if well founded, would justify an increase in the basic amount of Almamet’s fine, rather than any reduction in the basic amount of its own fine. However, that consideration alone does not mean that the applicant’s complaint may be automatically rejected as ineffective. Indeed, depending on the particular circumstances of the case, the most appropriate means of remedying unequal treatment of a number of participants in an infringement owing to the fact that the gravity of the offending conduct of some participants has been underestimated by comparison with that of others may be to reduce the amount of the fine imposed on the latter (see, to that effect,
Novácke chemické závody
v
Commission
, paragraph 74 above, paragraphs 55 and 56 and the case-law cited).
Without it being necessary to examine the question whether the case-law cited in the preceding paragraph may be applied to the applicant’s case, its complaint must, in any event, be rejected as unfounded.
Indeed, in support of its allegation that Almamet was a leader of the cartel, the applicant merely states that almost all of the meetings of the cartel were organised by that undertaking. The applicant refers in this connection to recitals 64 and 67 to the contested decision, according to which the first two meetings took place at Almamet’s premises and were organised by one of its representatives.
First of all, it must be observed that, whilst it is admittedly apparent from those two recitals to the contested decision that the meetings of 22 April and 7 September 2004, which concerned calcium carbide powder, took place at Almamet’s premises, it is, on the other hand, incorrect to assert that all the meetings of the cartel were organised by that undertaking.
As recital 69 to the contested decision shows, at the meeting of 7 September 2004, the participants, including the applicant, decided to organise similar meetings on a regular basis and to take turns in organising them. The contested decision goes on to refer, in recitals 70 to 89, to nine other meetings relating to calcium carbide powder organised by various cartel members. Recital 78 to the contested decision states, without the applicant taking issue with that statement, that it was the applicant itself that organised the seventh meeting, held on 22 November 2005 in Vienna (Austria). Moreover, according to recital 90, at the eleventh and last meeting relating to the same product, it was decided that the applicant would be responsible for organising a further meeting (which was subsequently cancelled, as is noted in recital 91), which was to have taken place in Vienna on 9 January 2007. The applicant had already made a hotel reservation for that purpose.
With regard to calcium carbide granulates, the Commission notes in recital 98 to the contested decision that the first meeting took place on 7 April 2004 in a hotel in Slovenia, and that it was organised by TDR-Metalurgija d.d. The applicant and Novácke chemické závody a.s were the only other undertakings to participate in that meeting. In recital 99, the Commission refers to two other meetings in Bratislava (Slovakia) between the same three producers of calcium carbide granulates. It adds, however, that issues relating to that product were also discussed either in meetings relating to calcium carbide powder, or during special meetings that immediately followed on from those meetings (see recitals 101 and 108 to the contested decision).
As regards the meetings relating to the part of the cartel concerning magnesium, in which the applicant did not participate, the Commission states, in recital 115 to the contested decision, that the three undertakings which did attend those meetings, which included Almamet, took turns in organising them and meeting the related expenses.
In so far as concerns the argument that Almamet was the leader in, or instigator of the infringement since it organised the first two meetings, it must be observed that the Court has already had occasion to consider and reject a similar argument in its judgment in
Novácke chemické závody
v
Commission
, paragraph 74 above (paragraphs 77 to 79), an action brought against the contested decision by another participant in the same cartel.
The Court held that it was evident from recital 54 to the contested decision that, according to the Commission, the agreement relating to calcium carbide powder arose from the negative trend in the price of that product since the beginning of the 21st century, in conjunction with an increase in the cost of production and a fall in demand. According to recital 104 to the contested decision, matters were similar on the market for calcium carbide granulates. That recital refers to an ‘employee of Akzo Nobel’ who is said to have claimed that all suppliers of the product in question ‘were in apparent need of price increases’. As regards magnesium, also intended for the steel industry and substitutable for calcium carbide powder, the Commission acknowledges in recital 113 that the demand for that product was growing, but adds that ‘the suppliers also felt the increased market power of their customers’ and were, in addition, under growing pressure following the arrival on the market of new Chinese competitors.
The Court held that, against that background, it mattered little who had taken the initiative to organise the initial meeting, since that initiative merely reflected the shared sentiments of a number of producers of the product concerned. The Court therefore dismissed the argument that the Commission had erred in failing to find that there was an aggravating circumstance in the case of certain other participants, including Almamet, for the reason that they were the leaders in, or instigators of the infringement.
Those findings, which have in no way been called into question by the applicant’s arguments, enable this Court to dismiss as unfounded the corresponding complaint put forward by the applicant in the present case.
Secondly, the fact, alleged by the applicant, that it is the smallest member of the cartel in terms of turnover in the products covered by the cartel is sufficiently taken into consideration in the method for calculating the basic amount of the fine adopted in the Guidelines, which consists in setting that basic amount by reference to the value of sales in relation to the infringement. Clearly, a lower turnover figure in the market in question will result in the fixing of a lower basic amount of the fine.
As regards the argument that the applicant was an ‘insignificant member’ of the cartel, it must be recalled that, while the ‘exclusively passive or “follow-my-leader” role’ of an undertaking in an infringement was expressly referred to as an attenuating circumstance in the first indent of Section 3 of the 1998 Guidelines, it does not appear in the non-exhaustive list of mitigating circumstances set out in point 29 of the Guidelines.
In any event, the applicant does not fulfil the criteria for the recognition of such a mitigating circumstance in its favour, even if that were possible under the Guidelines. As the General Court held in its judgment of 9 July 2003 in
Cheil Jedang
v
Commission
(Case T‑220/00, ECR II‑2473, paragraphs 167 and 168), a passive or ‘follow-my-leader’ role in an infringement implies that the undertaking will adopt a ‘low profile’, that is to say, not actively participate in the creation of any anti-competitive agreements. The factors which may indicate that an undertaking has played a passive role in a cartel include participation in cartel meetings that is significantly more sporadic than that of the ordinary members of the cartel, entry into the market affected by the infringement at a late stage, regardless of the length of involvement in the infringement, or where a representative of another undertaking which has participated in the infringement makes an express declaration to that effect.
In the present case, the applicant participated in all the meetings of the cartel relating to the two products which it sold, namely calcium carbide powder and calcium carbide granulates (see, respectively, recitals 64 to 88, 98 and 99 to the contested decision). It even organised one meeting and accepted responsibility for organising another (see paragraph 99 above). Moreover, it is apparent from the contested decision that its contribution to the meetings at which it was present was comparable to that of the other participants. The abovementioned recitals to the contested decision in fact state that the participants at the various meetings provided information about their sales volumes and that the market sharing table was subsequently updated. In addition, the prices to be applied were discussed and, from time to time, price increases were agreed (see, for example, recitals 67 and 68 to the contested decision). Furthermore, it is apparent from recital 83 that one of the cartel members that was unable to attend the meeting of 25 April 2006 reported its sales volumes to the applicant ahead of the meeting so that the figures could be conveyed to the cartel members at the meeting. There is, therefore, nothing to indicate that the applicant’s conduct was passive or that its role in the infringement was ‘insignificant’ or, more generally, different from that of the other cartel members.
Lastly, as regards the applicant’s assertion that it was ‘forced’ by the other cartel members to obtain supplies of magnesium from another of the participants in the infringement, leaving aside the fact that the applicant fails to explain how and by what means the other cartel members were able to constrain it in that way, that circumstance, even supposing it to be true, does not diminish the relative gravity of its participation in the infringement. Indeed, as the Commission correctly points out, the Court has already held that an undertaking which is pressured into adhering to a cartel may inform the competent authorities rather than support the cartel, and consequently cannot rely on that pressure in order to obtain a reduction in the fine imposed on it (Joined Cases
T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01
Tokai Carbon and Others
v
Commission
, [2004] ECR II-1181
, paragraph 344).
Thirdly, the applicant’s argument that it is, in overall size, a much smaller undertaking than most of the other cartel members cannot succeed either. First of all, it must be recalled that point 30 of the Guidelines states that the Commission will pay particular attention to the need to ensure that fines have a sufficiently deterrent effect and that, to that end, it may increase the fine to be imposed on undertakings which have a particularly large turnover beyond the sales of goods or services to which the infringement relates. In addition, according to point 35 of the Guidelines, in exceptional cases, the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context. Thus, the Guidelines provide that, under certain specific conditions, account may be taken, when setting a fine, of the significant overall size of an undertaking that has participated in an infringement of the rules relating to competition or, conversely, of its inability to pay.
Beyond those two cases, an undertaking cannot claim a reduction in the fine imposed on it solely because its overall size is much smaller than that of other participants in the same infringement. Indeed, it its judgment in
Dansk Rørindustri and Others
v
Commission
(Joined Cases
C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P [2005] ECR I-5425
, paragraph 312), the Court of Justice held that the Commission was not required, when assessing fines in accordance with the gravity and duration of the infringement in question, to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover.
Since the applicant has done no more than refer to its allegedly smaller overall size than that of other participants in the same cartel, with a view to obtaining a reduction in the basic amount of its fine, that latter argument, and consequently the fourth part of the first plea in its entirety, must be rejected. Furthermore, for the same reasons, and in view also of the general remark made in paragraph 26 above, it must be held, with a view to the possible exercise by the General Court of its unlimited jurisdiction, that those arguments do not support the conclusion that the basic amount of the fine imposed on the applicant, as determined by the Commission in accordance with the method set out in the Guidelines, exceeds what is reasonable.
The fifth part of the first plea, alleging failure on the Commission’s part to take into consideration the fact that the applicant participated only in some parts of the infringement
The applicant points out that, in the contested decision, the Commission found that the agreements and concerted practices in question constituted a single and continuous infringement. However, its participation in the infringement extended to only two of the three products concerned, namely calcium carbide powder and calcium carbide granulates, as the Commission itself acknowledged. The applicant submits that the case-law requires that account be taken of such partial participation in the assessment of the gravity of the infringement and the determination of the fine, which the Commission failed to do in this case. According to the applicant, the Commission ought to have reduced the basic amount of the fine in its case to take account of the fact that its participation in the infringement extended to only two of the three products concerned. Moreover, setting the same basic amount for all the undertakings which participated in the infringement is unlawful, since the basic amount of the fine to be imposed on each participant should reflect the differences in the extent of the participation of each of them in the infringement and, consequently, in the degree of gravity of the infringement that may be imputed to them.
Whilst it is true that the fact that an undertaking has not taken part in all aspects of an anti-competitive scheme is not material to the establishment of the existence of an infringement on its part, that factor must, on the other hand, be taken into consideration when the gravity of the infringement is assessed and if and when it comes to determining the fine (Joined Cases
C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P,
Aalborg Portland and Others
v
Commission
[2004] ECR I-123
, paragraph 86).
However, it is clear that the method for determining the fine set out in the Guidelines and summarised in paragraph 7 above meets the requirements of that case-law fully. Indeed, as the Commission pointed out, in substance, in recital 296 to the contested decision, the basic amount of the fine is determined on the basis of the sales of the undertaking concerned in relation to the infringement, which signifies that only sales of the products in relation to which the undertaking in question took part in the infringement are taken into consideration. In the specific case of the applicant, only its sales of calcium carbide powder and calcium carbide granulates were taken into consideration, as is confirmed by recital 288 to the contested decision.
Moreover, it is incorrect to assert, as the applicant does, that the same basic amount was set for all the undertakings which participated in the infringement. That amount is determined, for each undertaking, on the basis of the sales which it itself has made in relation to the infringement. Consequently, a different basic amount of the fine is determined for each undertaking participating in the infringement. Furthermore, recital 308 to the contested decision, which contains a table setting out the basic amounts of the fines determined for each of the undertakings that participated in the infringement, confirms that this was done in the present case.
The fifth part of the first plea is therefore unfounded and must be rejected. Furthermore, and in view also of the general remark made in paragraph 26 above, it must be held, with a view to the possible exercise by the General Court of its unlimited jurisdiction, that the applicant’s arguments do not support the conclusion that the basic amount of the fine imposed on the applicant, as determined by the Commission in accordance with the method set out in the Guidelines, exceeds what is reasonable.
The sixth part of the first plea, alleging an error of law and a breach of the duty to state reasons in connection with the determination of the entry fee
First of all, the applicant argues a breach of the duty to state reasons in that the Commission failed to give sufficient reasons for setting the percentage to be applied in determining the entry fee at 17%. It submits that the Commission breached its duty to state reasons, as defined in the case-law, inasmuch as it used stereotype wording and failed to comment on the decisive factor in setting the entry fee, that is to say, the deterrent effect referred to in point 25 of the Guidelines, or on the reasons which led it to set the percentage needed to achieve the requisite deterrent effect at 17%.
The scope of the duty to state reasons arising under Article 253 EC was outlined in paragraphs 28 to 30 above. As regards, in particular, the scope of the duty to state reasons for the calculation of a fine imposed for infringement of the competition rules, it is settled case-law that the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration, as well as the factors which it took into consideration for that purpose, under the directions contained in its own guidelines (Case
T-48/02
Brouwerij Haacht
v
Commission
[2005] ECR II-5259
, paragraph 46 and the case-law cited).
In the present case, the Commission set out, in recitals 291 et seq. to the contested decision, beneath the heading ‘Determination of the basic amount of the fine’, the factors which it took into account in setting the basic amount of the fine for each of the undertakings participating in the infringement, including the entry fee. In particular, in recitals 292 to 296 of the preamble to the contested decision, it analysed the gravity of the infringement, stating, in particular, (in recital 294) that an infringement such as that at issue in the present case ‘is by its very nature among the most harmful restrictions of competition’. In recitals 297 to 298 of the preamble to the contested decision, it mentioned the combined market share of the undertakings participating in the infringement (see also paragraphs 28 to 34 above). Finally, in recitals 299 and 300 it referred, respectively, to the geographic scope of the cartel, as mentioned in paragraph 1 above, and to the fact that the offending agreements ‘were in general implemented and monitored’.
Having set out those considerations, the Commission gave them due effect in fixing, in recital 301 to the contested decision, the percentage to be applied in order to determine the basic amount of the fine. In so far as concerns the percentage to be applied in determining the entry fee, the Commission stated, in recital 306 to the contested decision, the following :
‘Given the specific circumstances of this case, taking into account the criteria discussed above relating to the nature of the infringement and the geographic scope of the infringement, the percentage to be applied for the additional amount should be 17%.’
It follows that, contrary to the applicant’s assertion, the Commission did provide in the contested decision a sufficient statement of reasons to justify its choice of 17% as the percentage to be applied in order to determine the entry fee. It did not restrict itself to ‘stereotype wording’, but referred back to the considerations which it had already set out in connection with the gravity of the infringement (in recitals 292 to 296), according to which the infringement at issue was, by its very nature, among the most serious, as well as to its considerations in connection with the geographic scope of the infringement. The criteria which the Commission applied were, therefore, stated with sufficient precision and the applicant’s complaint alleging breach of the duty to state reasons must accordingly be rejected.
Secondly, the applicant argues that, had the Commission assessed the matter correctly, it would have taken into account the arguments which it put forward during the administrative procedure and, as a result, would have decided on a lower entry fee, or might even have decided not to include any entry fee at all in the basic amount of the fine which it was to impose on the applicant. The applicant refers, in this connection, to the launch of an internal training programme on the infringement of competition law and to its own critical situation during the period of the infringement. It also emphasises that it was the only undertaking participating in the infringement to express regret about its involvement.
With regard to those arguments, it must be pointed out, first of all, that it is explicitly stated in point 25 of the Guidelines that the Commission ‘will include in the basic amount’ an entry fee. In other words, contrary to what the applicant implies, the Commission was not required to decide whether or not to include the entry fee in the basic amount of the fine which it was to impose on the applicant: the method set out in the Guidelines, to which the Commission must adhere, provides for the inclusion of such a sum in the basic amount.
Next, it is clear from recitals 324 and 329 to the contested decision respectively that the Commission took account of the applicant’s assertions regarding the introduction of an internal training programme and its critical economic situation during the period of the infringement when considering the possible mitigating circumstances that might be taken into consideration for each member of the cartel.
It must be borne in mind in this connection that the entry fee referred to in point 25 of the Guidelines is part of the basic amount of the fine which, as is clear from point 19 of the Guidelines, must reflect the gravity of the infringement and not the relative gravity of the participation in the infringement of each of the undertakings concerned. According to the case-law, the latter issue must be examined in the context of the possible application of aggravating or mitigating circumstances. Accordingly, the Commission may determine the percentage of the value of sales referred to in point 25 of the Guidelines, as well as that referred to in point 21 of the Guidelines, at the same level for all cartel participants (see
Novácke chemické závody
v
Commission
, paragraph 74 above, paragraph 58 and the case-law cited).
Consequently, it cannot be claimed that the Commission erred in law or infringed its own Guidelines in that it did not choose, with respect to the applicant, a percentage of the value of sales, for the purpose of determining the entry fee, below 17%, in view of the particular circumstances put forward by the applicant, as summarised in paragraph 124 above. Those circumstances had to be examined in the context of the consideration of possible mitigating circumstances in the applicant’s favour. As was pointed out in paragraph 126 above, two of those mitigating circumstances are mentioned in that context in the contested decision.
It is, admittedly, true that the Commission did not recognise any mitigating circumstances in the applicant’s favour. However, the question whether that assessment was incorrect, inasmuch as the abovementioned allegations of the applicant’s justified the recognition of such mitigating circumstances, must be analysed in the context of the second plea, by which the applicant claims that the Commission erred in law for that precise reason. Moreover, the arguments which the applicant puts forward in the context of that plea reiterate and expand on these allegations.
Thirdly, the applicant complains that the Commission infringed the principles of equal treatment and proportionality in that it set ‘the same [entry fee] for all the undertakings which participated in the infringement’. It argues, first, that the need for deterrence is greater with regard to undertakings that have already participated in cartels on a number of occasions in the past, which is true of some of the members of the cartel at issue, namely Akzo Nobel and Degussa AG. For its part, it has never before been the addressee of a Commission decision relating to infringement of Article 81 EC. The principles of equal treatment and proportionality ought, for that reason in particular, to have led the Commission to set a much lower entry fee in its case that it did for Akzo Nobel and Degussa. Secondly, the applicant maintains that, in determining the entry fee, account must also be taken of the relative sizes of the various undertakings involved in the infringement. In particular, the case-law recognises the relevance of the overall turnover of undertakings in the determination of the financial capacity of members of a cartel. The applicant’s size and overall turnover are a mere fraction of those of the other undertakings which participated in the cartel, Akzo Nobel and Degussa in particular. The Commission failed to have regard to that important difference when it determined the entry fee. Had it assessed the matter correctly, it would have set a percentage in the applicant’s case far below 17%.
Those arguments cannot be upheld either. First of all it must be emphasised that, contrary to the applicant’s assertion, the Commission did not determine the same entry fee for each cartel member. Admittedly, it did choose the same percentage (17%) to be applied in calculating the entry fee for all the members of the cartel. However, in so far as the so-called ‘entry fee’ is a percentage of the value of each cartel participant’s sales in relation to the infringement, it will be different for each participant, depending on the differences in the value of the participants’ sales (
Novácke chemické závody
v
Commission
, paragraph 74 above, paragraph 58).
Next, as regards the fact that Akzo Nobel and Degussa are repeat offenders, it must be observed that, in accordance with the considerations set out in paragraph 127 above, aggravating circumstances such as repeated infringement, pertaining to one or other participant in an infringement, must be taken into account at a later stage of the determination of the fine, once the basic amount, of which the entry fee forms part, has been fixed. Indeed, as was pointed out in paragraph 7 above, the Commission’s Guidelines provide for the adjustment upwards of the basic amount of the fine to take account of aggravating circumstances. Repeated infringement is one of the aggravating circumstances mentioned, by way of example, in the first indent of point 28 of those Guidelines.
Indeed, in the present case, as is clear from recitals 309 and 310 to the contested decision, the Commission found that aggravating circumstance to be established in the case of Akzo Nobel and Degussa and increased the basic amount of their fines by 100% and 50% respectively, on account of it.
The applicant’s argument that the percentage to be applied in calculating the entry fee should be lower in its case than for the other undertakings participating in the infringement, and in particular the two undertakings guilty of repeated infringement mentioned above, cannot therefore be upheld.
Finally, for the reasons set out in paragraphs 111 to 113 above, it must be concluded that the alleged differences in size and overall turnover between the applicant and other cartel members, even if they were established, equally would not render it necessary to choose, in the applicant’s case, a lower percentage for the purpose determining the entry fee.
In the light of all the foregoing considerations, the sixth part of the first plea must be rejected. Moreover, in view also of the general remark made in paragraph 26 above, it must be held, with a view to the possible exercise by the General Court of its unlimited jurisdiction, that the applicant’s arguments do not support the conclusion that the basic amount of the fine imposed on it, as determined by the Commission in accordance with the method set out in the Guidelines, exceeds what is reasonable. The first plea must therefore be dismissed in its entirety.
The second plea, alleging unlawful failure on the Commission’s part to take into consideration mitigating circumstances in the applicant’s favour
The applicant argues that the contested decision is vitiated by unlawfulness in that the Commission failed to take into consideration significant mitigating circumstances in its favour. This plea falls into five parts, alleging, first, the non-implementation of the agreements at issue and the fact that the applicant derived no benefit and customers suffered no harm, secondly, failure to take the applicant’s effective cooperation into account, thirdly, failure to take the applicant’s admission and remorse into account, fourthly, failure to take the compliance measures introduced by the applicant into account and, fifthly, failure to take account of the critical situation of the calcium carbide production sector and of the applicant itself.
Preliminary remarks
As was pointed out in paragraph 92 above, where an infringement has been committed by several undertakings, it is appropriate, when setting the amount of the fines, to consider the relative gravity of the participation of each of them.
In accordance with that consideration, the Guidelines provide, in point 29 thereof, for the basic amount of the fine to be adjusted on the basis of certain mitigating circumstances specific to each undertaking concerned. Point 29 lays down, in particular, a non-exhaustive list of mitigating circumstances that may be taken into account. However, it is permissible for other circumstances not included in the indicative list set out in point 29 of the Guidelines to be taken into consideration, provided that they are capable of diminishing the relative gravity of the participation in the infringement of the person or entity concerned (see, to that effect, judgment of 12 December 2012 in Case T‑400/09
Ecka Granulate and non ferrum Metallpulver
v
Commission
, not published in the ECR, paragraph 61).
Those preliminary remarks must be borne in mind during the analysis of the various parts of the present plea.
The first part of the second plea, alleging non-implementation of the agreements at issue, that the applicant derived no benefit, and that customers suffered no harm
In the context of the first part of the second plea the applicant repeats, in substance, the arguments summarised in paragraphs 66 to 68 above, which, it maintains, demonstrate that the agreements at issue were implemented only partially and that the infringement had no effect on the market, caused no harm to customers and did not enable the cartel members to benefit unduly from it. It submits that the Commission should have taken those alleged circumstances into consideration as mitigating circumstances for the purpose of reducing the fine.
It must be recalled in this connection, first of all, that in recitals 318 and 319 to the contested decision the Commission stated the following:
‘(318)
As mentioned in recital (193), implementation of agreements between calcium carbide and magnesium suppliers took place. Throughout the duration of the cartel, the parties exchanged sensitive commercial information, allocated customers, agreed to implement price increases agreed upon and discussed the implementation of the quota agreements by updating their market sharing tables. The agreements did not exclude all further competition between the participants, [but] the existence of rivalry and cheating does not in any case alter the conclusion that the agreements were implemented and did restrict competition among the suppliers of calcium carbide and magnesium granulates.
(319)
Furthermore, none of the participants have claimed that they avoided all implementation in practice of the unlawful agreements. In particular, no participant has provided evidence that it avoided implementing the agreements by adopting competitive conduct or, at the very least, that it clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation. ... Cheating never led to a denial of the arrangements made, but always started by taking the arrangements agreed into account. It was heavily discussed in the cartel meetings and compensated if needed. ...’
It is thus clear that the Commission concluded that the agreements at issue had indeed been implemented. The Commission was entitled to take the view, in its assessment of possible mitigating circumstances, in substance, that the fact that the agreements did not entirely exclude competition among the cartel members and that rivalry and cheating continued among them did not alter the fact that the infringement had been committed. Indeed, as is made clear in the case-law to which the Commission itself referred, in effect, in recital 318 to the contested decision, an undertaking which, despite colluding with its competitors, follows a more or less independent policy on the market may simply be trying to exploit the cartel for its own benefit, and it would be too easy for undertakings to reduce the risk of being required to pay a heavy fine if they were able to take advantage of an unlawful cartel and then benefit from a reduction in the fine on the ground that they had played only a limited role in implementing the infringement, when their attitude encouraged other undertakings to act in a way that was more harmful to competition (see
Raiffeisen Zentralbank Österreich and Others
v
Commission
, paragraph 69 above, paragraph 491 and the case-law cited). As the Court confirmed in its judgment in
KME Germany and Others
v
Commission
(paragraph 58 above, paragraphs 94 to 96), a strict interpretation, such as that, of the conditions that must be fulfilled in order to benefit from the mitigating circumstance of non-implementation of the offending agreements in no way constitutes an error of law.
As is noted, in substance, in recital 319 to the contested decision, a mitigating circumstance could only be recognised in the applicant’s favour or in favour of another cartel member if, as is contemplated in the third indent of point 29 of the Guidelines, the undertaking in question had provided evidence that its involvement in the infringement was substantially limited and thus demonstrated that, during the period in which it was party to the offending agreements, it actually avoided implementing them by adopting competitive conduct on the market (see, to that effect,
Ecka Granulate and non ferrum Metallpulver
v
Commission
, paragraph 139 above, paragraph 86 and the case-law cited). However, it must be observed that the applicant has in no way provided such evidence.
Furthermore, as regards the applicant’s allegation that it derived no benefit from its participation in the infringement, that fact, even were it to be established, cannot constitute a mitigating circumstance either. It is clear from settled case-law, also referred to in recital 320 to the contested decision, that the fact that an undertaking has not benefited from an infringement cannot preclude the imposition of a fine, since otherwise the fine would cease to have a deterrent effect. It follows that the Commission is not required, in order to set fines, to take into consideration any lack of benefit from the infringement at issue (see Case
T-66/01
Imperial Chemical Industries
v
Commission
[2010] ECR II-2631
, paragraph 443 and the case-law cited).
The applicant also submits that it would have been appropriate to take into consideration as a mitigating circumstance the fact that the infringement had no effect on the market. However, it is sufficient in this regard to refer to the observations made in paragraphs 78 to 80 above to the effect that the applicant’s allegation that the infringement at issue had no effect on the market is wholly unsupported by evidence. In any event, it is clear from the consideration set out in paragraph 81 above that, even if that allegation were proven, that would not, given the intrinsically grave nature of the infringement, have justified the recognition as a mitigating circumstance of the alleged fact that the infringement had no effect on the market.
Consequently, the first part of the second plea must be rejected.
The second part of the second plea, alleging failure to take the applicant’s effective cooperation into account
The applicant complains that the Commission unlawfully failed to take into consideration, as a mitigating circumstance justifying a reduction in its fine, the effective cooperation which it provided. This part of the second plea will be examined together with the third plea, with which it is closely connected; indeed, the applicant itself refers to the arguments which it puts forward in support of that third plea.
The third part of the second plea, alleging failure to take the applicant’s admission and remorse into account
The applicant argues that, according to case-law, the Commission may grant a reduction in the fine where an undertaking admits its involvement in an infringement. It points out that it immediately admitted the whole of the infringement which it was alleged to have committed and submits that that should have been taken into account as a mitigating circumstance in the determination of the fine which was to be imposed on it. It adds that it is the only cartel member to have expressed remorse for committing the infringement. It refers to the statements made to that effect by its owner during the hearing in the administrative procedure and considers that that also deserved recognition as a mitigating circumstance in its favour.
In this connection, it must be pointed out that the mere fact that the undertaking in question does not dispute the facts is not one of the mitigating circumstances mentioned in the illustrative list set out in point 29 of the Guidelines. It is true that the Commission Notice on the non-imposition or reduction of fines in cartel cases (
OJ 1996 C 207, p. 4
) provided, under point 2 of section D thereof, for a reduction in the fine on account of cooperation for undertakings which, after receiving a statement of objections, inform the Commission that they do not substantially contest the facts on which the Commission has based its accusations. The case-law to which the applicant refers relates to cases in which that notice was applicable. However, that notice does not apply to the facts of the present case, having been replaced by the 2002 Leniency Notice, which made no provision for a reduction on similar grounds.
It must be recalled in this connection that, as was pointed out in paragraph 74 above, while the Commission may not depart from rules which it has imposed on itself without giving reasons for so doing which are consistent with the principle of equal treatment, it is nevertheless free to modify those rules or to replace them and, in a case that falls within the scope of the new rules, the Commission cannot be criticised for having failed to take into account a mitigating circumstance that is not provided for by those new rules solely on the ground that it was provided for under the earlier rules.
It follows that the mere fact that, in earlier decisions adopted in accordance with rules and practices that have since been modified, the Commission took into account, in order to reduce the amount of the fine imposed on an undertaking that had participated in a cartel, the fact that that undertaking did not contest the facts alleged against it does not mean that the Commission was required in the present case to grant the applicant a reduction in its fine for the same reason (see, to that effect,
Ecka Granulate and non ferrum Metallpulver
v
Commission
, paragraph 139 above, paragraph 60).
Consequently, it is necessary, in order to analyse this plea, to consider whether the fact that the applicant did not dispute the facts alleged against it and expressed its remorse is capable of diminishing the relative gravity of its participation in the cartel and justifying a reduction in the amount of the fine imposed on it (see, to that effect,
Ecka Granulate and non ferrum Metallpulver
v
Commission
, paragraph 139 above, paragraph 61).
In this connection, it must be borne in mind that, according to settled case-law, a reduction in the fine on the ground of cooperation during the administrative procedure is justified only if the conduct of the undertaking in question enabled the Commission to establish the existence of an infringement more easily and, where relevant, to bring it to an end (see
Ecka Granulate and non ferrum Metallpulver
v
Commission
, paragraph 139 above, paragraph 62 and the case-law cited).
In the present case, it must be recalled that the Commission accused the applicant of participating in the parts of the cartel relating to calcium carbide powder and calcium carbide granulates. In so far as concerns the first of those two parts, it should be recalled that the existence of the cartel in question was brought to the Commission’s attention by Akzo Nobel, as is recorded in recital 335 to the contested decision. Moreover, it is apparent from footnote 143, referred to in recital 64, and from recital 348, that the Commission seised documentary evidence of that part of the cartel and, in particular, of the first meeting relating to calcium carbide powder, held on 22 April 2004, at the premises of another cartel member, namely TDR Metalurgija.
In view of those facts, it must be held that the Commission was in possession of a considerable body of evidence of the facts alleged against the applicant in so far as concerns its involvement in the part of the cartel relating to calcium carbide powder. That being so, and in the absence of any argument from the applicant capable of proving the contrary, it must be concluded that the Commission was, in any event, in a position to prove the facts alleged against the applicant in connection with that part of the cartel. Consequently, the fact that the applicant refrained from disputing those facts cannot be regarded as effective cooperation during the administrative procedure, within the meaning of the fourth indent of point 29 of the Guidelines and the case-law cited in paragraph 154 above, and cannot, therefore, justify a reduction in the fine imposed on it.
As regards the part of the cartel relating to calcium carbide granulates, it must be recalled that, as is apparent from recitals 342 to 346 of the preamble to the contested decision, it was the applicant that, in the context of an application under the 2002 Leniency Notice, provided the Commission with evidence which contributed to establishing that part of the infringement. For that reason the applicant was granted a reduction in its fine of 35%, pursuant to the 2002 Leniency Notice (recital 346 to the contested decision).
Independently of the question whether that rate of reduction was appropriate, a point which the applicant disputes by its third plea, which will be examined subsequently, it cannot be accepted that the Commission was under any obligation to grant the applicant a separate reduction in its fine on account of the fact that it did not dispute its participation in a part of the cartel which it itself helped the Commission to prove.
Lastly, as regards the fact that the applicant expressed remorse for its participation in the cartel, that admission, laudable as it may be, does not alter the reality of the infringement found and therefore cannot constitute a mitigating circumstance justifying a reduction in the fine imposed (see, by analogy,
Ecka Granulate and non ferrum Metallpulver
v
Commission
, paragraph 139 above, paragraph 79).
It follows from all the foregoing considerations that the third part of the second plea is unfounded and must be rejected.
The fourth part of the second plea, alleging failure to take the compliance measures introduced by the applicant into account
The applicant argues that both the Commission, in its decision concerning another infringement, and the General Court, in its judgment of 14 July 1994 in
Parker Pen
v
Commission
(Case T‑77/92, ECR II‑549, paragraph 93), regarded as a mitigating circumstance justifying a reduction in the fine the introduction, by an undertaking implicated in a procedure relating to infringement of the competition rules of EU law, of compliance measures. Since it too introduced such measures, after the commencement of the procedure leading to the adoption of the contested decision, the applicant considers that it should have benefited from a reduction in its fine on that same ground.
It must be recalled in this connection that it is clear from settled case-law that, whilst it is important that an undertaking should take steps to prevent fresh infringements of EU competition law from being committed by members of its staff in the future, that does not alter the reality of the infringement found. Thus, the mere fact that, in certain of its previous decisions, the Commission took the implementation of a compliance programme into consideration as a mitigating factor does not mean that it is obliged to act in the same manner in any given case (see Case
T-224/00
Archer Daniels Midland and Archer Daniels Midland Ingredients
v
Commission
[2003] ECR II-2597
, paragraph 280 and the case-law cited). Moreover, that point was made by the Commission, in recital 325 to the contested decision, in support of its rejection of the applicant’s claim.
The judgment in
Parker Pen
v
Commission
(paragraph 161 above), on which the applicant relies to support its argument, cannot lead to any different conclusion.
First of all, in paragraph 93 of that judgment, the General Court did no more than observe that the Commission had taken into account in its decision certain mitigating circumstances in favour of the applicant in that case, including, in particular, the fact that it had implemented a compliance programme to ensure that its distributors and subsidiaries complied with the competition rules. The General Court was not required to rule, and gave no ruling on the question whether the Commission was obliged to take that fact into consideration as a mitigating circumstance. On the contrary, the General Court held that, despite the recognition of mitigating circumstances, the fine imposed by the Commission on the applicant in that case was not appropriate, having regard in particular to the low turnover to which the infringement related and, in the exercise of its unlimited jurisdiction, it reduced the fine (
Parker Pen
v
Commission
, paragraph 161 above, paragraph 95).
Secondly, in recital 24 to Decision 92/426/EEC of 15 July 1992 relating to a proceeding under Article [81 EC] (Case IV/32.725 — Viho/Parker Pen) (
OJ 1992 L 233, p. 27
), the decision to which the applicant in the present case refers, the Commission stated that, although compliance measures had been in place during the period of the infringement, they had not prevented the commission of the infringement. However, after it had discovered the infringement, the applicant in that case had, at the Commission’s express request, brought the infringement to an end. In other words, in that case it was not only the adoption during the same period as that of the infringement of measures to ensure compliance with the competition rules that was taken into consideration as a mitigating circumstance, but also the conduct of the undertaking in question following the Commission’s intervention.
Moreover, even if, as the applicant argues, the Commission did in various earlier decisions take into consideration as a mitigating circumstance the fact that an infringement had been committed despite the implementation by the undertaking in question of compliance measures designed to prevent such infringements, it is clear from the case-law cited in paragraph 162 above that this argument cannot succeed either. The Commission is not required to take a circumstance such as that into account as a mitigating factor, provided that it adheres to the principle of equality of treatment, which requires that it should not assess the matter differently for any undertaking addressed by the same decision (
Archer Daniels Midland and Archer Daniels Midland Ingredients
v
Commission
, paragraph 162 above, paragraph 281). That principle was not breached in the present case in that none of the cartel members benefited from the recognition of this particular mitigating circumstance.
It should also be noted that the applicant maintains that the case-law referred to in paragraph 162 above is too restrictive, inasmuch as account must be taken of specific preventive measures in the determination of the fine, of the disadvantage for undertakings requesting leniency from the Commission resulting from any failure to take compliance programmes into account, and of the condition that infringements of the competition rules must have been committed at least negligently. It considers that the fact that it introduced a rigorous programme of compliance should have been taken into consideration as a mitigating circumstance.
Those arguments are not convincing.
It is clear from the Guidelines that the Commission is aware of the need to ensure not only that its actions in relation to infringements of competition law have a general deterrent effect, but also, in particular, that the fine it imposes on an undertaking that has committed such an infringement has a specific deterrent effect. This is confirmed by point 4 of the Guidelines, which states, inter alia, that ‘[f]ines should have a sufficiently deterrent effect … in order to sanction the undertakings concerned (specific deterrence)’. However, the mere adoption by an undertaking of a programme of compliance with the competition rules cannot constitute a valid and definite guarantee of future and continuing compliance by that undertaking with those rules, and consequently the mere existence of such a programme cannot compel the Commission to reduce the fine on the ground that the objective of prevention pursued by the fine has already been at least partly achieved (
Degussa
v
Commission
, paragraph 66 above, paragraph 361). Moreover, the applicant has put forward no specific argument to show that the requisite specific deterrent effect could be achieved with the imposition of a smaller fine in cases where the undertaking in question has introduced compliance measures. Whilst it is in the interests of undertakings to introduce such measures, in an endeavour to prevent future infringements of the competition rules and thus avoid the sanctions warranted by those infringements, neither the Commission nor the General Court in the exercise of its unlimited jurisdiction with regard to fines may be compelled automatically and systematically to reward the introduction of such measures by reducing the amount of the fine.
Similarly, the Court must dismiss the applicant’s argument concerning the alleged disadvantage for undertakings requesting leniency from the Commission resulting from any failure to take that mitigating circumstance into consideration. At the hearing, the applicant stated that this disadvantage consisted in the fact that, without a compliance programme, it would be more difficult for undertakings to discover by means of internal investigation the involvement of certain members of their staff in infringements of the competition rules, with a view to promptly informing the Commission thereof and requesting the grant of leniency for so doing. Suffice it to observe that that argument in no way proves that it is necessary automatically to reward the introduction of compliance measures. The various rewards provided for by the Commission in its various leniency notices, including the 2002 Leniency Notice, applicable to the present case, provide ample incentive in this regard.
Lastly, as regards the argument that infringements of the competition rules must have been committed at least negligently, suffice it to recall that, according to settled case-law, it is not necessary for an undertaking to have been aware that it was infringing the competition rules for an infringement of those rules to be regarded as having been committed intentionally rather than negligently; it is sufficient that it could not have been unaware that its conduct had as its object the restriction of competition in the common market (see Case
246/86
Belasco and Others
v
Commission
[1989] ECR 2117
, paragraph 41 and the case-law cited, and
Raiffeisen Zentralbank Österreich and Others
v
Commission
, paragraph 69 above, paragraph 205 and the case-law cited). It follows that knowledge, on the part of the directors of an undertaking, of the exact content of the competition rules, such as may be acquired through a training and compliance programme, is not a prerequisite for a finding of infringement of those rules. On the contrary, it is clear from the abovementioned case-law that, even in the absence of such knowledge, it is possible not only for a finding of negligent infringement of the competition rules to be reached, but also a finding of intentional infringement of those rules.
It follows from all the foregoing considerations that the fourth part of the second plea is unfounded in law and must therefore be rejected.
The fifth part of the second plea, alleging failure to take account of the critical situation of the calcium carbide production sector and of the applicant itself
The applicant argues that, in a series of past cases, the Commission granted significant reductions in the fines in view of the critical situation across the sector in question. Moreover, the Courts of the European Union have frequently acknowledged the difficult situation in which a sector finds itself as a mitigating circumstance justifying a reduction in the fine. However, even though the applicant demonstrated in the course of the administrative procedure that the entire calcium carbide sector, and it itself in particular, were in a critical situation both before the period of the infringement and during that period, the Commission wrongly refused to recognise that circumstance as a mitigating factor. In this connection, the applicant repeats the arguments which it put forward in the administrative procedure in order to prove the critical situation which it alleges.
The Commission rejected the arguments which the applicant and certain other cartel members put forward to that effect during the administrative procedure, stating, in recital 330 to the contested decision, as follows: ‘These arguments may explain why the suppliers of calcium carbide and magnesium granulates may have preferred to limit competition, but do not justify cartel behaviour.’ In response to the argument that it had, in similar circumstances in the past, granted a reduction in the amount of the fine, the Commission referred to the case-law according to which it was not bound by its previous decision-making practice (see paragraph 87 above) and added the following: ‘Furthermore, the [General] Court ... has confirmed that the Commission is not obliged to accept the poor economic state of the industry concerned as an attenuating circumstance.’
Indeed, according to settled case-law, the Commission is not required to regard the poor financial health of the sector in question as a mitigating circumstance. The fact that, in previous cases, the Commission may have taken the economic situation in the sector concerned into consideration as a mitigating circumstance does not mean that it must necessarily continue to follow that practice. Indeed, as a general rule, cartels come into being when a sector is experiencing difficulties (see
Raiffeisen Zentralbank Österreich and Others
v
Commission
, paragraph 69 above, paragraph 510, and Case
T-39/06
Transcatab
v
Commission
[2011] ECR II-6831
, paragraph 352 and the case-law cited).
That is precisely the case-law on which the applicant relies in support of its assertion that the Courts of the European Union have frequently recognised the critical situation of a given sector as a mitigating circumstance, and it is thus clear that it has misread it.
In addition, it must be observed that the arguments which the applicant puts forward regarding its own critical economic situation in particular and that of the entire sector in general are merely a repetition of the arguments which its put forward in reply to the statement of objections. It is, however, clear from the case-law referred to in paragraph 175 above that the Commission was entitled to reject those arguments, all the more so given that the applicant has been unable to add anything further in its submissions before the Court that is capable of calling into question the Commission’s conclusion, as stated in the contested decision.
Consequently, the Court must reject the fifth part of the second plea and, therefore, the second plea in its entirety, subject to further examination of the second part of the second plea in conjunction with the third plea. Moreover, since all of the arguments which the Court has just considered must be rejected, it must be held that they provide no justification for the Court to exercise its unlimited jurisdiction and reduce the fine imposed on the applicant.
The third plea, alleging infringement of the 2002 Leniency Notice
The applicant argues that the reduction in its fine which the Commission granted it in recognition of its cooperation during the administrative procedure (see paragraph 10 above) is too small and therefore unlawful.
The 2002 Leniency Notice
Section B, points 20 to 23, of the 2002 Leniency Notice are worded as follows:
‘B. REDUCTION OF A FINE
20.
Undertakings that do not meet the conditions under section A above [IMMUNITY FROM FINES] may be eligible to benefit from a reduction of any fine that would otherwise have been imposed.
21.
In order to qualify, an undertaking must provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s possession and must terminate its involvement in the suspected infringement no later than the time at which it submits the evidence.
22.
The concept of “added value” refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Commission’s ability to prove the facts in question. In this assessment, the Commission will generally consider written evidence originating from the period of time to which the facts pertain to have a greater value than evidence subsequently established. Similarly, evidence directly relevant to the facts in question will generally be considered to have a greater value than that with only indirect relevance.
23.
The Commission will determine in any final decision adopted at the end of the administrative procedure:
(a)
whether the evidence provided by an undertaking represented significant added value with respect to the evidence in the Commission’s possession at that same time;
(b)
the level of reduction an undertaking will benefit from, relative to the fine which would otherwise have been imposed, as follows. For the:
—
first undertaking to meet point 21: a reduction of 30-50%,
—
second undertaking to meet point 21: a reduction of 20-30%,
—
subsequent undertakings that meet point 21: a reduction of up to 20%.
In order to determine the level of reduction within each of these bands, the Commission will take into account the time at which the evidence fulfilling the condition in point 21 was submitted and the extent to which it represents added value. It may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission.
In addition, if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence.’
The contested decision
In recitals 342 to 346 of the preamble to the contested decision, the Commission assessed the application of the 2002 Leniency Notice in the following terms:
‘(342)
Donau Chemie submitted an application for reduction of fines on 25 January 2007, one week after the inspections ... presenting evidence in relation to calcium carbide (powder and granulates). The Commission had already considerable evidence at its disposal for calcium carbide powder from Akzo [Nobel] and as gathered during the inspections. However, the application provided the Commission with corroboration and specific details on the events with respect to calcium carbide granulates. At that time, the evidence in [the] possession of the Commission on this product segment was limited to (i) statements of an Akzo [Nobel] employee with only second hand knowledge on this part of the cartel, and (ii) inspection documents with some sporadic information. The corroboration and evidence provided by Donau Chemie was instrumental to the establishment of the infringement.
(343)
It was the first undertaking to provide the Commission with dates and details on the content of meetings with respect to this product segment. This evidence strengthened, by its very nature and by its level of detail, the Commission’s ability to prove the facts in question.
(344)
Donau Chemie was also the first undertaking to report that the collusion for calcium carbide was part of a wider anti-competitive scheme including magnesium granulates.
(345)
Donau Chemie terminated, before submitting its application, its involvement in the suspected infringement. Donau Chemie continued to cooperate by replying to requests for information, but did not provide any further evidence on a voluntary basis. In determining, in accordance with point 23 of the 2002 Leniency Notice, what percentage reduction of the fine Donau Chemie merits within the band of 30% to 50%, the Commission notes that Donau Chemie’s reduction will affect the fine for calcium carbide granulates as well as calcium carbide powder. Donau Chemie provided significant added value only for calcium granulates, one of the two products for which a fine is imposed. The Commission notes that Donau Chemie reported the existence of a possibly wider anti-competitive scheme including magnesium granulates.
(346)
The Commission concludes that, taking these elements into account, Donau Chemie is entitled to a 35% reduction of the fine that would otherwise have been imposed.’
Introductory remarks
The applicant points out that the reduction in its fine which it was granted is at the lower end of the 30% to 50% band specified in the first indent of the first paragraph of point 23(b) of the 2002 Leniency Notice. It submits that, had the Commission correctly assessed the extent and value of its cooperation, it would have granted it a greater reduction, close to the upper limit of 50%. In that context, it puts forward arguments relating to the time when it submitted the evidence to the Commission and to the significant added value which that evidence represented as regards calcium carbide granulates, calcium carbide powder and magnesium granulates. Those arguments will be examined in succession below.
After that examination, and according to the conclusions drawn from it, it will be necessary to consider whether or not the reduction in the fine granted to the applicant was appropriate. Indeed the second paragraph of point 23(b) of the 2002 Leniency Notice provides that, in order to determine the level of reduction of the fine within the specified bands, consideration is to be given to the extent to which the evidence submitted by the undertaking in question represents added value. It is therefore necessary to determine, with respect to each aspect of the evidence examined, whether a greater or lesser degree of added value should be ascribed to it.
The applicant also argues, in the alternative, that, should the points which it makes in support of its argument fail to justify the grant of a greater reduction in the fine than that already granted in the contested decision, then the fact that it provided the evidence in question should be regarded as effective cooperation with the Commission outside the scope of the Leniency Notice, within the meaning of the fourth indent of point 29 of the Guidelines, warranting recognition as a mitigating circumstance in its favour. That argument will be examined last.
The date of the applicant’s submission of evidence to the Commission
The applicant points out that it lodged its application for a reduction in the fine, supported by evidence that represented significant added value, on 25 January 2007, that is to say just one week after the Commission carried out its inspections and long before the Commission sent it a request for information.
The Commission states that it does not necessarily share the view that the applicant lodged its request especially swiftly. However, it adds that, in any event, it took a positive stance in the contested decision with regard to the time when the applicant submitted its application for leniency. That factor, taken together with the added value of the information which the applicant provided, led it to set the rate of reduction of the fine at 35%.
In light of those explanations from the Commission and in the absence of any specific argument on the Commission’s part to show that the applicant’s leniency application might have or ought to have been made sooner, the Court, like the Commission, must give positive weight to this aspect, for the purpose of determining the extent to which the evidence provided by the applicant represented added value.
The added value of the evidence provided by the applicant in relation to calcium carbide granulates
The applicant gives a detailed account of the evidence which it provided to the Commission in relation to calcium carbide granulates and of the added value which, in its view, that evidence represented for the Commission. It submits that this evidence was the first to enable the Commission to establish the existence of an infringement in this sector. According to the applicant, up until the time when it submitted its statement, the only evidence in the Commission’s possession consisted in vague allusions to this part of the cartel of little probative value made by an Akzo Nobel employee.
The Commission does not dispute that, in so far as concerns calcium carbide granulates, the information provided by the applicant was useful to it and, by its very nature and its level of detail, assisted it in proving the infringement. It nevertheless emphasises that it was not the only evidence on which it could rely in order to establish the existence of the infringement in the calcium carbide granulates sector, inasmuch as it also had in its possession not only the statement from Akzo Nobel but also information which it had gathered during its inspections at the premises of several of the cartel members.
It must be held, in light of the observations made in recital 343 to the contested decision and the explanations which the Commission has offered to the Court, that the added value of the evidence relating to calcium carbide granulates which the applicant provided with its submission was significant. That factor must be given positive weight for the purpose of determining the extent to which the evidence provided by the applicant represented added value. That conclusion is not altered by the Commission’s assertion that, at the time when the applicant applied for leniency, it was already in possession of certain information and evidence relating to this part of the infringement, since the Commission has itself acknowledged that the evidence which the applicant provided strengthened its ability to prove this part of the infringement.
The added value of the evidence provided by the applicant in relation to calcium carbide powder
The applicant argues that it provided evidence that made it very much easier to establish the infringement with regard also to calcium carbide powder. That evidence concerned the duration of the infringement and, in addition, it enabled the Commission to establish the identities of the cartel members and the content of their discussions at the various meetings relating to this part of the infringement.
The Commission disputes those assertions. It argues that, in order to assess the added value of the information provided by the applicant, it is necessary for account to be taken of all the evidence that was in its possession at the time when the applicant submitted its statement, and not only of the statement given by Akzo Nobel. Indeed, at that time, the Commission already had in its possession sufficient evidence to prove the part of the infringement relating to calcium carbide powder and, consequently, the applicant’s submission did not offer significant added value with regard to that product. The points which the applicant makes in support of its argument in this connection do not warrant any further reduction in its fine beyond that already granted in the contested decision.
The applicant relies on three arguments in support of its assertion that the evidence which it provided with its submission represented significant added value also with regard to the part of the cartel relating to calcium carbide power. First of all, it submits that it was the first to provide the Commission with information about the meetings of 22 November 2005 and 25 April 2006, referred to in recitals 78 and 83 to the contested decision respectively, inasmuch as, by its own admission, Akzo Nobel did not attend those two meetings.
That argument cannot succeed. The mere fact that Akzo Nobel did not attend those meetings does not imply that it was unable to provide information about them to the Commission. Indeed, footnotes 188 and 207, to which the abovementioned recitals respectively refer, include Akzo Nobel’s submission among the evidence on which the Commission relied in connection with those two meetings. They also mention numerous documents seised by the Commission during the inspections which it carried out at the premises of various cartel members. Those inspections took place prior to the applicant’s leniency application and the evidence in question was therefore already in the Commission’s possession when that application was made. Consequently, in the absence of any detailed objection from the applicant regarding the relevance of that body of evidence, it cannot be accepted that the applicant was the first undertaking to provide the Commission with relevant evidence about those meetings, irrespective of whether that circumstance, were it to be established, would have been sufficient to found the conclusion that it had provided evidence of significant added value also in relation to calcium carbide powder.
Secondly, the applicant argues that, by contrast with Akzo Nobel, it gave details in its leniency application of the participants present at each meeting of the cartel. In particular, in its submission of 4 December 2006, Akzo Nobel failed to mention Novácke chemické závody’s participation in the cartel. It was the information which the applicant alone provided that enabled the Commission to establish the full extent of the cartel, and the Commission made full use of that information. The applicant refers, in this connection, to footnote 154 to the contested decision.
That argument must also be rejected. It is recital 67 to the contested decision that refers to footnote 154, to which the applicant refers. That recital concerns the second meeting of the part of the cartel relating to calcium carbide powder, which took place on 7 September 2004. Novácke chemické závody was one of the participants at that meeting, whose identities are listed in recital 67. The evidence on which the Commission relied is set out in footnote 153. Footnote 154, to which the applicant refers, specifically concerns the list of participants at the meeting, but merely states ‘
idem
’, and thus refers back to footnote 153. Footnote 153 identifies a number of pieces of evidence, including two submissions from Akzo Nobel, dated 29 November and 22 December 2006, along with a number of documents seised at the premises of various cartel members during the inspections carried out by the Commission. Among those documents are documents seised at the premises of Novácke chemické závody itself. As has already been mentioned, those inspections were carried out before the applicant submitted its leniency application. That being so, and in the absence of detailed argument from the applicant calling this body of evidence into question, its argument that it was the first undertaking to inform the Commission of the identities of the members of the part of the cartel relating to calcium carbide powder must be rejected.
Thirdly, the applicant argues that it was its leniency application that enabled the Commission to establish the nature of the agreements concluded at that same meeting. The applicant refers, in this connection, to footnote 160 and, ‘generally’ to footnote 136 to the contested decision. It adds that it provided the Commission with a detailed list of the customers concerned.
In so far as concerns footnote 136, it is recital 62 to the contested decision that refers to that footnote in order to substantiate the assertion that, ‘[i]n various meetings, the participants, aside from market sharing, discussed and agreed upon general price increases for calcium carbide powder’. It is true that the footnote refers to the various leniency applications of the undertakings concerned, including that of the applicant, which, of all the submissions referred to, was the first to have been made to the Commission.
However, it cannot be concluded that it was from the applicant’s submission that the Commission first learned that the part of the cartel relating to calcium carbide powder concerned, in particular, the price increases implemented by the participants. Indeed, recital 62 goes on to state: ‘The Commission has evidence that prices and price increases were discussed and/or agreed upon during at least six of the twelve meetings’. The evidence that was in the Commission’s possession is listed in footnote 137 and includes the two submissions from Akzo Nobel referred to in paragraph 196 above as well as documents seised during the inspections which the Commission carried out at the premises of Novácke chemické závody and TDR Metalurgija before the applicant made its leniency application.
As regards footnote 160 to the contested decision, that footnote refers to the applicant’s submission in order to substantiate the assertion made in recital 68 to the contested decision that, at the meeting of 7 September 2004, ‘[a]t the request of [another cartel member] having a licence agreement with A., the main supplier in the UK, it was agreed to refrain from supplying customers in the UK.’ It must be recalled in this connection that the Commission found that the cartel at issue did not extend to the United Kingdom (see paragraph 1 above). However, even supposing that it was solely on this information provided by the applicant that the Commission based its conclusion as to the geographic scope of the cartel, there can be no question of the applicant’s submission having added value with regard to calcium carbide powder: the submission did not enable the Commission to prove anything; at most it indicated that it would be impossible to prove that the cartel also covered the United Kingdom.
In light of all the foregoing considerations, it must be held that the Commission was entitled to conclude that the evidence provided by the applicant did not represent significant added value with regard to calcium carbide powder. That factor must therefore be given negative weight for the purpose of determining the extent to which the evidence provided by the applicant represented added value.
The added value of the evidence provided by the applicant in relation to magnesium granulates
The applicant argues, first of all, a breach of the duty to state reasons inasmuch as the contested decision contains contradictions on the subject of the added value of the information disclosed in its submission in relation to magnesium granulates. Recital 345 to the contested decision, according to which it ‘provided significant added value only for calcium granulates’, contradicts recital 344, according to which it was ‘the first undertaking to report that the collusion for calcium carbide was part of a wider anti-competitive scheme including magnesium granulates’.
Next, the applicant argues that, independently of that breach of the duty to state reasons, the Commission’s failure to take into consideration, for the purpose of reducing the fine which it imposed on it, the significant added value of the evidence which it provided on the subject of magnesium granulates is also unlawful. The Commission expressly confirmed in the contested decision that the applicant was the first undertaking to inform it of the existence of the part of the cartel relating to magnesium granulates. Akzo Nobel’s leniency application contained no information in that regard. It follows that the applicant provided the Commission with evidence of fundamental importance to establishing the existence of that part of the cartel. Indeed, inasmuch as it was the applicant that revealed that part of the cartel to the Commission, it could be said that, on this point, it was the first undertaking to cooperate with the Commission, within the meaning of the 2002 Leniency Notice. In any event, it enabled the Commission to develop and support its argument of an overall scheme and a single cartel relating to three different products. The applicant considers that it therefore made an essential contribution, having made it possible to extend the scope of the cartel found, to increase its gravity and to increase the fines considerably.
The applicant also refers to specific aspects of the part of the cartel relating to magnesium granulates and submits that it made a significant contribution in relation to them. First, it named the undertakings which participated in that part of the cartel and the customers affected by it. Secondly, it informed the Commission about the content of the discussions that took place at the two meetings of 22 November 2005 and 11 July 2006. At the first meeting, the applicant had been persuaded to obtain supplies of magnesium from Ecka group. At the second, the producers of magnesium granulates announced a price increase to the producers of calcium carbide. The applicant points out that it provided the Commission with all the evidence in its possession concerning those matters. The information and evidence which it communicated to the Commission fulfilled all the criteria relating to significant added value. Furthermore, the significant added value of the evidence which it provided is confirmed by the numerous references that are made to it in the contested decision.
In its reply, the applicant requested the Court to obtain, by means of a measure of organisation of the procedure or even a measure of inquiry, if necessary, a copy of its leniency application so that the information and evidence contained in it concerning magnesium granulates might be re-examined. Moreover, as was noted in paragraph 17 above, at the hearing, the applicant requested authorisation to lodge an extract of the statement in question. When asked whether there were particular reasons of a specific nature that had prevented it from lodging that document together with its application in these proceedings, the applicant answered in the negative. It nevertheless added that its request had been prompted by the content of the Commission’s defence and, above all, its rejoinder, in which the Commission had argued that the statements which the applicant had made in its leniency application in connection with the part of the cartel relating to magnesium granulates were ambiguous. Its offer to lodge an extract of the statement was intended to demonstrate that that allegation was incorrect.
Lastly, the applicant argues that, although it was the first undertaking to reveal the existence of the part of the cartel relating to magnesium granulates, the Commission granted Degussa a reduction in its fine on account of the evidence provided in relation to that part of the cartel, despite the fact that, as the Commission acknowledged in recital 355 to the contested decision, the fine imposed on Degussa concerned only its participation in the part of the cartel relating to calcium carbide powder. According to the applicant, the favourable treatment thus reserved to Degussa further highlights the unlawfulness by which the contested decision is vitiated. The applicant also alleges, on the same grounds, a breach of the principle of equal treatment to its detriment.
First of all, the Court must reject the applicant’s argument that the reasoning in the contested decision is contradictory (see paragraph 202 above). The extract from recital 345 to the contested decision, on which the applicant relies in this connection, has been taken out of context. It is clear, on reading the whole of that recital, that the Commission stated that the reduction in the fine to be granted to the applicant in accordance with the 2002 Leniency Notice affected both the part of the fine to be imposed in respect of its participation in the part of the cartel relating to calcium carbide powder and the part of the fine reflecting its participation in the part of the cartel relating to calcium carbide granulates, even though the significant added value provided by the applicant’s submission concerned only the latter part of the cartel. The part of the cartel relating to magnesium granulates is not mentioned in this context, since the applicant did not participate in that part and consequently the fine imposed on it did not include a sum relating to that part of the cartel. Accordingly, recital 345 to the contested decision cannot be interpreted as meaning that the Commission found that the applicant’s submission offered no added value in so far as concerns the part of the cartel relating to magnesium granulates, nor may be it regarded as contradicting recital 344 to the decision.
Next, it must be observed that it is clear from recital 344 that, as the Commission confirmed in its pleadings before the General Court, that institution gave positive weight, when deciding on the percentage of the reduction in the fine to be granted to the applicant, to the fact that it was the first undertaking to inform it of the existence of the part of the cartel relating to magnesium granulates. The Commission nevertheless asserted that it had not been able, on the sole basis of the information provided by the applicant, to prove the existence of that part of the cartel. Therefore, according to the Commission, the applicant provided significant added value, by means of its submission, only with regard to calcium carbide granulates.
Before expressing its position on those assertions of the Commission’s, the Court must examine the applicant’s arguments, summarised in paragraph 204 above, by which it alleges that it provided the Commission with specific evidence relating to the part of the cartel concerning magnesium granulates. It must be observed in this connection that recitals 113 to 135 of the preamble to the contested decision, which explain in detail how this part of the cartel developed, contain no reference to the statement made by the applicant when submitting its leniency application or to any other item of evidence provided by the applicant. That part of the contested decision refers only to the statement made by Degussa and to documents seised by the Commission during the inspections which it carried out at the premises of various cartel members.
In so far as concerns the applicant’s references to the meetings of 22 November 2005 and 11 July 2006, it is clear from recitals 78 and 85 to the contested decision respectively that those meetings concerned the part of the cartel relating to calcium carbide powder. Recital 79 to the contested decision, which also deals with the meeting of 22 November 2005, merely reports the applicant’s assertion that suppliers of magnesium granulates tried to convince it to obtain supplies of magnesium from Ecka, without expressing any view on that assertion or drawing any conclusions from it. Similarly, recital 86 to the contested decision, which concerns the meeting of 11 July 2006, mentions the applicant’s assertion that producers of magnesium granulates announced a price increase, without commenting on that assertion or drawing any conclusions from it. It cannot, therefore, be accepted that those two assertions of the applicant’s provided any added value whatsoever, at least not in so far as concerns the part of the cartel relating to magnesium granulates.
That being so, it is not necessary for the Court to adopt a measure of organisation of the procedure or indeed a measure of inquiry, as requested by the applicant (see paragraph 205 above). The contested decision clearly confirms that the applicant did indeed provide the two items of evidence mentioned in paragraph 210 above and there is, therefore, no need for further verification of the matter. Moreover, the Commission attached no importance to those two items of evidence in the contested decision and the applicant has put forward no argument to show that that evidence was instrumental in proving the infringing conduct in question. Furthermore, the applicant has not mentioned any other evidence concerning the part of the cartel relating to magnesium granulates that might have been included in its statement and disregarded by the Commission. Nor is it for the General Court itself to request the production of the applicant’s statement and investigate whether that statement includes any such additional evidence. The applicant’s request for the adoption of a measure of organisation of the procedure or a measure of inquiry must therefore be rejected.
The foregoing considerations also justify the refusal of the offer of evidence made by the applicant during the hearing, relating to the production of an extract of its statement. It must be borne in mind in this connection that Article 48(1) of the Rules of Procedure provides that a party may offer further evidence in reply or rejoinder, although that provision specifies that the party must give reasons for the delay in offering it. According to the case-law, the lodging of evidence offered after the rejoinder remains possible only where the person offering the evidence was unable, before the end of the written procedure, to obtain possession of the evidence in question, or if evidence produced belatedly by the other party justifies completing the file so as to ensure observance of the rule that both parties should be heard. Since it is an exception to the rules governing the submission of offers of evidence, Article 48(1) of the Rules of Procedure requires parties to give reasons for the delay in offering their evidence. That obligation implies that the Court has jurisdiction to review the merits of the reasons given for the delay in producing the evidence offered and, where appropriate, the content thereof and, where the application is not substantiated to the requisite legal standard, the power to dismiss the evidence. The same applies,
a fortiori
, to offers of evidence made after the rejoinder is lodged (Case C‑243/04 P
Gaki Kakouri
v
Court of Justice
[2005] not published in the ECR, paragraphs 32 and 33, and Case T‑47/05
Angé Serrano and Others
v
Parliament
[2008] ECR Staff Cases I‑A‑2-55 and II‑A‑2-357, paragraphs 55 and 56).
In this case, the applicant has given no reason to explain why it was unable to lodge the document in question with its application. As regards its argument that the document proves that the assertions which it made regarding the part of the cartel relating to magnesium granulates were not ambiguous, suffice it to recall that the contested decision discloses no such assessment of the applicant’s statements on the Commission’s part. On the contrary, as has already been pointed out, the Commission gave positive weight to the fact that the applicant was the first undertaking to bring that part of the cartel to its attention, even though it found that the applicant had not provided it with sufficient evidence of that part of the cartel. Even if the arguments which the Commission put forward on this point before the Court are to be understood in the sense that the Commission does regard the applicant’s statements as ambiguous, a view that is in no way expressed in the contested decision, that is of no relevance to the resolution of the dispute and cannot be taken into consideration by the Court. Accordingly, if, as the applicant alleges, its offer to lodge an extract of its statement was intended solely to counter such a view, it nevertheless remains inadmissible.
Indeed, notwithstanding the considerations set out in paragraph 210 above, the fact that, by its statement, the applicant gave the Commission the first indication of the existence of the part of the cartel relating to magnesium granulates is a factor to which it was appropriate to give positive weight and one which the Commission indeed took into account, as is confirmed by the contested decision, when determining the exact percentage of the reduction in the fine to be granted to the applicant. However, in that same context, negative weight must also be given to the fact, which is not called into question by the evidence adduced by the applicant, that the applicant’s statement did not in itself enable the Commission to prove the existence of that part of the cartel.
As regards the applicant’s argument, summarised in paragraph 206 above, that the reduction in the fine granted to Degussa entails unlawfulness and a breach of the principle of equal treatment, that too must fail.
It must be recalled in this connection that, in the contested decision, the Commission reached a finding regarding the existence of a single, continuous infringement relating to three distinct products. That finding has not been called into question by the applicant. With the 2002 Leniency Notice, the Commission undertook, as is clear from point 8 thereof, to grant immunity from any fine to the first undertaking to submit to it evidence enabling it to adopt a decision to carry out an inspection or to find an infringement of the competition rules and, in accordance with points 20 et seq., to grant a reduction in the fine to other undertakings which, in the same context, have provided evidence representing significant added value. Between the undertakings falling into that latter category, a distinction is drawn according to the order in which they have provided the evidence, the first being entitled to a reduction of between 30% to 50%, the second a reduction of between 20% to 30% and subsequent undertakings a reduction of up to 20%.
In this case, the applicant was the first undertaking after Akzo Nobel to submit a leniency application accompanied by evidence representing significant added value and, as such, it was entitled to a reduction of between 30% to 50%. In the end it received a reduction of 35%. Degussa was the second undertaking to qualify for a reduction and, in the contested decision, it was granted a reduction of 20%. There was therefore no unlawfulness and Degussa did not receive favourable treatment by comparison with the applicant.
To the extent that the applicant’s argument is to be understood in the sense that it was the first undertaking to qualify for a reduction in respect of the part of the cartel relating to magnesium granulates and that the Commission instead granted that reduction to Degussa, that too must be rejected. The infringement at issue was a single infringement and there was therefore no question of any reduction being granted in connection with one or other part of the cartel in particular. Any reduction in the fine had to apply to, and indeed did apply to the whole of the fine imposed on each undertaking. Admittedly, the question of which of the products was the subject of the evidence of significant added value submitted by the various undertakings was relevant, but only to the assessment of the extent to which that evidence represented added value and, consequently, to the determination of the precise percentage by which the fine should be reduced. The fact that the applicant was the first undertaking to inform the Commission of the existence of the part of the cartel relating to magnesium granulates does not mean that another undertaking, Degussa in this case, was incapable of providing evidence of significant added value regarding that same part of the cartel or that such an undertaking could not obtain a reduction in its fine on that ground — a reduction, moreover, which, in this case, was less than that granted to the applicant.
For the same reasons, the Court must reject the applicant’s argument, put forward in its reply, by which it called into question the immunity granted to Akzo Nobel on the ground that the assertions which that undertaking made in its statement regarding calcium carbide granulates were, supposedly, vague and that it had allegedly disputed the very existence of the part of the cartel relating to magnesium granulates. Indeed, the applicant does not dispute the fact that Akzo Nobel revealed evidence of significant added value concerning calcium carbide powder which enabled the Commission to adopt a decision to carry out an inspection and, subsequently, to establish the existence of a single infringement that included a part relating to that product. Those facts alone are sufficient to justify the immunity from fines which Akzo Nobel was granted.
The appropriateness of the rate of reduction of the amount of the fine granted to the applicant
The applicant considers that, with regard to each of three products to which the infringement related, it provided the Commission with evidence that offered significant added value and that, consequently, it should have obtained a reduction at a rate close to the upper limit (50%) of the scale provided for.
The Commission emphasises, first of all, that the 2002 Leniency Notice allows it a discretion in determining the rate of the reduction in the fine that is to be granted to undertakings in recognition of their cooperation.
As is apparent from the considerations set out in paragraph 58 above, the General Court has jurisdiction to substitute its own assessment of what would be an appropriate rate of reduction for that of the Commission and, if it finds that a different rate would have been appropriate, it may, in the exercise of its unlimited jurisdiction, reduce or increase the amount of the fine imposed by the Commission in accordance with the rate of reduction which it considers to be appropriate. Moreover, in light of the considerations set out in paragraphs 59 and 60 above and in the absence of any evidence or argument from the applicant such as might justify the Court’s departure from the band of reductions applicable to the applicant under the 2002 Leniency Notice (30% to 50%), the Court must adhere to that band. Consequently, it must determine whether the 35% reduction decided on by the Commission was appropriate or whether it would have been appropriate to apply a different rate, possibly one closer to the upper limit, as the applicant argues.
In this connection it must be borne in mind that, as explained above, the time when the applicant submitted to the Commission its leniency application containing evidence of the infringement, the significant added value which that evidence represented in so far as concerns proving the part of the cartel relating to calcium carbide granulates, and the fact that the applicant was the first undertaking to inform the Commission of the existence of a third part of the cartel relating to magnesium granulates are all factors that must be given positive weight in the context of the present assessment. On the other hand, negative weight must be attributed to the fact that the evidence furnished by the applicant offered no significant added value in so far as concerns the part of the cartel relating to calcium carbide powder and to the fact that, although the applicant informed the Commission of the existence of the part of the cartel relating to magnesium granulates, it was unable to provide the Commission with sufficient evidence to enable it to prove that part of the cartel, that evidence being subsequently provided by Degussa.
It should also be recalled that, in recital 345 to the contested decision, the Commission noted that, after it submitted its leniency application containing items of evidence, the applicant ‘continued to cooperate by replying to requests for information, but did not provide any further evidence on a voluntary basis’. However, in the absence of any explanation from the Commission such as might suggest that the applicant was in possession of other evidence that it did not voluntarily provide, it must be concluded that that was no more than a neutral observation on the Commission’s part, made with the simple intention of giving a complete account of the relevant facts, to which neither positive nor negative weight should be accorded.
As has already been pointed out, in recital 345 to the contested decision, the Commission observed that, although the applicant had provided evidence of significant added value only in relation to the part of the cartel relating to calcium carbide granulates, the reduction in the fine that it was to be granted would have an effect not only on the part of the fine reflecting its participation in that part of the cartel but also on the part of the fine reflecting its participation in the part of the cartel relating to calcium carbide powder. It is clear that that fact influenced the Commission’s decision regarding the rate of reduction which it would grant the applicant.
Indeed, the Commission stated before the Court that it considered that it had been ‘more than generous’ in this connection, allowing the applicant a reduction in its fine of 35%. It added that that reduction of 35% of the amount of the fine which it granted the applicant represented EUR 2.7 million, which equated to 70% of the part of the fine imposed on the applicant in respect of its participation in the part of the cartel relating to calcium carbide granulates. In response to the applicant’s remark that, in substance, that reasoning was irreconcilable with the Commission’s finding of a single infringement relating to three separate products, the Commission observed that, notwithstanding the fact that the infringement at issue was a single infringement, it was entitled to ‘draw a distinction between the various parts of the cartel in so far as concerned the added value of the information provided’.
As regards that last, slightly vague remark of the Commission’s, it must be observed that it is apparent from the considerations set out in paragraph 218 above that it would have been contrary to the 2002 Leniency Notice to apply the reduction in the fine solely to the part of the fine relating to the part of the infringement in relation to which the applicant had provided evidence of significant added value. In any event, at the hearing, the Commission explained that its remark was not to be understood as meaning that it was stating the contrary.
Indeed, the relevance of the evidence of an infringement to the part of the infringement in which the undertaking providing that evidence has participated is not one of the criteria that, in accordance with the second paragraph of point 23 of the 2002 Leniency Notice, must be taken into account in determining the level of reduction of the fine that is to be granted to that undertaking.
It follows that, for the purpose of determining the appropriate rate of reduction to be applied, in recognition of the applicant’s cooperation, to the fine to be imposed on the applicant, the fact that the fine was designed to sanction the applicant’s participation not only in the part of the cartel in relation to which it had provided evidence of significant added value but also its participation in another part of the same cartel in relation to which it had not provided such evidence was not to be taken into consideration.
Furthermore, account must be taken of the turnover achieved by the cartel members from the sale of each of the three products to which the infringement related, as indicated in recital 288 to the contested decision. It is clear from those indications that the combined turnover achieved by the cartel members from sales of calcium carbide power represented between 45% and 50% of their total combined turnover, from sales of calcium carbide granulates between 30% and 35% of their total combined turnover and from sales of magnesium granulates 20% of the total. It follows that, as the Commission itself acknowledges, the applicant provided the Commission with the evidence that it required to prove a part of the infringement that accounted for between 30% and 35% of the total turnover to which the infringement related and, in addition, drew the Commission’s attention to the existence of a third part of the same infringement, even though it was unable to provide that institution with the evidence it needed to prove its existence.
In light of all of those factors, the Court finds that it must uphold the third plea, in part, and annul Article 2(c) of the contested decision in so far as the Commission applied a rate of reduction of 35% in order to set the final amount of the fine, and, subject to its examination of the applicant’s remaining pleas and arguments, reduce the fine imposed on the applicant to EUR 4.35 million, that sum resulting from the application of a reduction of 43.5% to the basic amount of EUR 7.7 million given for the applicant in recital 308 to the contested decision, that being the rate of reduction which the Court considers appropriate in the circumstances of the case.
Whether the applicant’s cooperation should be taken into consideration as a mitigating circumstance
There remains the argument, raised by the applicant, that its cooperation with the Commission should have been taken into consideration as a mitigating circumstance. Admittedly, in the context of the third plea, the applicant puts forward this argument merely in the alternative, ‘in the event that the Court should not accept’ its argument relating to infringement of the 2002 Leniency Notice. However, since that argument was not upheld in its entirety, and since the applicant put forward a similar argument in the context of its second plea (see paragraph 148 above), it is appropriate for the Court to examine this argument also.
It must be recalled in this connection that, in accordance with the fourth indent of point 29 of the Guidelines, the Commission will find that mitigating circumstances exist ‘where the undertaking concerned has effectively cooperated with [it] outside the scope of the Leniency Notice and beyond its legal obligation to do so’. According to consistent case-law, a reduction in the fine on account of cooperation during the administrative procedure is justified only if the conduct of the undertaking enabled the Commission to establish the existence of an infringement with less difficulty and, where appropriate, bring it to an end (Case
C-297/98 P
SCA Holding
v
Commission
[2000] ECR I-10101
, paragraph 36, Case
C-328/05 P
SGL Carbon
v
Commission
[2007] ECR I-3921
, paragraph 83, and Case
T-311/94
BPB de Eendracht
v
Commission
[1998] ECR II-1129
, paragraph 325).
In the present case, in so far as the applicant’s argument concerning the failure to regard its cooperation with the Commission as a mitigating circumstance is based on the cooperation which resulted from its submission of a leniency application under the 2002 Leniency Notice, it must be rejected. Indeed, it is manifestly clear that that cooperation was not cooperation ‘outside the scope of’ the 2002 Leniency Notice. It was assessed by the Commission in accordance with the 2002 Leniency Notice and the Court has already re-examined that assessment and substituted its own assessment for that of the Commission, which resulted in granting the applicant an additional reduction in the fine imposed on it.
In so far as the applicant’s argument is based on cooperation other than that resulting from its submission of a leniency application under the 2002 Leniency Notice, it must again be rejected. Indeed, the applicant has failed to specify what that cooperation actually consisted in or, still less, in what way it enabled the Commission to establish the existence of an infringement with less difficulty and, if appropriate, bring it to an end.
The Court must therefore reject the applicant’s argument and restrict itself to the reduction in the fine mentioned in paragraph 231 above.
The fourth plea, alleging breach of the principles of equal treatment and proportionality
The applicant argues that, when determining the amount of the fine which it imposed on it, the Commission breached the principles of equal treatment and proportionality. The various arguments which it puts forward in this context may be grouped into two principal complaints by which it alleges, first, a failure to differentiate the amounts of the fines according to the sizes of the undertakings concerned and their turnover, both in overall terms and in the market to which the infringement relates and, secondly, an allegedly favourable treatment of Almamet.
These two complaints will be examined in turn. It is nevertheless necessary to recall at the outset that, in setting fines such as those at issue in the present case, the Commission is bound to comply with the general principles of law, in particular the principles of equal treatment and proportionality, as developed by the case-law of the Courts of the European Union (
Degussa
v
Commission
, paragraph 66 above, paragraphs 77 and 79, and Case
T-69/04
Schunk and Schunk Kohlenstoff-Technik
v
Commission
[2008] ECR II-2567
, paragraph 41). According to settled case-law, the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see
BPB de Eendracht
v
Commission
, paragraph 233 above, paragraph 309 and the case-law cited). The principle of proportionality requires that the measures adopted by the institutions must not exceed what is appropriate and necessary for attaining the objective pursued (see
Jungbunzlauer
v
Commission
, paragraph 70 above, paragraph 226 and the case-law cited).
The first complaint, alleging a failure to differentiate the amounts of the fines according to the sizes of the undertakings concerned and their turnover, both in overall terms and in the market to which the infringement relates
The applicant argues that the Commission’s decision-making practice when determining the basic amount of fines is to base that amount, in particular, on the size of the undertaking in question and that, where there is equal involvement in an infringement, the amounts of the fines may vary according to the sizes of the undertakings in question. The Courts of the European Union have themselves regarded the relative sizes of the undertakings in question as an essential criterion when setting fines in cases where several undertakings have participated in the same infringement. In the present case, however, the Commission is guilty of a flagrant violation of the principle of equal treatment, to the applicant’s detriment. Even though it is only a relatively small undertaking, it received a fine the basic amount of which is the equivalent of approximately 4% of its total turnover in 2006. The basic amounts of the fines imposed on Akzo Nobel and Degussa, by contrast, are the equivalent of approximately 0.05% of their respective total turnovers in the same year.
The applicant also complains that the Commission breached the principle of proportionality in that it failed to set the basic amount of the fine that was to be imposed on it at a lower level than that of at least Akzo Nobel, Degussa, Almamet and Novácke chemické závody. The applicant considers that, since the turnover which it generated in the markets to which the infringement relates was lower than that generated by Almamet and Novácke chemické závody and since it also finds itself in a difficult economic situation, for the reasons set out in the context of its fifth plea, the Commission, when determining the basic amounts of the fines, should have chosen, in its case, a lower percentage of the value of sales in relation to the infringement than 17%.
The applicant also argues that the amount of the fine must be proportional to the infringement, to the effect that the infringement has had on the market, to the need to prevent further infringements and to the ability of the undertaking in question to pay. In order to demonstrate the allegedly disproportionate nature of the fine imposed on it, the applicant refers to the particular situation of the markets to which the infringement relates, which, it alleges, are relatively small. It also argues, in the same context, that its trade performance in the sector is relatively modest, its annual turnover in the markets in question amounting to approximately EUR 13 million. The products to which the infringement relates are not high-margin products, particularly in view of their dangerous chemical nature, which entails significant safety and security overheads. The profit margins to be achieved with these products are thus traditionally narrow. The applicant considers that the fine imposed on it bears no relation to the margins which it can achieve with the products to which the infringement relates.
The applicant also makes a number of comparisons with the amount of the fine that was imposed on it in order to demonstrate that it is disproportionate. It points out that the fine in its case is equal to approximately 20% of the upper limit provided for in the second subparagraph of Article 23(2) of Regulation No 1/2003 (10% of its total turnover in the preceding business year). By contrast, the fine that would have been imposed on Akzo Nobel, had it not been granted immunity from fines, would have represented 1.1% of that upper limit. The figure is just 0.5% in Degussa’s case. In addition, the applicant mentions various cases of past infringements in respect of which the fines imposed on the undertakings concerned represented a much smaller proportion of their total turnover and of the maximum applicable fines.
Those arguments cannot succeed.
As regards, first of all, the argument relating to the differences in size between the various cartel members, it must be pointed out that, as the Commission rightly observes, the latter’s decision-making practice, to which the applicant refers, related to cases in which it applied the 1998 Guidelines, which it has since rescinded. The same applies to the case-law to which the applicant refers, which also concerns cases in which those guidelines were applied.
The 1998 Guidelines provided, in Section 1 A and B thereof, for the basic amount of the fine to be set according to a different system than that laid down in the Guidelines. Specifically, three separate scales were fixed for the basic amount, relating to minor infringements, serious infringements and very serious infringements respectively.
Admittedly, when applying that system, the Commission did, on occasion, decide to divide the undertakings that had participated in the infringement into different categories according to their overall turnover and to set a different basic amount for each of them (see, by way of example,
Archer Daniels Midland and Archer Daniels Midland Ingredients
v
Commission
, paragraph 162 above, paragraph 13). That practice of the Commission’s was approved by the Courts of the European Union as being consistent with the general principles of EU law (Case
T-15/02
BASF
v
Commission
[2006] ECR II-497
, paragraph 233 and the case-law cited; see also, to that effect,
Archer Daniels Midland and Archer Daniels Midland Ingredients
v
Commission
, paragraph 162 above, paragraphs 186 to 188). That is the case-law to which the applicant specifically refers in support of its argument.
However, as it is entitled to do (see paragraph 74 above), the Commission rescinded the 1998 Guidelines and replaced them by the Guidelines, which lay down a different system for setting the basic amount of the fine. As the Court has pointed out (see paragraph 106 above), under the new system, the basic amount of the fine for each participant is set by reference to the value of its sales in relation to the infringement. Consequently, dividing the various participants in a single infringement into different categories according to their respective sizes, or any other relevant criterion, is no longer necessary.
Moreover, as was pointed out in paragraph 111 above, point 30 of the Guidelines provides for the possibility of increasing the fine to be imposed on undertakings which have a particularly large turnover beyond the sales of goods or services to which the infringement relates, in order to ensure that the fine has a sufficiently deterrent effect. The possibility of taking into account the size and overall turnover of an undertaking when setting the basic amount of the fine is therefore not entirely excluded by the Guidelines.
Nevertheless, the Commission cannot be required systematically to take those factors into account when setting the amounts of fines.
Indeed, whilst it is clear from point 30 of the Guidelines that an increase in the fine to be imposed on an undertaking may prove necessary in order to ensure that that fine has a sufficiently deterrent effect, it does not follow that, conversely, a fine which does not represent a significant percentage of the worldwide turnover of the undertaking concerned will not have a sufficiently deterrent effect on that undertaking. A fine determined in accordance with the methodology set out in the Guidelines represents, in principle, a substantial percentage of the value of sales which the undertaking being penalised has achieved in the sector affected by the infringement. Thus, as a result of the fine, the undertaking in question will see its profits in that sector diminish significantly; it may even record losses. Even if that undertaking’s turnover in that sector represents only a small fraction of its worldwide turnover, it is not necessarily inconceivable that the decline in profits made in that sector, or even their transformation into losses, will have a deterrent effect, since a commercial undertaking generally operates in a given sector in order to generate a profit. It is thus reasonable that point 30 of the Guidelines should provide that the Commission has the power, but not the obligation, to increase the fine imposed on an undertaking which has a particularly large turnover beyond the sales of goods or services to which the infringement relates (
Novácke chemické závody
v
Commission
, paragraph 74 above, paragraphs 62 to 64).
It follows, also in light of the case-law cited in paragraph 112 above, that the comparisons which the applicant makes between the amounts of the fines imposed on the various participants in the infringement at issue, in terms of percentages of their respective overall turnovers, are incapable of establishing a breach of the principles of equal treatment and proportionality on the Commission’s part.
As regards the argument that the basic amount of the fine set for the applicant should have been smaller, in absolute terms, than that set for certain other cartel members (see paragraph 240 above), it is clear from recital 308 to the contested decision that for only two of the undertakings mentioned by the applicant, Degussa and Almamet, was a basic amount set that was, in absolute terms, lower than that set in the applicant’s case.
In Degussa’s case, that may be explained by the duration of its participation in the infringement, which was significantly shorter (four months) than that established in the applicant’s case and the fact that it participated in only one part of the cartel (the part relating to calcium carbide powder).
As regards Almamet, it is apparent from recital 15 to the contested decision that its overall turnover in the last full business year preceding the adoption of the contested decision was between EUR 40 and 50 million (as compared with EUR 257 million in the applicant’s case; see recital 17 to the contested decision). Moreover, it is apparent from recital 288 to the contested decision that the value of its sales in relation to the infringement was less than that of the applicant. The same is true of the duration of its participation in the cartel (see recital 304 to the contested decision). In light of those factors, the mere fact that the basic amounts of the fines fixed for those two undertakings was less, in absolute terms, than that fixed for the applicant constitutes a breach neither of the principle of equal treatment nor of the principle of proportionality. It is also appropriate to mention in this context that the applicant’s arguments relating to its allegedly difficult economic situation will be examined below, in the context of the Court’s analysis of its fifth plea.
Nor can the applicant’s arguments relating to the allegedly small size of the markets in question and the fact that only narrow margins can be achieved on those markets succeed.
Admittedly, according to settled case-law, in order to determine the amount of the fines that are to be imposed in the event of the infringement of the competition rules, it is necessary to take account of the duration of the infringements and of all the factors capable of affecting the assessment of their gravity, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose (Case
C-272/09 P
KME and Others
v
Commission
[2011] ECR I-12789
, paragraph 96 and the case-law cited).
However, settled case-law also holds that, whilst the amount of the fine imposed on an undertaking must be proportionate to the duration of the infringement and the other factors capable of affecting the assessment of the gravity of the infringement, including the profit that it was able to derive from those practices, the fact that an undertaking has not benefited from an infringement cannot preclude the imposition of a fine, since otherwise it would cease to have a deterrent effect (see Case
T-53/03
BPB
v
Commission
[2008] ECR II-1333
, paragraph 441 and the case-law cited).
It follows that, although the benefit which an undertaking has been able to derive from an infringement and, more generally, the profits which it has achieved on the markets to which the infringement relates are among the factors that may be taken into account in order to determine the amount of the fine, there is no obligation either on the Commission or on the Courts of the European Union when exercising their unlimited jurisdiction with regard to fines to ensure that the fine is directly proportional to the profits achieved by the undertaking in question on the markets concerned or that it does not exceed those profits.
Lastly, the various comparisons which the applicant makes between the fines imposed on various members of the cartel at issue, as a percentage of the upper limit applicable to each of them under the second subparagraph of Article 23(2) of Regulation No 1/2003, are equally irrelevant. As is clear from the case-law, that limit is a capping ceiling the only possible consequence of which is that the amount of the fine calculated on the basis of the criteria of the gravity and duration of the infringement may be reduced to the maximum permitted level. Its application implies that the undertaking concerned will not pay the fine which in principle would be payable if it were assessed on the basis of those criteria (
Dansk Rørindustri and Others
v
Commission
, paragraph 112 above, paragraph 283). It follows from this that the mere fact that the fine imposed on the applicant is very close to 10% of its worldwide turnover, while that percentage is lower for other participants in the cartel, cannot constitute a breach of the principles of equal treatment or proportionality. That consequence is inherent in the interpretation of the 10% ceiling as a capping ceiling which is applied after any reduction of the fine on account of mitigating circumstances or the principle of proportionality (see
Novácke chemické závody
v
Commission
, paragraph 74 above, paragraph 163 and the case-law cited).
In light of all of the foregoing considerations, the first complaint must be rejected.
The second complaint, alleging favourable treatment of Almamet
The applicant alleges a breach of the principle of equal treatment in that the Commission did not grant it a reduction of 20% of the fine as it did for Almamet. It also argues, in this same context, a breach of the duty to state reasons.
In recital 372 to the contested decision, the Commission observed that account was to be taken of the fact that Almamet was a very small independent trader that did not belong to a large group of companies. Almamet traded in high value materials with a rather low margin and had a ‘relatively focused product portfolio’. The Commission added that ‘[t]he fact that the imposed fine would have a relatively high impact on the financial situation of this type of company’ was also taken into account. The Commission concluded that, in light of those ‘special characteristics’ pertaining to Almamet, it considered that a reduction of the fine by 20% was appropriate, as Almamet would in any case be sufficiently deterred by a fine of that level.
In footnote 685 to the contested decision, the Commission referred to point 37 of the Guidelines, which is worded as follows:
‘Although these Guidelines present the general methodology for the setting of fines, the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology or from the limits specified in point 21.’
In granting Almamet a reduction of 20% of its fine the Commission departed from its own Guidelines. As has been made clear in settled case-law, such a departure must be consistent, inter alia, with the principle of equal treatment (
Dansk Rørindustri and Others
v
Commission
, paragraph 112 above, paragraph 211,
Schunk and Schunk Kohlenstoff-Technik
v
Commission
, paragraph 238 above, paragraph 44, and Case
T-446/05
Amann & Söhne and Cousin Filterie
v
Commission
[2010] ECR II-1255
, paragraph 146).
In recital 372 to the contested decision, the Commission listed certain ‘special characteristics’ pertaining to Almamet in order to justify the reduction in its fine. As was held in
Novácke chemické závody
v
Commission
, paragraph 74 above (paragraphs 137 to 141), an undertaking which has such characteristics is, from the point of view of a possible reduction of the fine other than in the cases specifically referred to in the Guidelines, in a different situation from that of an undertaking which does not have those characteristics.
First of all, it must be borne in mind that Article 23(2) of Regulation No 1/2003 provides, inter alia, that for each undertaking participating in an infringement of Article 81 EC, the fine is not to exceed 10% of its total turnover in the preceding business year. According to the case-law, the ceiling in respect of turnover seeks to prevent fines imposed by the Commission from being disproportionate in relation to the size of the undertaking concerned (Joined Cases
100/80 to 103/80
Musique Diffusion française and Others
v
Commission
[1983] ECR 1825
, paragraph 119, and Case
C-76/06 P
Britannia Alloys & Chemicals
v
Commission
[2007] ECR I-4405
, paragraph 24).
That ceiling is not, however, sufficient to prevent the fine imposed in the case of a trader trading in high value materials with a low margin, such as Almamet, from being potentially disproportionate. Owing to the high value of the materials concerned, such an undertaking may have a disproportionately high turnover in relation to its profits and assets, which alone will be used to pay the fine.
Secondly, since, applying the methodology of the Guidelines, the fine is to be determined taking into account as a starting point a proportion of the value of sales achieved by the undertaking in question on the market to which the infringement relates, the risk of a disproportionate fine — one that represents a very significant part of that undertaking’s worldwide turnover — is particularly high in the case of an undertaking which, like Almamet, has a ‘relatively focused product portfolio’.
Thirdly, the fact that Almamet was a very small undertaking which did not belong to a large group is also relevant, in so far as it must deal with the fine alone, since no other company is jointly and severally liable for payment of that fine or generally in a position to offer support in that respect.
In light of those considerations it must first of all be held that, contrary to the applicant’s assertions, the reasons for the Commission’s decision to reduce Almamet’s fine were stated to the requisite legal standard.
The Court must also dismiss as irrelevant the applicant’s argument relating to the fact that, as the Commission indeed noted in recital 371 to the contested decision, Almamet did not fulfil the conditions laid down in point 35 of the Guidelines in order to benefit from a reduction in its fine on the ground of its inability to pay. Suffice it to note in this connection that it was pursuant to point 37 of the Guidelines that the Commission decided to grant Almamet a reduction in its fine. Equally irrelevant is the fact, referred to by the applicant, that, as is apparent from recital 152 to the contested decision, Almamet partly disputed the existence of the infringement. As regards the applicant’s assertion that Almamet had a leading role in the infringement, that is not correct (see paragraphs 97 to 104 above). However, even if it were correct, it would also be irrelevant.
That being so, it is necessary to examine the arguments which the applicant puts forward in order to demonstrate that it was in a comparable situation to Almamet and deserved a reduction in its fine on the same grounds.
First, the applicant submits that, like Almamet, it conducts business on the markets in question as an independent undertaking of ‘relatively small’ size. It adds that, in reality, it is a smaller player than Almamet on the markets in question: according to the Commission, its sales on those markets are in the order of EUR 10 million to 15 million, by comparison with EUR 20 million to 25 million in Almamet’s case.
That argument is insufficient to justify the conclusion that the applicant is in a similar position to Almamet. First of all, the Commission took into consideration not only Almamet’s small size, but also the fact that it was a small trader. As a trader, it had no influence whatsoever over the prices which it paid for the products it procured and sold. Its only influence was over its profit margin, and thus over the final price at which it sold its products to its customers. As a result, although the value of sales achieved by Almamet in relation to the infringement and, more generally, its overall turnover might appear to be reasonably high, in fact the greater proportion of its income had to be paid over directly to third parties, namely its suppliers. The applicant is not a trader but sells products which it produces itself. It is not, therefore, in the same situation.
Next, it must be observed that, although the applicant is significantly smaller, in terms of overall size, than some of the other large undertakings that participated in the cartel, there is nevertheless a marked difference between its overall turnover and that of Almamet (see paragraph 254 above). Moreover, as the Commission rightly notes, it is apparent from a table which the applicant annexed to its application that, during the period of the infringement, it employed more than 600 people. It can therefore scarcely be regarded as a small undertaking.
Secondly, the applicant submits that, like Almamet, its business involves high value materials with a very low margin. Its product portfolio is also highly focused.
It must be observed that the applicant has presented this argument very succinctly and has not supported it with any detailed explanations or relevant evidence. In particular, the applicant has failed to provide any details or evidence of its profit margins. It also failed to respond, in its reply, to the Commission’s assertion that its product portfolio was not comparable to that of Almamet.
In addition, the fact that Almamet is a trader in products which it procures from other undertakings, while the applicant sells products which it produces itself is, once more, relevant. As was pointed out in paragraph 274 above, it was precisely for that reason that the high value of the products which Almamet sells and the very narrow margins which it achieves were regarded as relevant. In the case of the applicant, which is not a trader but a producer, those two factors do not, in the absence of detailed explanations of its production costs, which it has failed to provide, have the same relevance as they do in Almamet’s case.
Thirdly, the applicant argues that the fine imposed on it will similarly have a quite serious effect on its own financial situation. It submits that it has to bear high production, maintenance, stocking and investment costs and a large fine will therefore affect it much more than it would Almamet.
That argument, general and entirely unsubstantiated as it is, must also be rejected for the reasons set out in paragraph 278 above.
Since the applicant has put forward no other arguments to show that its own situation was similar to that of Almamet, it must be concluded that, given the different situations in which they found themselves, the Commission cannot be criticised for breaching the principle of equal treatment in granting to Almamet, but not to the applicant, a reduction in its fine and doing so on the grounds set out in recital 372 to the contested decision. Consequently, the Court must reject the applicant’s second complaint and the fourth plea in its entirety. In that it must reject all of the arguments of the applicant’s which it has just examined, there is no justification for the Court, in the exercise of its unlimited jurisdiction, to reduce the fine imposed on the applicant beyond the reduction referred to in paragraph 231 above.
The fifth plea, alleging an unlawful failure on the Commission’s part to grant the applicant a reduction in the amount of its fine on the grounds of its inability to pay and the particular features of the case
The applicant argues that the conditions for significantly reducing the fine that was imposed on it, in accordance with point 35 of the Guidelines, or at the very least under point 37 of the Guidelines, given the particular features of its situation, were fulfilled. It complains that the Commission failed to have sufficient regard to its limited ability to pay, despite the conclusive submissions which it made to that institution. It therefore considers that the Commission infringed the Guidelines and made a manifest error of assessment by refusing it a reduction in its fine. That is all the more true since the Commission granted Almamet a reduction despite the fact that the applicant’s individual economic situation implies a much greater risk potential.
The Guidelines
Points 35 and 37 of the Guidelines are worded as follows:
‘35.
In exceptional cases, the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context. It will not base any reduction granted for this reason in the fine on the mere finding of an adverse or loss-making financial situation. A reduction could be granted solely on the basis of objective evidence that imposition of the fine as provided for in these Guidelines would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value.
…
37.
Although these Guidelines present the general methodology for the setting of fines, the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology or from the limits specified in point 21.’
The contested decision
As is clear from a combined reading of recitals 363 and 373 to the contested decision, the applicant was one of the undertakings that relied on point 35 of the Guidelines during the administrative procedure. After setting out, in recitals 364 to 368, a number of general considerations applicable to all of the undertakings relying on point 35, the Commission addressed the applicant’s case in recitals 373 to 374, stating as follows:
‘(373)
The analysis of the financial data provided by Donau Chemie … leads to the conclusion that Donau Chemie is a viable undertaking with a low risk of bankruptcy. The impact of the fine is not considered to irretrievably jeopardise the economic viability of Donau Chemie and cause its assets to lose all their value. Therefore, Donau Chemie’s claim [regarding] inability to pay the fine is not accepted.
(374)
Donau Chemie often referred to its catastrophic year in 2005, when its power plant was demolished, but this event no longer endangers the viability of the undertaking to the extent that it would be unable to pay the fine imposed by this Decision.’
Preliminary remarks regarding point 35 of the Guidelines
It has repeatedly been held that the Commission is not, in principle, required, when determining the amount of the fine, to take account of an undertaking’s financial losses, since recognition of such an obligation would be tantamount to giving an unjustified competitive advantage to undertakings least well adapted to the market conditions (
Dansk Rørindustri and Others
v
Commission
, paragraph 112 above, paragraph 327, Case
T-213/00
CMA CGM and Others
v
Commission
[2003] ECR II-913
, paragraph 351, and
Tokai Carbon and Others
v
Commission
, paragraph 110 above, paragraph 370).
Furthermore, it has consistently been held that the fact that a measure adopted by a European Union authority leads to the insolvency or liquidation of a given undertaking is not prohibited as such by EU law. Although the liquidation of an undertaking in its existing legal form may adversely affect the financial interests of the owners, investors or shareholders, it does not mean that the personal, tangible and intangible elements represented by the undertaking would also lose their value (
Tokai Carbon and Others
v
Commission
, paragraph 110 above, paragraph 372, Case
T-64/02
Heubach
v
Commission
[2005] ECR II-5137
, paragraph 163, and Case
T-452/05
BST
v
Commission
[2010] ECR II-1373
, paragraph 96).
It cannot be accepted that, in adopting point 35 of the Guidelines, the Commission imposed on itself any obligation that runs counter to that case-law. That is evidenced by the fact that point 35 makes no reference to the insolvency of an undertaking but covers situations arising ‘in a specific social and economic context’ in which the imposition of a fine ‘would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value’ (
Novácke chemické závody
v
Commission
, paragraph 74 above, paragraph 188, and
Ecka Granulate et non ferrum Metallpulver
v
Commission
, paragraph 139 above, paragraph 96).
It follows from this that the mere fact that the imposition of a fine for infringements of the competition rules might lead to the insolvency of the undertaking concerned is not sufficient cause for the application of point 35 of the Guidelines. It is apparent from the case-law cited in paragraph 286 above that, while insolvency adversely affects the financial interests of the owners or investors concerned, it does not necessarily mean that the undertaking in question will disappear. That undertaking may continue to exist as such, either — in the case of the recapitalisation of the company declared insolvent — as a legal person operating that undertaking, or — in the case of the acquisition by another entity of all its assets and thus of the undertaking — as an entity carrying on an economic activity (
Novácke chemické závody
v
Commission
, paragraph 74 above, paragraph 189, and
Ecka Granulate et non ferrum Metallpulver
v
Commission
, paragraph 139 above, paragraph 97).
Consequently, point 35 of the Guidelines must be construed, in particular in light of the reference to the loss of all value of the assets of the undertaking concerned, as envisaging a situation in which the acquisition of the undertaking, or at least of its assets, referred to in paragraph 288 above appears unlikely or even impossible. If that were the case, the assets of the insolvent undertaking would be offered for sale individually, and it is likely that many of them would not find a buyer or, at best, would be sold only at a heavily reduced price; accordingly it seems legitimate to refer, as does point 35 of the Guidelines, to the loss of all their value (
Novácke chemické závody
v
Commission
, paragraph 74 above, paragraph 190, and
Ecka Granulate et non ferrum Metallpulver
v
Commission
, paragraph 139 above, paragraph 98).
It should also be borne in mind that the application of point 35 of the Guidelines also requires, according to its wording, a ‘specific social and economic context’. According to the case-law, the consequences which payment of a fine could have, in particular, by leading to an increase in unemployment or deterioration in the economic sectors upstream and downstream of the undertaking concerned, constitute such a context (Case
C-308/04 P
SGL Carbon
v
Commission
[2006] ECR I-5977
, paragraph 106, and
Novácke chemické závody
v
Commission
, paragraph 74 above, paragraph 192).
If the conditions referred to in paragraphs 289 and 290 are satisfied, it can indeed be argued that the imposition of a fine which is likely to give rise to the disappearance of the undertaking concerned is contrary to the principle of proportionality which the Commission must observe whenever it decides to impose fines under competition law (
Novácke chemické závody
v
Commission
, paragraph 74 above, paragraph 193, and
Ecka Granulate et non ferrum Metallpulver
v
Commission
, paragraph 139 above, paragraph 100).
Moreover, since the Commission refers in its arguments to the broad discretion which it enjoys under point 35 of the Guidelines, it is necessary to point out, first of all, that the use of the word ‘may’, rather than ‘must’, in point 35 should not be given too much significance. The word should not be understood as meaning that the Commission may arbitrarily refuse to grant a reduction in a fine where all the conditions set out in point 35 are fulfilled and where such a reduction appears to be consistent with the general principles of law which must be observed when setting fines. The use of the word ‘may’ is, rather, an additional indication of the flexibility which the Commission must be allowed when laying down rules of practice such as the Guidelines (
Ecka Granulate et non ferrum Metallpulver
v
Commission
, paragraph 139 above, paragraph 48).
Secondly, it must be borne in mind that, in accordance with the unlimited jurisdiction which the General Court enjoys in matters relating to fines (see paragraph 58 above), it may substitute its own assessment for that of the Commission also in so far as concerns examination of the question whether an applicant must be allowed a reduction in its fine under point 35 of the Guidelines.
Bearing all the foregoing considerations in mind, the Court must now examine whether, as the applicant argues, the submissions which it made to the Commission justified a reduction in the amount of its fine under point 35 of the Guidelines.
Application of point 35 of the Guidelines
The applicant submits that its entire group of undertakings is in an extremely difficult economic situation. That is reflected in its ordinary operating results, which are in marked decline, falling from EUR 7.016 million in the 2007 financial year to just EUR 1.686 million in the 2008 financial year. The annual consolidated results of the applicant’s group also show a distinct deterioration, with losses carried forward to the balance sheet for the financial year 30 September 2007 to 30 September 2008 exceeding EUR 2 million. Moreover, the net financial debts of the applicant’s group have increased from EUR 14.2 million in the 2005 financial year to EUR 30.4 million in the 2008 financial year. It adds that the branch of its undertaking active in the production of calcium carbide has been making a loss for a number of years. Accumulated losses for the period between 1999 and 2006 amount to EUR 15.94 million.
The applicant also points out that, as early as the administrative procedure, it had drawn attention to the fact that its private hydro-electricity plant in Wiesberg (Austria) had been completely destroyed by flooding in the summer of 2005. The operation of its calcium carbide production plant in Landeck (Austria) is dependent on electricity generated by the Wiesberg plant and it had only been possible to save the plant in Landeck with financial assistance from the Austrian authorities. The applicant had, however, had to bear a large proportion of the costs of rebuilding the hydro-electricity plant. As a result of this natural disaster, the applicant had sustained damage in 2005 valued at approximately EUR 20 million and that had had an impact on the negative results recorded by the factory at Landeck, which in 2005 rose to EUR –11.92 million, a situation which is continuing to affect the applicant’s financial health.
In addition, the applicant has given details of significant investment projects which will shortly be needed in several of its undertaking’s locations. The overall cost of investments planned for the Landeck production plant up to 2016 will probably reach EUR 20.17 million. Those investments are vital to the continued operation of the factory and to preserving jobs at the factory in the long term. Since the applicant lacks its own funds, the investments will have to be funded by borrowing. The imposition of the fine, the payment of which will require the applicant to borrow further, will prevent it from obtaining the necessary funding and aggravate its already precarious economic situation and considerably weaken its competitive position in the markets for calcium carbide. Furthermore, the fine will cause the partial or total closure of some of the applicant’s large production plants and, as a result, will entail the loss of many jobs.
The applicant refers in particular to the position of its production plant at Landeck, which employs 70 people directly and on which a number of other jobs are indirectly dependent. It states that, in 2006, it made comparative calculations of the economic results which would ensue from continued operation of the plant and from its closure and the sale to third parties of the electricity produced at its plant in Wiesberg, which is normally consumed by the Landeck production plant. Those calculations demonstrated that continuing the operation of the Landeck plant would lead to losses of EUR 513 000, while its closure and the sale of the electricity produced to third parties would return profits of EUR 773 000. Nevertheless, conscious of its social responsibilities, it has not yet closed the production plant at Landeck. The imposition of the fine at issue, however, removes any reason for the continued production of calcium carbide at the Landeck plant and will lead to its closure.
In view of the arguments which the applicant puts forward, it must be recalled that, in its judgment in
Ecka Granulate et non ferrum Metallpulver
v
Commission
, paragraph 139 above (paragraph 112), the General Court held that, for the purpose of applying point 35 of the Guidelines, it was not sufficient to demonstrate that the undertaking in question would be declared insolvent if a fine were to be imposed. According to the actual wording of point 35, there must be ‘objective evidence that imposition of the fine … would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value’, which is not automatically the case where the company operating the business in question becomes insolvent. An applicant cannot therefore seek to have point 35 of the Guidelines applied unless it provides objective evidence of that eventuality, which is a prerequisite for the application of point 35.
In the present case, it must be observed that the applicant has not even asserted or proven that the imposition of the fine at issue would lead to its insolvency. Still less has it established — or even asserted — that in the event of such insolvency its assets would lose all their value, as is required by point 35 of the Guidelines.
Indeed, according to the applicant’s own submissions, as summarised in paragraph 295 above, its ordinary operating results have remained positive in the 2008 financial year, despite a sharp decline. In other words, the applicant has recorded profits, rather than losses. As regards the negative consolidated results in 2007 and in 2008, irrespective of whether or not those may be taken into consideration for the purposes of applying point 35 of the Guidelines, inasmuch as they do not relate to the applicant alone, as a legal entity, but also to other entities within the group whose integration within the economic unit constituted by the applicant’s undertaking remains unclear, it is apparent from the comparative balance sheet for those two financial years, which the applicant annexed to its application, that the capital of the applicant’s group has remained intact, despite the losses recorded, the reserves being amply sufficient to absorb the losses. Moreover, that comparative balance sheet discloses a slight improvement in the situation in 2008, the losses carried forward to the balance sheet having diminished from EUR 2.63 million to approximately 2.17 million.
As regards its assertions in relation to the loss-making nature of the branch of its undertaking that produces calcium carbide, to the destruction of its hydro-electricity plant in Wiesberg and to the situation of the production plant at Landeck, the applicant has failed to explain the relevance of those matters to the application of point 35 of the Guidelines. Point 35 refers to the ability to pay of the whole of the undertaking concerned, not merely of certain of its branches. The applicant has not asserted that the alleged economic difficulties of the production plant at Landeck are such that they could lead to insolvency. Moreover, it must be observed that, even if the applicant were to be granted a reduction in its fine, there is nothing to guarantee that, in exchange, it would refrain from closing the Landeck production plant, particularly as it has itself asserted that such a closure would be in its financial interests.
Lastly, the applicant itself states that the hydro-electricity plant at Wiesberg, which was destroyed in 2005, has since been re-commissioned, thanks in part to financial assistance from the Austrian authorities. The Commission cannot, therefore, be criticised for having found, in recital 374 to the contested decision, that that event could no longer threaten the applicant’s viability.
It follows from the foregoing considerations that the Commission rightly, and without infringing point 35 of the Guidelines, rejected the applicant’s request for a reduction in its fine. That being so, it is necessary for the Court also to consider whether a reduction might have been justified in accordance with point 37 of the Guidelines, to which the applicant also refers in its arguments.
Application of point 37 of the Guidelines
On the basis of the arguments summarised in paragraphs 296 to 298 above, the applicant argues that, in view of the ‘particular features’ of the case, the Commission ought, at least, to have granted it a reduction in the fine pursuant to point 37 of the Guidelines, as it did for Almamet. In this context it repeats the arguments by which it alleged a breach of the principle of equal treatment and of the duty to state reasons inasmuch as it was refused a reduction in its fine while Almamet was granted such a reduction. However, those arguments must be rejected for the reasons already given in paragraphs 261 to 281 above.
The Guidelines form rules of practice from which the Commission may not depart in an individual case without giving reasons which are compatible with the principle of equal treatment (Case
C-397/03 P
Archer Daniels Midland and Archer Daniels Midland Ingredients
v
Commission
[2006] ECR I-4429
, paragraph 91, and
KME Germany and Others
v
Commission
, paragraph 58 above, paragraph 127). The possibility cannot be ruled out, therefore, that the Commission might, in a given case, be obliged to depart from its own guidelines, although it would have to give reasons for so doing that are compatible with the general principles of law which it must observe when setting fines, including, in particular, the principle of equal treatment (
Ecka Granulate et non ferrum Metallpulver
v
Commission
, paragraph 139 above, paragraph 42).
Indeed, in accordance with the hierarchy of legal rules, an institution of the European Union cannot, by means of self-imposed, internal rules of practice, wholly relinquish the exercise of the discretion conferred upon it by a provision such as, in this case, Article 23 of Regulation No 1/2003 (see
Ecka Granulate et non ferrum Metallpulver
v
Commission
, paragraph 139 above, paragraph 43 and the case-law cited).
It must also be borne in mind that, in setting the fines which it is to impose in respect of infringement of the rules relating to competition, the Commission is required to observe, inter alia, the principle of proportionality. Guidelines on setting fines which allowed the Commission no flexibility in deciding what amount is appropriate in each individual case would not be consistent with the principle of proportionality, since they could lead to the imposition of fines that significantly exceed what is appropriate and necessary to attain the objective pursued or, conversely, fines that are clearly too small to attain that objective (
Ecka Granulate et non ferrum Metallpulver
v
Commission
, paragraph 139 above, paragraph 45).
That is the reason why, in point 37 of the Guidelines, the Commission quite rightly reserved the right to depart from the method for setting fines laid down in those Guidelines and thus to set the fine in any given case at a level different from that which would result from the application of that method, where the particular features of the case so require. That level might be higher or lower than the sum calculated in accordance with the method laid down in the Guidelines.
Moreover, the General Court, which has unlimited jurisdiction in the matter, pursuant to which it may substitute its own assessment for that of the Commission, and which, furthermore, is not bound by the Guidelines and may depart from them provided it gives reasons for so doing in its judgment (see paragraph 60 above), may reduce a fine to a level below that which results from the application of the Guidelines where the circumstances of the case before it justify such action. Nevertheless, the applicant must cite grounds which are relevant and capable of justifying such a reduction and substantiate those grounds with evidence (see, to that effect,
KME Germany and Others
v
Commission
, paragraph 58 above, paragraph 131).
In the present case, there is nothing in the arguments put forward by the applicant in the context of the present plea to justify the Court’s taking such action to reduce the amount of the fine. As the Court has already held, the economic difficulties which the applicant alleges, even if they were to be established, fail to prove that it is facing the risk of insolvency or, still less, the total loss of value of its assets. In view also of the case-law cited in paragraphs 285 and 286 above, the difficulties alluded to cannot, in and of themselves, justify any decision by the Court, taken in the exercise of its unlimited jurisdiction, to reduce the fine.
As regards the remainder of the applicant’s arguments, relating to the difficulties encountered by the Landeck production plant, it must be held that the applicant has failed to establish any real connection between the reduction in the amount of the fine which it seeks and the continued operation of the plant and the preservation of the jobs that are dependent on it. As the Court has already pointed out, there is nothing to prevent the applicant from deciding at any moment to close the Landeck production plant, even if it is granted a reduction in its fine. That being so, it must be held that those arguments equally fail to justify any decision by the Court, taken in the exercise of its unlimited jurisdiction, to reduce the fine.
Since all of the arguments which the applicant has put forward in the context of the fifth plea must be rejected, the Court must dismiss that plea and hold that there is no justification for it to exercise its unlimited jurisdiction and grant the applicant, on that basis, any further reduction in the fine imposed on it.
In light of all the foregoing considerations, Article 2(c) of the contested decision must be annulled in so far as the Commission applied a rate of reduction of 35% in order to set the final amount of the fine, the fine imposed on the applicant must be fixed at EUR 4.35 million, that amount being regarded by the Court, in the exercise of its unlimited jurisdiction, as appropriate, having regard to the circumstances of the case and in particular the gravity and duration of the infringement found by the Commission and the overall resources of the applicant, and the remainder of the action must be dismissed.
Costs
Pursuant to Article 87(3) of the Rules of Procedure, the General Court may order that the costs be shared or that each party bear its own costs where each party succeeds on some and fails on other heads.
Since the action has been only partly successful, the Court considers it fair, having regard to the circumstances of the case, to order the applicant to bear 90% of its own costs and to pay 90% of the costs incurred by the Commission. The Commission shall bear 10% of its own costs and pay 10% of the applicants’ costs.

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

1.
Fixes the fine imposed on Donau Chemie AG in Article 2(c) of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium-based reagents for the steel and gas industries) at EUR 4.35 million;

2.
Dismisses the remainder of the action;

3.
Orders Donau Chemie to bear 90% of its own costs and to pay 90% of the European Commission’s costs and orders the Commission to bear 10% of its own costs and pay 10% of Donau Chemie’s costs.

Czúcz
Labucka
Gratsias
Delivered in open court in Luxembourg on 14 May 2014.
[Signatures]
(
*1
)	Language of the case: German.