CELEX: 62008TJ0551
Competition
Agreements, decisions and concerted practices
Market for paraffin waxes
Decision finding an infringement of Article 81 EC
Price-fixing
Evidence of the infringement
2006 Guidelines on the method of setting fines
Reference period
Calculation of the value of sales
Gravity of the infringement
Concentration occurring during the infringement period
Equal treatment
Proportionality

Facts giving rise to the dispute
1.
Administrative procedure and adoption of the contested decision
By Decision C(2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle Waxes) (‘the contested decision’), the Commission of the European Communities found that the applicant, H&R ChemPharm GmbH, had, together with other undertakings, infringed Article 81(1) EC and Article 53(1) of the Agreement on the European Economic Area (EEA) by participating in an agreement on the paraffin waxes market in the EEA and on the German market for slack wax.
The addressees of the contested decision are the following companies: Eni SpA, Esso Deutschland GmbH, Esso Société Anonyme Française, ExxonMobil Petroleum and Chemical BVBA and Exxon Mobil Corp. (together ‘ExxonMobil’), H&R ChemPharm, H&R Wax Company Vertrieb GmbH and Hansen & Rosenthal KG (together ‘H&R’), Tudapetrol Mineralölerzeugnisse Nils Hansen KG (‘Tudapetrol’), MOL Nyrt., Repsol YPF Lubricantes y Especialidades SA, Repsol Petróleo SA and Repsol YPF SA (together ‘Repsol’), Sasol Wax GmbH, Sasol Wax International AG, Sasol Holding in Germany GmbH and Sasol Ltd (together ‘Sasol’), Shell Deutschland Oil GmbH, Shell Deutschland Schmierstoff GmbH, Deutsche Shell GmbH, Shell International Petroleum Company Ltd, The Shell Petroleum Company Ltd, Shell Petroleum NV and The Shell Transport and Trading Company Ltd (together ‘Shell’), RWE Dea AG and RWE AG (together ‘RWE’) and Total SA and Total France SA (‘Total’) (recital 1 to the contested decision).
Paraffin waxes are manufactured in refineries from crude oil. They are used for the production of a variety of products such as candles, chemicals, tyres and automotive products as well as in the rubber, packaging, adhesive and chewing-gum industries (recital 4 to the contested decision).
Slack wax is the raw material required for the manufacture of paraffin waxes. It is produced in refineries as a by-product in the manufacture of base oils from crude oil. It is also sold to end-customers, to producers of particle boards for instance (recital 5 to the contested decision).
The Commission began its investigation after Shell Deutschland Schmierstoff informed it, by letter of 17 March 2005, of the existence of a cartel and submitted an application to it for immunity under the Commission notice on the non-imposition or reduction of fines in cartel cases (
OJ 2002 C 45, p. 3
; ‘the 2002 Leniency Notice’) (recital 72 to the contested decision).
On 28 and 29 April 2005, the Commission, pursuant to Article 20(4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (
OJ 2003 L 1, p. 1
), conducted unannounced inspections at the premises of ‘H&R /Tudapetrol’, ENI, MOL and also the premises of companies in the Sasol, ExxonMobil, Repsol and Total groups (recital 75 to the contested decision).
Between 25 and 29 May 2007, the Commission sent a statement of objections to the companies referred to at paragraph 2 above, including the applicant (recital 85 to the contested decision). By letter of 14 August 2007, the companies in the H&R group, including the applicant, and Tudapetrol sent a joint reply to the statement of objections.
On 10 and 11 December 2007, the Commission held a hearing during which the companies in the H&R group, including the applicant, and Tudapetrol were jointly represented (recital 91 to the contested decision).
In the contested decision, in the light of the evidence available to it, the Commission considered that the addressees, which constituted the majority of the producers of paraffin waxes and slack wax in the EEA, had participated in a single, complex and continuous infringement of Article 81 EC and Article 53 of the EEA Agreement, covering the EEA territory. That infringement consisted in agreements or concerted practices relating to price-fixing and the exchange and disclosure of sensitive business information affecting paraffin waxes (‘the main aspect of the infringement’). As regards RWE (later Shell), ExxonMobil, MOL, Repsol, Sasol and Total, the infringement relating to paraffin waxes also concerned customer-sharing or market-sharing (‘the second aspect of the infringement’). Furthermore, the infringement committed by RWE, ExxonMobil, Sasol and Total also related to slack wax sold to end-customers on the German market (‘the slack wax aspect of the infringement’) (recitals 2, 95 and 328 to and Article 1 of the contested decision).
The unlawful practices took form at anti-competitive meetings called ‘technical meetings’ or sometimes ‘Blauer Salon’ meetings by the participants and at ‘slack wax meetings’ devoted specifically to questions relating to slack wax.
The amount of the fines imposed in the present case was calculated on the basis of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (
OJ 2006 C 210, p. 2
) (‘the 2006 Guidelines’), which was in force when the statement of objections was notified to the companies referred to at paragraph 2 above.
The contested decision includes, in particular, the following provisions:
‘Article 1
The following undertakings have infringed Article 81(1) [EC] and — from 1 January 1994 — Article 53 of the EEA Agreement by participating, for the periods indicated, in a continuing agreement and/or concerted practice in the paraffin waxes sector in the common market and, as of 1 January 1994, within the EEA:
…
Tudapetrol Mineralölerzeugnisse Nils Hansen KG: from 24 March 1994 to 30 June 2002;
H&R Wax Company Vertrieb GmbH: from 1 January 2001 to 28 April 2005;
Hansen & Rosenthal KG: from 1 January 2001 to 28 April 2005;
H&R ChemPharm GmbH: from 1 July 2001 to 28 April 2005;
…
Article 2
For the infringement referred to in Article 1, the following fines are imposed:
ENI SpA: EUR 29 120 000;
Esso Société Anonyme Française: EUR 83 588 400,
of which jointly and severally with:
ExxonMobil Petroleum and Chemical BVBA and ExxonMobi1 Corporation for EUR 34 670 400, of which jointly and severally with Esso Deutschland GmbH for 27081600 EUR;
Tudapetrol Mineralölerzeugnisse Nils Hansen KG: EUR 12 000 000;
Hansen & Rosenthal KG jointly and severally with H&R Wax Company Vertrieb GmbH: EUR 24 000 000,
of which jointly and severally with:
H&R ChemPharm GmbH for EUR 22 000 000;
MOL Nyrt.: EUR 23 700 000;
Repsol YPF Lubricantes y Especialidades S.A. jointly and severally with Repsol Petróleo S.A. and Repsol YPF S.A.: EUR 19 800 000;
Sasol Wax GmbH: EUR 318 200 000,
of which jointly and severally with:
Sasol Wax International AG, Sasol Holding in Germany GmbH and Sasol [Ltd] for EUR 250 700 000;
Shell Deutschland Oil GmbH, Shell Deutschland Schmierstoff GmbH, Deutsche Shell GmbH, Shell International Petroleum Company Limited, the Shell Petroleum Company Limited, Shell Petroleum N.V. and the Shell Transport and Trading Company Limited: EUR 0;
RWE-Dea AG jointly and severally with RWE AG: EUR 37 440 000;
Total France SA jointly and severally with Total SA: EUR 128 163 000.’
2.
Links between the H&R group and Tudapetrol
In the contested decision the Commission stated that:
‘(22)
The [H&R group] is active world-wide in petroleum based products. Tudapetrol … was a sales and distributing company for H&R of paraffin waxes and slack wax. The investigation shows that H&R and Tudapetrol are two separate and independent undertakings, however due to both the close personal links (as further explained below one of the general partners of Tudapetrol, [Mr H.], was also employed by H&R) and distribution links between H&R and Tudapetrol, they are hereafter referred to as “H&R/Tudapetrol”. The H&R/Tudapetrol group is located primarily at two sites in Germany — Hamburg and Salzbergen.
(23)
H&R/Tudapetrol’s entry into the paraffin business took place on 24 March 1994, when, as part of a joint acquisition, Hansen & Rosenthal KG acquired a refinery (SRS GmbH) for lubricants in Salzbergen (Germany) from Wintershall AG, a subsidiary of BASF, and transformed it into a production company.
(24)
The Salzbergen refinery (SRS GmbH) is run by H&R Chemisch-Pharmazeutische Spezialitäten GmbH, a 100% subsidiary of H&R ChemPharm GmbH. H&R ChemPharm GmbH is in turn a 100% subsidiary of H&R Wasag AG. The main shareholder of H&R Wasag AG is H&R Beteiligung GmbH (the remaining shares are dispersed among many owners). H&R Beteiligung GmbH is in turn owned by H&R Wax Company Vertrieb GmbH, a 100% subsidiary of Hansen & Rosenthal KG (the ultimate parent company of H&R).
(25)
Paraffin waxes and slack wax were originally distributed by Tudapetrol, which is an independent company (Komplementäre (general partners) are [Mr Ha., Mr Han. and Mr H.] and Kommanditist (limited partner) is [Mr Hans.]). On 1 May 2000, the distribution was transferred to H&R Wax Company Vertrieb Komplementär GmbH & Co. KG, and since 1 January 2001, the distribution has been managed by H&R Wax Company Vertrieb …. However, the investigation has revealed that even if Tudapetrol to a large extent left the paraffin business on 1 May 2000, it retained some paraffin customers.
…
(28)
Individuals who were in charge of the management of H&R/Tudapetrol group’s paraffin waxes and slack wax business and represented H&R/Tudapetrol or were aware of the arrangements described in this Decision include:
[Mr H.]: Trainee at SRS GmbH 1994-1997, Sales and Marketing Department, Tudapetrol …, 1997-2002; Sales Manager, H&R Wax Company Vertrieb GmbH 2001 to date; (Manager, H&R Wax Company Vertrieb GmbH, since 2002);
[Mr G.]: Product Manager, SRS GmbH, 1994-2001; Product Manager, H&R Management & Service GmbH/H&R ChemPharm GmbH, 2001 to date (in 2002 H&R Management & Service GmbH was renamed H&R ChemPharm GmbH); Sales Manager, Tudapetrol …, 1999-2000; Sales Manager, H&R Wax Company Vertrieb GmbH, 2001 to date;
[Mr W.]: Sales Manager, Tudapetrol …, 1994-1998; Advisor, Tudapetrol …, 1999; Sales Manager, SRS GmbH (from July 2001 employed by H&R Management & Service GmbH, which was renamed H&R Chem-Pharm GmbH in 2002), 2000-2001; prior to 1994, Sales Manager at Wintershall AG.
(29)
In [the contested decision], and unless otherwise specified, companies of the Hansen & Rosenthal/Tudapetrol group which participated in the cartel will be referred to as “H&R/Tudapetrol”’.
Procedure and forms of order sought
By application lodged at the Court Registry on 15 December 2008, the applicant brought the present action.
By letter lodged at the Court Registry on 12 August 2009, the applicant submitted a preliminary request within the meaning of Article 114(1) of the Rules of Procedure of the Court, asking that the corrigendum to the defence lodged by the Commission on 28 July 2009 be removed from the file.
By order of the Court (Fourth Chamber) of 28 October 2009, the preliminary request was joined to the substance of the case.
Acting upon a report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure. In the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, the Court invited the parties to provide written answers to a number of questions and to produce certain documents. The parties answered the questions within the prescribed period and produced certain documents. However, the Commission stated that it could not produce either a copy or a transcript of certain confidential statements lodged in the context of its leniency programme.
By order of 12 June 2012, adopted pursuant to the first paragraph of Article 24 of the Statute of the Court of Justice of the European Union and Article 65(b) and Article 66(1) of the Rules of Procedure, the Court (Third Chamber) ordered the Commission to produce the transcripts or copies of the confidential statements referred to at paragraph 17 above. Those documents could be consulted by the applicant’s lawyers at the Court Registry before the hearing.
The parties presented oral argument and answered the questions put to them by the Court at the hearing on 10 July 2012.
Owing to the factual links with Cases T‑540/08
Esso and Others
v
Commission
, T‑541/08
Sasol and Others
v
Commission
, T‑543/08
RWE and RWE Dea
v
Commission
, T‑544/08
Hansen & Rosenthal and H&R Wax Company Vertrieb
v
Commission
, T‑548/08
Total
v
Commission
, T‑550/08
Tudapetrol
v
Commission
, T‑558/08
Eni
v
Commission
, T‑562/08
Repsol YPF Lubricantes y especialidades and Others
v
Commission
and T‑566/08
Total Raffinage et Marketing
v
Commission
, and to the fact that the legal points raised were closely related, the Court decided not to deliver judgment in the present case until after the hearings in those related cases, the last of which took place on 3 July 2013.
The applicant claims that the Court should:
—
principally, annul the contested decision in so far as it concerns the applicant;
—
in the alternative, reduce in an appropriate manner the amount of the fine imposed on the applicant in the contested decision;
—
order the Commission to pay the costs.
The Commission contends that the Court should:
—
dismiss the action in its entirety, including the alternative request;
—
order the applicant to pay the costs.
Law
1.
The request that a document be removed from the file
As regards the applicant’s request that the corrigendum to the defence, lodged by the Commission on 28 July 2009, be removed from the file, it should be observed that that corrigendum corrects a number of drafting errors in the defence, mostly in the footnotes, the inaccuracy of which could be readily detected both by the applicant and by the Court on the basis of the contested decision and the other items and documents lodged by the parties during the proceedings before the Court.
At paragraph 93 of the original version of the defence, the Commission asks the Court to ‘reject the applicant’s three pleas as unfounded’, whereas in the corrigendum it asks that four pleas be rejected. The inaccuracy of the original version was readily detectable by both the Court and the applicant, however, since at paragraph 94 of the original version of the defence the Commission asked the Court to dismiss the action in its entirety.
It must therefore be concluded that the sole purpose of the corrigendum was to facilitate the Court’s work and that the drafting errors which it was intended to correct were readily detectable by both the applicant and the Court. Furthermore, none of the corrections made by the Commission affected the substance of its argument and the applicant cannot therefore validly claim that the addition of the corrigendum to the file could restrict its rights of defence.
In any event, the Court sent a written question to the applicant to allow it to explain the alleged disadvantageous consequences of the corrigendum for its rights of defence. In its reply, the applicant did not identify such consequences.
Consequently, the request that the corrigendum to the defence be removed from the file is refused.
2.
Substance
In support of its action, the applicant puts forward four pleas in law. The first plea alleges infringement of Articles 81 EC and 253 EC and breach of its rights of defence, owing to it alleges to be the failure to distinguish in the reasoning in the contested decision between the H&R group and Tudapetrol. The second plea, put forward in the alternative, alleges infringement of Article 81 EC owing to the absence of evidence of an infringement committed by the applicant. The third plea, which is also put forward in the alternative, alleges infringement of Article 23(3) of Regulation No 1/2003 owing to what is alleged to be the incorrect determination of the turnover taken into account in calculating the amount of the fine. The fourth plea, also put forward in the alternative, alleges infringement of Article 23(3) of Regulation No 1/2003 owing to errors of assessment vitiating the calculation of the amount of the fine.
First plea, alleging infringement of Articles 81 EC and 253 EC and breach of the rights of the defence, owing to what is alleged to be the failure to draw the necessary distinction in the reasoning in the contested decision
The first plea is divided into two parts. The first part alleges infringement of Articles 81 EC and 253 EC. The second part relates to a breach of the applicant’s rights of defence.
First part: infringement of Articles 81 EC and 253 EC
The applicant observes that the Commission considered that the H&R group and Tudapetrol were two separate and independent undertakings (recital 22 to the contested decision). In the contested decision, however, when examining the evidence of the infringement, the Commission failed to distinguish between the two undertakings and designated them under the name ‘H&R/Tudapetrol’
In the first place, the applicant claims that the Commission breached its obligation to state reasons and infringed Article 81 EC by not presenting, in the contested decision, separate reasons in relation to the allegedly unlawful conduct of Tudapetrol and that of the companies in the H&R group.
In particular, the applicant maintains that if H&R and Tudapetrol are two distinct undertakings, the Commission must establish that each of the those undertakings participated, individually and autonomously, in the entire infringement of Article 81 EC at issue in the present case. However, in the contested decision the Commission failed to demonstrate that that was the case.
The applicant also takes issue with the fact that, with respect to the period from 1 January 2001 to 30 June 2002, the Commission established joint liability on the part of Tudapetrol, on the one hand, and Hansen & Rosenthal, or its subsidiary, H&R Wax Company Vertrieb, on the other, and also of H&R ChemPharm from 1 July 2001.
The question whether, and to what extent, the applicant may be held liable for an infringement of Article 81 EC on the part of Tudapetrol is not apparent from the statement of reasons in the contested decision owing to the ‘unitary viewpoint’ adopted by the Commission.
In the second place, the applicant maintains that it is not its place to seek the reasoning on which the contested decision is based in the information set out therein and to reconstruct the logic that led the Commission to impute to the applicant liability for certain technical meetings and certain periods. The contested decision ought to contain an explicit statement of reasons in that respect.
In the third place, the mere fact that Mr G. was present at certain technical meetings is not sufficient to establish that H&R ChemPharm participated in the cartel, so that the mere reference to that fact does not constitute a sufficient reason for the purposes of Article 253 EC. Mr G. was not employed in the applicant’s commercial division and worked for the applicant for only 30% of his time. His task, as one of the applicant’s three product managers, consisted in developing paraffin and wax emulsion products with new chemical compositions, thus involving no task or responsibility connected with the applicant’s commercial activity. In addition, during the period in question, H&R ChemPharm was a holding company and therefore did not itself have any production activity.
Therefore, in the applicant’s submission, the Commission ought to have explained in the contested decision the reasons why Mr G.’s presence implied H&M ChemPharm’s participation in the paraffin waxes price cartel, in view of the fact that, in his capacity as product manager, he was unable to take decisions on that subject so far as H&M ChemPharm was concerned and H&M ChemPharm did not produce or sell anything.
In the first place, it is appropriate to examine the complaint which the applicant bases on insufficient reasoning.
It should be borne in mind, in that regard, 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 such a way as to enable the persons concerned to ascertain the reasons for the measure and the Court to exercise its power of review (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 145).
Thus, it is settled case-law that the purpose of the obligation to state the reasons on which an individual decision is based is, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged (see, to that effect, Case
C-199/99 P
Corus UK
v
Commission
[2003] ECR I-11177
, paragraph 145, and Joined Cases
C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P
Dansk Rørindustri and Others
v
Commission
[2005] ECR I-5425
, paragraph 462).
The statement of reasons must therefore in principle be notified to the person concerned at the same time as the act adversely affecting him. A failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the decision during the proceedings before the Courts of the European Union (Case
195/80
Michel
v
Parliament
[1981] ECR 2861
, paragraph 22;
Dansk Rørindustri and Others
v
Commission
, paragraph 40 above, paragraph 463; and Case C‑521/09 P
Elf Aquitaine
v
Commission
, paragraph 39 above, paragraph 149).
It has consistently been held that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. 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 all the legal rules governing the matter in question Case
C-367/95 P
Commission
v
Sytraval and Brink’s France
[1998] ECR I-1719
, paragraph 63, and Case
C-413/06
Bertelsmann and Sony Corporation of America
v
Impala
[2008] ECR I-4951
, paragraphs 166 and 178).
Where, as in the present case, a decision taken in application of the European Union competition law rules relates to several addressees and raises a problem with regard to the imputability of the infringement, it must include an adequate statement of reasons with respect to each of its addressees, in particular those of them who, according to that contested decision, must bear the liability for that infringement (see, to that effect, Case C‑521/09 P
Elf Aquitaine
v
Commission
, paragraph 39 above, paragraph 152 and the case-law cited).
First, in the present case, it should be observed that, at recital 22 to the contested decision, the Commission stated that the use of the joint designation ‘H&R/Tudapetrol’ was justified by the close personal links between Tudapetrol and the H&R group and also by the distribution links between them.
As regards the personal links, it is apparent from recital 28 to the contested decision that each of the three individuals who participated in the anti-competitive meetings, namely Mr H., Mr G. and Mr W., was employed, during the various periods in question, by Tudapetrol and the H&R group. In addition, Mr H. was a trainee at Tudapetrol and the same time, from 2001 and up to the time of the adoption of the contested decision, sales manager for H&R Wax Company Vertrieb. In addition, Mr G. was, between 1999 and 2000, product manager at SRS GmbH (a company in the H&R group, owned indirectly by H&R ChemPharm and the same time sales manager at Tudapetrol.
As regards the commercial links between H&R and Tudapetrol, the Commission stated, at recital 22 to the contested decision, that Tudapetrol was a paraffin waxes and slack wax sales and distributing company for H&R.
It must therefore be stated that the reasons why the Commission often treated Tudapetrol with the H&R group under the joint designation ‘H&R/Tudapetrol’ are clear from the contested decision.
Second, the Court must examine whether the contested decision contains an adequate statement of reasons as to the conduct for which the companies in the H&R group and Tudapetrol respectively are held responsible.
At recital 106 to the contested decision, the Commission described the functioning of the aspects of the infringement concerning paraffin waxes (the main aspect and the second aspect of the contested decision). Thus, the representatives of the participating undertakings met regularly at ‘technical meetings’. Those meetings were ‘divided into two parts: an initial discussion on technical issues, which was followed by discussions of an anti-competitive nature such as price fixing, market and customer allocations (in certain cases), and exchange and disclosure of commercially sensitive information including present and future pricing policies, customers, production capacities and sales volumes’.
At recitals 381 and 610, and footnote 625, to the contested decision, the Commission established separately, with respect to Tudapetrol, on the one hand, and the companies in the H&R group, on the other hand, the beginning, end and duration of their participation in the infringement. According to the contested decision, H&R ChemPharm thus participated in the infringement from 1 July 2001 to 28 April 2005, or for three years and nine months, and SRS from 22 February 2001 to 1 July 2001, or for three months. Hansen & Rosenthal’s and H&R Wax Company Vertrieb’s participation lasted from 1 January 2001 to 28 April 2005, or for four years and three months. Tudapetrol participated in the infringement from 24 March 1994 until 30 June 2002, or for eight years and three months. The Commission also stated that, when examining the duration of participation in the infringement, the decisive factor was the periods during which Mr W., Mr H. and Mr G. were employed in the companies held liable for the infringement, and also the known presence of those individuals at the technical meetings. The Commission referred in that regard to the annex to the contested decision.
In the annex to the contested decision, the Commission identified the 14 technical meetings in which, according to the evidence available, ‘H&R/Tudapetrol’ had taken part during the period during which H&R ChemPharm was found to have participated in the infringement (from 1 July 2001 to 28 April 2005). In the footnotes referring to those meetings, the Commission identified the H&R ChemPharm employee taking part in the meeting, in fact Mr G., and specified the evidence demonstrating his presence.
Thus, it is clear from the contested decision, read in the context of its adoption, that the applicant was found liable only in respect of the technical meetings where the presence of ‘H&R/Tudapetrol’ was indicated in the documents in the Commission’s possession and in which Mr G., employed by the applicant, participated.
Third, it is none the less appropriate to examine the period from 1 July 2001 to 30 June 2002, in respect of which the Commission found both H&R ChemPharm and Tudapetrol liable.
In that regard, it will be recalled (see paragraph 50 above) that, when the Commission defined the duration of participation in the infringement, the decisive factor which it took into account was the periods during which Mr W., Mr H. and Mr G. were employed in the companies held liable for the infringement. The Commission stated in the annex to the contested decision that, at the technical meetings held during the period from 1 July 2001 to 30 June 2002, the entity ‘H&R/Tudapetrol’ was represented by Mr G. and Mr H. It also stated, at recital 28 to the contested decision, that during that period Mr G. was sales manager for H&R Wax Company Vertrieb and product manager at H&R ChemPharm, while Mr H. was employed in the Tudapetrol’s sales and marketing department (1997-2002) and was at the same time H&R Wax Company Vertrieb’s sales manager (since 2001 and still at the time of the adoption of the contested decision).
It is clear from the contested decision, therefore, that the Commission found the companies concerned liable only in respect of the periods during which their respective employees took part in the technical meetings and that the reason for establishing parallel liability during the period from 1 July 2001 to 30 June 2002 was that the individuals participating in those meetings held posts both with Tudapetrol and in the companies in the H&R group, in particular with the applicant.
Fourth, the Court must examine the arguments raised by the applicant in the reply whereby it claims that the mere reference to the employment relationship between Mr G. and the applicant does not constitute a sufficient statement of reasons, since the applicant ‘[did] not produce or sell anything’, since Mr G. was a product manager and not a commercial manager and since he worked for the applicant for only 30% of his time.
In that regard, it should be observed that the applicant’s assertion that it ‘does not produce or sell anything’ contradicts its own statements during the administrative procedure. The applicant’s letter of 8 December 2005 is accompanied by a list of ‘paraffin/microwaxes producers in Europe’, in which it also appears, among others. In its letter of 15 December 2006, the applicant stated that ‘H&R ChemPharm is only a production undertaking and therefore [did] not sell paraffins to third parties’. In addition, in its letter of 31 January 2008, it states that the turnovers of Hansen & Rosenthal and H&R Wax Company Vertrieb are ‘largely attained by the distribution of H&R ChemPharm’s products’.
As for Mr G.’s duties, the applicant stated in its letter of 19 January 2007 that he was the ‘interface between production and distribution’, since he had a dual role, namely that of a product manager and that of a sales manager. According to that letter, that dual role was provided for in the contract of employment concluded with the applicant.
It follows that the applicant’s assertions that H&R ChemPharm did not produce anything and that Mr G. was not involved in the distribution of paraffin waxes are factually incorrect. Nor could the fact that Mr G. spent only 30% of his working time with the applicant prevent him from influencing the applicant’s commercial conduct in the light of the information acquired during the technical meetings. The statement of reasons for the contested decision is therefore compatible with the explanations supplied by the applicant during the administrative procedure and makes it possible to understand the reasons why the Commission attached the applicant’s liability for the infringement to the employment relationship between it and Mr G.
In the light of the foregoing, it must be concluded that the contested decision, read as a whole and in the context in which it was adopted, contains an adequate statement of reasons as regards the facts constituting the infringement in respect of which the applicant was found liable and that it enables them to be distinguished from the facts in respect of which Tudapetrol was found liable.
That conclusion cannot be called into question by the applicant’s argument that it cannot be required to seek the grounds on which the contested decision is based in the footnotes and in the annexes to that decision and that it must thus reconstruct the logic that led the Commission to find it liable for certain periods.
Having regard to the large volume of information and assessments underpinning the decision to impose fines on a large number of companies, each of which is entitled to have an adequate statement of reasons as regards the factors concerning it, the Commission cannot be criticised for having arranged the reasoning on which the decision is based on several levels. In particular, the Commission does not breach any legal rule by setting out in the body of the text only the main considerations on which the decision is based and also the considerations put forward with respect to the specific arguments raised by the undertakings concerned in their replies to the statement of objections, and in presenting the explanatory information or considerations and the references to the evidence in the footnotes or the annex to the decision.
It should be added that the Commission already used the joint designation ‘H&R/Tudapetrol’ in the statement of objections, notably in the context of the examination of the evidence and in the summary table indicating the participating undertakings’ presence at particular technical meetings, whereas the duration of their participation in the infringement was established separately for H&R and Tudapetrol. However, the applicant did not question that approach in the reply to the statement of objections which it lodged jointly with Tudapetrol and the other companies in the H&R group, in spite of the fact that the statement of objections was addressed separately to each company. In that reply, moreover, H&R and Tudapetrol systematically used the designation ‘H&R/Tudapetrol’ in their arguments, except at paragraph 2.7.2, which contains a passage in which it was claimed that the infringement committed by Tudapetrol was time-barred, since Tudapetrol had allegedly ceased its paraffin waxes activities on 1 May 2000. In those circumstances, the applicant cannot validly take issue with the Commission for not having produced more explicit reasons as regards the aspects at issue.
In the second place, the Court must examine the complaint alleging infringement of Article 81 EC.
First, it is appropriate to examine the Commission’s use of the joint designation ‘H&R/Tudapetrol’ in the contested decision.
In that regard, first of all, it should be observed that the Commission referred in the contested decision to the personal links between Tudapetrol and H&R, which are not disputed by the applicant.
In addition, it follows from the extracts from the notes and minutes in the Commission’s possession and from the statements of the participants in the cartel, set out in the contested decision, and also from the file containing all the evidence, to which the applicant had access before the contested decision was adopted, that the other participants in the infringement often referred to a joint entity ‘SRS/Tudapetrol’ or ‘H&R/Tudapetrol’, or otherwise associated Tudapetrol and the companies in the H&R group in the context of the unlawful conduct. Consequently, it must be observed that the Commission’s frequent use of the joint designation ‘H&R/Tudapetrol’ also corresponds to the perception of the other participants in the cartel.
Next, the Commission also referred to the vertical relationship between the H&R group and Tudapetrol.
The applicant does not deny that Tudapetrol was ‘a sales and distributing company for H&R of paraffin waxes and slack wax’, so that there was a vertical link between the two undertakings. It follows from that vertical link that both undertakings shared a commercial interest, aimed at maximising the profits from the paraffin waxes products which they produced or sold. That interest was served by participation in the infringement at issue, the object of which was, in particular, price fixing, thus enabling profits exceeding those that might have resulted from free competition to be achieved. In addition, as the paraffin waxes sold by Tudapetrol had been produced by the H&R group, that vertical link could reinforce the impression of the other participants in the cartel that those two undertakings were closely linked, with the consequence that the other participants perceived them as a single entity, which, moreover, is apparent from the documents in the Commission’s possession.
It follows that the Commission was entitled to mention the vertical link between Tudapetrol and the H&R group among the factors that justified the use of the joint designation ‘H&R/Tudapetrol’ in certain parts of the contested decision.
Last, it should be borne in mind that the companies in the H&R group and Tudapetrol submitted a joint reply to the statement of objections. The Commission therefore followed a logical approach when it presented the arguments raised by those two undertakings as being the arguments of ‘H&R/Tudapetrol’.
Consequently, having regard to the personal links between the two undertakings, to the perception of the other participants in the cartel and to the joint reply to the statement of objections, it must be concluded that the Commission did not infringe Article 81 EC when it used the joint designation ‘H&R/Tudapetrol’ when examining certain aspects of the infringement.
Second, it should be borne in mind that the Commission found the applicant liable only with respect to the technical meetings in which an individual employed by H&R ChemPharm had participated, according to its evaluation of the documents in its possession (see paragraphs 45 to 52 above). The presence of an employee or other representatives at anti-competitive meetings is a factual element that enables the Commission to find an undertaking liable for an infringement of Article 81 EC. According to the case-law, the Commission’s power to impose a sanction on an undertaking where it has committed an infringement presumes only the unlawful action of a person who is generally authorised to act on behalf of the undertaking (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 277; Case
T-141/08
E.ON Energie
v
Commission
[2010] ECR II-5761
, paragraph 258; see also, to that effect, Joined Cases 100/80 to 103/80
Musique Diffusion française and Others
v
Commission
[1983] 1825, paragraph 97).
Accordingly, in using the joint designation ‘H&R/Tudapetrol’ in certain parts of the assessment in the contested decision, but having first stated that the applicant was found liable for having participated in the technical meetings because one of its employees had been present at those meetings, the Commission did not infringe Article 81 EC.
As the applicant has not demonstrated either a breach of the obligation to state reasons or an infringement of Article 81 EC, the first part of the first plea must be rejected.
Second part, alleging breach of the rights of the defence
The applicant maintains that as the statement of reasons in the contested decision does not distinguish the acts for which it is found liable from those imputed to Tudapetrol, it does not enable the applicant to identify the actual conduct in which it is alleged to have been engaged. Its ability to adduce exonerating evidence is therefore limited. As it is held jointly liable for all of Tudapetrol’s conduct, it must therefore, in order to prove its innocence, challenge all the material objections raised against Tudapetrol as concerns the period of its participation in the infringement.
According to a settled line of decisions, respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement (
Musique Diffusion française and Others
v
Commission
, paragraph 73 above, paragraph 10; 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 66; and Case
C-407/04 P
Dalmine
v
Commission
[2007] ECR I-829
, paragraph 44).
Regulation No 1/2003 provides in Article 27(1) that the parties are to be sent a statement of objections which must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure, to enable those concerned to be aware of the conduct in which the Commission alleges they have been engaged and to put forward their defence before the Commission adopts a final decision. That statement of objections constitutes the procedural safeguard applying the fundamental principle of EU law which requires respect for the rights of the defence in all proceedings (Joined Cases
C-322/07 P, C-327/07 P and C-338/07 P
Papierfabrik August Koehler and Others
v
Commission
[2009] ECR I-7191
, paragraph 35, and Case
T-299/08
Elf Aquitaine
v
Commission
[2011] ECR II-2149
, point 135).
That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it (see
Papierfabrik August Koehler and Others
v
Commission
, paragraph 78 above, paragraph 36 and the case-law cited).
In particular, the statement of objections must specify unequivocally the legal person on whom fines may be imposed, it must be addressed to that person and it must indicate in what capacity that person is called upon to answer the allegations (Case T‑299/08
Elf Aquitaine
v
Commission
, paragraph 78 above, paragraph 137; see also, to that effect,
Papierfabrik August Koehler and Others
v
Commission
, paragraph 78 above, paragraphs 37 and 38).
In the first place, it should be observed that, by letter of 29 May 2007, the Commission sent a statement of objections to the applicant.
At paragraph 104 of the statement of objections, the Commission already produced the table, set out at recital 124 and in the annex to the contested decision, identifying what, according to its information, were the meetings in which the entity ‘H&R/Tudapetrol’ had participated.
The Commission also stated, at paragraphs 2 and 257 of the statement of objections, and also in footnote 493, accompanying paragraph 257, that it proposed to hold H&R ChemPharm liable for the period from 1 July 2001 to 28 April 2005 for an infringement of Article 81 EC consisting in agreements or concerted practices involving price fixing and the exchange of commercially sensitive information affecting the paraffin waxes market. The Commission also indicated that, when defining the duration of participation in the infringement, the decisive factor was the periods during which Mr W., Mr H. and Mr G. held posts in the companies held liable for the infringement. At paragraph 31 of the statement of objections, the Commission already stated the periods during which those three individuals had been employed or held posts, in the same way as it did at recital 28 to the contested decision. In addition, under the heading ‘4.2. Detailed information concerning the technical meetings’, the evidence taken into account by the Commission for each of the technical meetings is set out.
It is therefore clear from the statement of objections that the only technical meetings taken into account for the purpose of establishing H&R ChemPharm’s liability were those in which one of its employees had participated. Thus, the applicant cannot validly claim that the statement of objections did not enable it to identify the conduct in which it was alleged to have been engaged and that, in order to prove its innocence, it was required to challenge all the material objections raised against Tudapetrol.
For the sake of completeness, it is recalled that Tudapetrol and the companies in the H&R group replied jointly to the statement of objections, in spite of the fact that a statement of objections had been sent separately to each of those companies. In addition, Tudapetrol and the companies in the H&R group used the joint designation ‘H&R/Tudapetrol’ in their reply. The applicant has not claimed that that designation made it impossible for it to defend itself against the objections raised against the applicant alone.
In the light of the foregoing, the second part of the first plea and, accordingly, the first plea in its entirety must be rejected.
Second plea, alleging infringement of Article 81 EC owing to the absence of proof of an infringement committed by the applicant
The second plea, which is put forward in the alternative, is divided into two parts. In the first part, the applicant claims that the Commission did not gather sufficient evidence to establish that it was individually liable. In the second part, it claims that its liability also cannot be inferred from the evidence against the other companies in the H&R group.
First part, concerning the absence of evidence establishing that the applicant was directly liable
In the applicant’s submission, the Commission has not established that it had personally committed an unlawful act.
In the first place, the Commission failed to take account, in assessing the evidence, of the fact that it did not find the applicant liable for two aspects of the single infringement, namely customer allocation and market sharing (second aspect of the infringement) and of the aspect relating to the German market for slack wax (the ‘slack wax’ aspect of the infringement). Only the main aspect of the infringement, that is to say, price fixing and the exchange of commercially sensitive information on the paraffin waxes market, was found to have been committed by the applicant, according to recital 328 to the contested decision. Accordingly, the applicant maintains that the Commission’s evaluation of the evidence ought to have been undertaken more precisely in order to identify the evidence relating to the applicant and to ensure that evidence capable of establishing infringements committed only by third parties was not used against it.
In the second place, as regards the infringement period found, extending from 1 July 2001 to 28 April 2005, no employee of the applicant actively working for it took part in the anti-competitive meetings. Mr G., the applicant’s ‘product manager’ since 2001, did not have any functions in its commercial division. He worked for the applicant for 30% of his time. As one of the three product managers, his task with the applicant consisted in the development of paraffin and wax emulsion products with a new chemical composition. That did not involve any task or responsibility connected with the applicant’s commercial activity or,
a fortiori
, with its representation. In that regard, the applicant offers as proof the testimony of its manager, Mr S.
According to the applicant, in the letter of 19 January 2007, it is stated that Mr G. was the ‘sales manager’ of H&R Wax Company Vertrieb, a separate company from the applicant. It denies that H&R Wax Company Vertrieb was its distribution company. H&R Wax Company Vertrieb was legally autonomous and the applicant held no shares in that company and had no management power over it. The applicant also denies that H&R Wax Company Vertrieb was an associate of the applicant or that it had ‘special control rights’ over that company. Accordingly, H&R Wax Company Vertrieb’s liability cannot be imputed to the applicant.
Nor, in the applicant’s submission, has the Commission demonstrated that Mr G. was acting on its behalf when he participated in the technical meetings. Generally, therefore, there is no proof that the applicant personally participated in the infringement.
In the third place, the applicant submits that even if the Court should consider that Mr G. was its representative at the technical meetings, the Commission has not in any event adduced evidence of an infringement of Article 81 EC committed by the applicant. It supplies in that regard a detailed analysis relating to each of the technical meetings at which, according to the contested decision, H&R was present.
– The concepts of agreement and concerted practice
According to Article 81(1) EC, all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market are incompatible with the common market and prohibited.
In order for there to be an agreement within the meaning of Article 81(1) EC it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way (Case
T-7/89
Hercules Chemicals
v
Commission
[1991] ECR II-1711
, paragraph 256, and Case
T-9/99
HFB and Others
v
Commission
[2002] ECR II-1487
, paragraph 199).
An agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation (Case
T-240/07
Heineken Nederland and Heineken
v
Commission
[2011] ECR II-3355
, paragraph 45; see also, to that effect,
HFB and Others
v
Commission
, paragraph 95 above, paragraphs 151 to 157 and 206).
The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (Case
C-49/92 P
Commission
v
Anic Partecipazioni
[1999] ECR I-4125
, paragraph 115, and Case
C-199/92 P
Hüls
v
Commission
[1999] ECR I-4287
, paragraph 158).
In that respect, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which the operator concerned has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition (
Heineken Nederland and Heineken
v
Commission
, paragraph 96 above, paragraph 47; see also, to that effect,
Commission
v
Anic Partecipazioni
, paragraph 97 above, paragraphs 116 and 117).
– The principles of the assessment of evidence
According to the case-law, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of the facts constituting an infringement (see Case
C-185/95 P
Baustahlgewebe
v
Commission
[1998] ECR I-8417
, paragraph 58, see Joined Cases T‑44/02 OP, T‑54/02 OP, T‑56/02 OP, T‑60/02 OP and
T-61/02 OP
Dresdner Bank and Others
v
Commission
[2006] ECR II-3567
, paragraph 59 and the case-law cited).
As regards the scope of review by the Court, it is settled case-law that, where the Court is faced with an application for the annulment of a decision applying Article 81(1) EC, it must undertake in a general manner a comprehensive review in order to ascertain whether or not the conditions for the application of Article 81(1) EC are met (see Case
T-41/96
Bayer
v
Commission
[2000] ECR II-3383
, paragraph 62 and the case-law cited).
In that respect, any doubt on the part of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point, in particular in proceedings for the annulment of a decision imposing a fine (
Dresdner Bank and Others
v
Commission
, paragraph 99 above, paragraph 60, and Case
T-112/07
Hitachi and Others
v
Commission
[2011] ECR II-3871
, paragraph 58).
In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which is one of the fundamental rights which are general principles of EU law. Given the nature of the infringements in question and the nature and degree of gravity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (
Hitachi and Others
v
Commission
, paragraph 101 above, paragraph 59; see also, to that effect,
Dresdner Bank and Others
v
Commission
, paragraph 99 above, paragraph 61 and the case-law cited).
Thus, the Commission must show precise and consistent evidence in order to establish the existence of the infringement. However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria for every aspect of the infringement. It is sufficient if the set of indicia relied on by the institution, viewed as a whole, meets that requirement (see
Dresdner Bank and Others
v
Commission
, paragraph 99 above, paragraphs 62 and 63 and the case-law cited).
The indicia on which the Commission relies in the contested decision in order to prove the existence of an infringement of Article 81(1) EC by an undertaking must not be assessed separately, but as a whole (see Case
T-53/03
BPB
v
Commission
[2008] ECR II-1333
, paragraph 185 and the case-law cited).
It should also be observed that, in practice, the Commission is often obliged to prove the existence of an infringement under conditions which are hardly conducive to that task, in so far as several years may have elapsed since the time of the events constituting the infringement and a number of the undertakings covered by the investigation have not actively cooperated with it. While it is necessarily incumbent upon the Commission to establish that an unlawful price-fixing agreement was concluded, it would be excessive also to require it to produce evidence of the specific mechanism by which that object was to be attained. Indeed, it would be too easy for an undertaking guilty of an infringement to escape any penalty if it were able to base its argument on the vagueness of the information produced regarding the operation of an illegal agreement in circumstances in which the existence and anti-competitive purpose of the agreement had none the less been sufficiently established. The undertakings are able to defend themselves properly in such a situation, provided that they are able to comment on all the evidence adduced against them by the Commission (Joined Cases
T-67/00, T-68/00, T-71/00 and T-78/00
JFE Engineering and Others
v
Commission
[2004] ECR II-2501
, paragraph 203).
As regards the evidence which may be relied on to establish an infringement of Article 81 EC, the prevailing principle of EU law is the unfettered evaluation of evidence (Case
T-50/00
Dalmine
v
Commission
[2004] ECR II-2395
, paragraph 72, and
Hitachi and Others
v
Commission
, paragraph 101 above, paragraph 64).
As regards the probative value of the various items of evidence, the sole criterion relevant in evaluating the evidence adduced is its reliability (
Dalmine
v
Commission
, paragraph 106 above, paragraph 72).
According to the general rules regarding evidence, the reliability and, thus, the probative value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it is addressed and its content (Joined Cases
T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95
Cimenteries CBR and Others
v
Commission
[2000] ECR II-491
, paragraphs 1053 and 1838, and
Hitachi and Others
v
Commission
, paragraph 101 above, paragraph 70).
Where the Commission bases its decision solely on the conduct of the undertakings in question on the market to conclude that there has been an infringement, it is sufficient for those undertakings to prove the existence of circumstances which cast the facts established by the Commission in a different light and thus allow another plausible explanation of those facts to be substituted for the one adopted by it in concluding that the European Union competition rules had been infringed (see, to that effect,
JFE Engineering and Others
v
Commission
, paragraph 105 above, paragraph 186).
Where, on the other hand, the Commission has relied on documentary evidence, it is for the undertakings concerned not merely to present a plausible alternative to the Commission’s theory but to show that the evidence used in the decision is insufficient to establish the existence of the infringement (
JFE Engineering and Others
v
Commission
, paragraph 105 above, paragraph 187). Such an approach to evaluating the evidence does not constitute a breach of the principle of the presumption of innocence (see, to that effect, Case
C-235/92 P
Montecatini
v
Commission
[1999] ECR I-4539
, paragraph 181).
Since the prohibition on participating in anti-competitive practices and agreements is well known, the Commission cannot be required to produce documents explicitly showing contacts between the operators concerned. The fragmentary and incomplete evidence which it may have should, in any event, be capable of being supplemented by inferences that will enable the relevant circumstances to be reconstituted. The existence of an anti-competitive practice or agreement may therefore be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (
Aalborg Portland and Others
v
Commission
, paragraph 77 above, paragraphs 55 to 57; see also
Dresdner Bank and Others
v
Commission
, paragraph 99 above, paragraphs 64 and 65 and the case-law cited).
When assessing the probative value of documentary evidence, it is necessary to attach great importance to the fact that a document was drawn up in close connection with the facts (Case
T-157/94
Ensidesa
v
Commission
[1999] ECR II-707
, paragraph 312, and Joined Cases
T-5/00 and T-6/00
Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie
v
Commission
[2003] ECR II-5761
, paragraph 181) or by a direct witness of those facts (
JFE Engineering and Others
v
Commission
, paragraph 105 above, paragraph 207).
The fact that a document is undated or unsigned or is badly written does not impugn its probative force, especially where its origin, probable date and content can be determined with sufficient certainty (Joined Cases
T-217/03 and T-245/03
FNCBV
v
Commission
[2006] ECR II-4987
, paragraph 124; see also, to that effect, Case
T-11/89
Shell
v
Commission
[1992] ECR II-757
, paragraph 86).
It follows from the principle of the free evaluation of evidence that even if the absence of documentary evidence may be relevant in the context of the overall assessment of the set of indicia put forward by the Commission, it does not in itself have the consequence that the undertaking concerned is able to call the Commission’s allegations into question by presenting an alternative explanation of the events. The applicant may do so only where the evidence submitted by the Commission does not enable the existence of the infringement to be established unequivocally and without the need for interpretation (
Hitachi and Others
v
Commission
, paragraph 101 above, paragraph 65; see also, to that effect, judgment of 12 September 2007 in Case T‑36/05
Coats Holdings and Coats
v
Commission
, not published in the ECR, paragraph 74).
In addition, no provision or any general principle of EU law prohibits the Commission from relying, as against an undertaking, on statements made by other undertakings accused of having participated in the cartel. If that were not the case, the burden of proving conduct contrary to Article 81 EC, which is borne by the Commission, would be unsustainable and incompatible with its task of supervising the proper application of those provisions (
JFE Engineering and Others
v
Commission
, paragraph 105 above, paragraph 192, and
Hitachi and Others
, paragraph 101 above, paragraph 67).
Particularly high probative value may be attached to statements which, first, are reliable, second, are made on behalf of an undertaking, third, are made by a person under a professional obligation to act in the interests of that undertaking, fourth, go against the interests of the person making the statement, fifth, are made by a direct witness of the circumstances to which they relate and, sixth, were provided in writing deliberately and after mature reflection (
Hitachi and Others
v
Commission
, paragraph 101 above, paragraph 71; see also, to that effect,
JFE Engineering and Others
v
Commission
, paragraph 105 above, paragraphs 205 to 210).
However, a statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence, though the degree of corroboration required may be less in view of the reliability of the statements at issue (
JFE Engineering and Others
v
Commission
, paragraph 105 above, paragraphs 219 and 220, and
Hitachi and Others
v
Commission
, paragraph 101 above, paragraph 68).
In addition, even if some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is generally called for, given the possibility that those participants might tend to play down the importance of their contribution to the infringement and maximise that of the others, the fact remains that seeking to benefit from the application of the 2002 Leniency Notice in order to obtain immunity from a fine, or a reduction of the amount of the fine, does not necessarily create an incentive to submit distorted evidence in relation to the participation of the other members of the cartel. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of the cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the 2002 Leniency Notice (
Hitachi and Others
v
Commission
, paragraph 101 above, paragraph 72; see also, to that effect, Case
T-120/04
Peróxidos Orgánicos
v
Commission
[2006] ECR II-4441
, paragraph 70).
In particular, where a person admits that he committed an infringement and thus admits the existence of facts going beyond those whose existence could be directly inferred from the documentary evidence, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person had resolved to tell the truth. Thus, statements which run counter to the interests of the person making them must in principle be regarded as particularly reliable evidence (
JFE Engineering and Others
v
Commission
, paragraph 104 above, paragraphs 211 and 212; Joined Cases
T-109/02, T-118/02, T-122/02, T-125/02, T-126/02, T-128/02, T-129/02, T-132/02 and T-136/02
Bolloré and Others
v
Commission
[2007] ECR II-947
, paragraph 166; and judgment of 8 July 2008 in Case T‑54/03
Lafarge
v
Commission
, not published in the ECR, paragraph 59).
The case-law cited above is applicable, by analogy, to Article 53 of the EEA Agreement.
– The contested decision
First of all, it should be borne in mind that the Commission considered, at recital 2 to the contested decision, under the heading ‘Summary of the infringement’, that the addressees of the contested decision had participated in a single, complex and continuous infringement of Article 81 EC and Article 53 of the EEA Treaty. The main aspect of that infringement consisted of ‘agreements and/or concerted practices aimed at price fixing and exchanging and disclosing commercially sensitive information’ concerning paraffin waxes. That main aspect was the only component of the infringement in which the applicant took part, according to the contested decision. Some other undertakings to which the contested decision was addressed also participated in the other aspects of the infringement, namely ‘customer and/or market allocation’ with respect to paraffin waxes (the second aspect of the infringement) and also ‘slack wax sold to end-customers on the German market’ (the slack wax aspect of the infringement).
In the contested decision, under the headings ‘4. Description of the Events’ and ‘4.1. The Basic Principles and Functioning of the Cartel’, the Commission provided, at recital 106 et seq. to that decision, the following description of the content of the price-fixing practices:
‘…
(106)
The [t]echnical [m]eetings have been divided into two parts: an initial discussion on technical issues, which was followed by discussions of an anti-competitive nature such as price fixing, market and customer allocations (in certain cases), and exchange and disclosure of commercially sensitive information including present and future pricing policies, customers, production capacities and sales volumes.
(107)
Discussions about prices and potential price increases normally took place at the end of the [t]echnical [m]eetings. Usually, Sasol would instigate the discussions about prices, but then prices and pricing strategies were discussed by all the attendees in the form of a round table discussion. The discussions concerned both price increases and target prices for specific customers and general price increases as well as minimum and target prices for the whole market. Price increases were normally agreed upon in terms of absolute numbers, not percentages (for example [EUR] 60 … per ton for fully-refined paraffin waxes). Minimum prices were not only agreed upon when there was an agreement of a price increase but also when a price increase was not feasible (for example in times of falling prices).
…
(109)
Furthermore, the individuals representing the companies exchanged commercially sensitive information and disclosed their general business strategies.
(110)
The companies, except for MOL, were represented by managers that had the power to determine their respective company’s pricing strategy and set prices with respect to individual customers. …
(111)
In most of the [t]echnical [m]eetings the price discussions concerned paraffin waxes in general and only rarely the different kinds of paraffin waxes (such as fully-refined paraffin waxes, semi-refined paraffin waxes, wax-blends/specialties, hard paraffin waxes or hydro-finished paraffin waxes) were specified. Moreover, it was understood by all the companies that prices for all types of paraffin waxes would be increased by the same amount or percentage.
…
(113)
The outcome of the [t]echnical [m]eetings was mainly implemented through price increase announcements to customers or by cancelling existing pricing schemes. Occasional cases of cheating or non-implementation were discussed at subsequent meetings (see, for example, recitals 149 and 157). Usually, one of the companies represented would take the lead and start increasing its prices. Usually, that would be Sasol, but sometimes Sasol asked another participant to take the lead. Shortly after one company announced its intention to raise prices to its customers, the other suppliers would follow suit by announcing price increases as well. The individuals representing the companies at the [t]echnical [m]eetings informed each other of the steps they took to implement the results of the [t]echnical [m]eetings. This information was transmitted orally or by sending a copy of the relevant price increase or price cancellation announcements to one or all of the other [participating] companies … The Commission indeed found that such announcements were exchanged between the parties. A sample of around 150 such letters have been identified as having been exchanged within six weeks after [t]echnical [m]eetings. Also, an agreement has been reported where the companies represented should not profit from the implementation of an agreed price increase to increase their own market share. This statement was not contested in the replies to the [s]tatement of [o]bjections.’
Under the heading ‘4.2. Details on the Technical Meetings’, the Commission first of all presented in the contested decision a table setting out the places and dates of the technical meetings and the undertakings present (recital 124 to the contested decision). It then examined the available evidence relating to each of the technical meetings (recitals 126 to 177 to the contested decision).
Under the headings ‘5. Application of Article 81 [EC] in the present case’ and ‘5.3. The Nature of the Infringement in the Present Case’, the Commission set out in the contested decision the principles governing the characterisation of the anti-competitive conduct that were applicable:
‘5.3.1. Principles
…
(205)
… it is not necessary for the Commission to characterise the conduct as [an agreement or a concerted practice], particularly in the case of a complex infringement of long duration. The concepts of agreement [or] concerted practice are fluid and may overlap. The anti-competitive behaviour may well have varied from time to time, or its mechanisms may have been adapted or strengthened to take account of new developments. Indeed, it may not even be possible to make such a distinction, as an infringement may simultaneously present the characteristics of each form of prohibited conduct, while when considered in isolation, some of its manifestations could accurately be described as one rather than the other. It would be analytically artificial, however, to subdivide what is clearly a continuing common enterprise having one and the same overall objective into several different forms of infringement. A cartel may therefore be an agreement and a concerted practice at the same time. Article 81 [EC] lays down no specific category for a complex infringement of the type described in this decision.
(206)
In circumstances where there are several cartel members and their anti-competitive behaviour over time can be characterised as either agreements or concerted practices (complex infringements), the Commission is not required to classify each type of behaviour. …’
Next, still under the heading ‘5.3. The Nature of the Infringements in the Present Case’, the Commission described in the contested decision the content of the infringement, as follows:
‘5.3.2
Application
(210)
It is demonstrated by the facts described in Chapter 4 of the present [d]ecision that all undertakings subject to the present procedure were involved in collusive activities concerning paraffin waxes and, for those companies identified in recital (2), slack wax … and regularly attended meetings at which the following items were at issue:
(1)
price fixing[;]
(2)
… customer and/or market allocation[;]
(3)
disclosure and exchange of commercially sensitive information, in particular information relating to customers, pricing, production capacities and sales volumes …
5.3.2.2.
Price fixing
(240)
Recitals (98), (107), (126), (128), (131), (133), (135), (137), (139), (140), (142), (145), (147), (149), (152), (153), (156), (157), (163), (168), (174), (176) and (177) demonstrate that the undertakings involved fixed minimum prices and agreed on price increases (“price fixing”).
(241)
ExxonMobil, Repsol, Sasol and Shell confirmed that price-fixing occurred [see recital 107] and reconfirmed this at the oral hearing and in their written replies to the statement of objections.’
– The imputability to H&R ChemPharm of Mr G.’s presence at the technical meetings
The applicant claims that it cannot be found liable on the ground that Mr G. was present at the technical meetings. His tasks as product manager were limited to new product development, to the exclusion of any commercial activity or responsibilities for representing the applicant. In any event, he spent only 30% of his working time with the applicant.
According to the case-law cited at paragraph 73 above, the Commission’s power to impose a sanction on an undertaking where it has committed an infringement presumes only the unlawful action of a person who is generally authorised to act on behalf of the undertaking.
As for Mr G.’s responsibilities, the applicant made the following statement in its letter of 19 January 2007:
‘[Mr G.] held the post of product manager at SRS from 1994 until 1 July 2001 and in that capacity was an employee of that undertaking. On 1 July 2001 his post was transferred to H&R Management & Service [now H&R ChemPharm]. Consequently, since 2001, and to date, [Mr G.] has been employed by H&R ChemPharm … as product manager. … Since 1 January 2001 he has acted as sales manager of H&R Wax Company Vertrieb without being formally employed by that company … Since 1999 Mr G. has had the dual role of product manager and sales manager. As product manager, he constitutes the interface between production and distribution. Apart from consistently adapting production possibilities to market requirements, the product manager’s tasks consist, in particular, in providing technical assistance to customers for the application of the products. In that dual role, [Mr G.] assumes responsibility for customers’ technical questions and, working with [Mr H.], also commercial questions. That dual role is provided for in the contract of employment concluded with H&R ChemPharm.’
In addition, in its letter of 8 December 2005 stated the following:
‘From the time when [H&R ChemPharm] entered the paraffin waxes sector in 1994 and until 2001, [Mr W.] was responsible for distribution. [Mr W.] has been retired since the end of 2001. With a view to [Mr W.’s] planned retirement, it was first of all [Mr H.] who [since 1997] came to reinforce that department, being joined in 1999 by [Mr G.] Those two persons are still responsible for the distribution of paraffins.’
In the first place, it must be considered that, in his capacity as H&R ChemPharm’s product manager, Mr G. was authorised to act on behalf of that undertaking. Such a conclusion is borne out by the applicant’s statement that one of Mr G.’s tasks was to ‘provide technical assistance to customers for the application of its products’, which implies that he was authorised to act vis-à-vis customers on behalf of the applicant in the exercise of his purely production-related duties.
In the second place, the Court considers that Mr G.’s distribution-related duties are also relevant. The Commission has adduced evidence in the present case that the applicant’s employee, whose contract of employment with the applicant provided for duties related both to production and to distribution, was present at the anti-competitive meetings. It would be too easy for an infringement guilty of an infringement to avoid any penalty if it could validly raise against such a finding the fact that its employee was in reality acting at those meetings on behalf of another company. Such a solution could also allow the companies participating in cartels to avoid any liability by creating situations of dual employment with a company not involved in the cartel, by claiming that the joint employee acted solely on behalf of that other company.
In the third place, it should be borne in mind that the applicant itself stated that Mr G. constituted the ‘interface between production and distribution’ and was responsible for ‘consistently adapting production possibilities to market requirements’, also assuming responsibilities for ‘commercial questions’. Such a position enabled Mr G. to influence the applicant’s commercial conduct in the light of the information obtained at the technical meetings, in particular on ‘market requirements’, the manipulation of which is frequently an aim of the collusive activities between competitors, and thus to enable the applicant to benefit from those activities.
In the fourth place, as already observed at paragraph 58 above, the applicant’s assertion that Mr G. devoted only 30% of his working time to the applicant is irrelevant. Even very brief periods spent in contact with the production company could enable information obtained during the anti-competitive meetings to be communicated or instructions determined in the light of that information to be given, taking into account the arrangements decided on during the anti-competitive meetings.
In the fifth place, the applicant’s argument that it was not involved in the distribution of paraffin waxes is contradicted not only by the fact that Mr G.’s duties as sales manager were provided for in his contract of employment with the applicant, but also by the fact that from 28 February 2001 the applicant also employed Mr W. as sales director.
In the light of the foregoing, it must be concluded that the Commission did not err in considering that the employment relationship between Mr G. and the applicant justified the latter’s being found liable in respect of the former’s acts.
– The applicant’s offer to adduce evidence
The applicant offers as evidence the testimony of its manager, Mr S., in order to demonstrate that Mr G.’s responsibilities with the applicant were limited to new product development.
In that regard, it should be observed that the applicant itself has stated, in tempore non suspecto, that Mr G. carried out tasks connected with distribution and that he was the interface between production and distribution. The probative value of those statements is higher than that of testimony drawn up in tempore suspecto and they therefore enable the Court to substantiate the conclusion set out at paragraph 135 above and to reject the applicant’s present complaint. The applicant’s offer of evidence is therefore rejected.
– Global assessment of the evidence supporting the existence of an infringement committed by the applicant
In the first place, it should be observed that a number of undertakings have admitted that the prices of paraffin waxes were discussed at the technical meetings with the general objective of reaching agreement on their level.
In particular, according to Sasol’s statement of 12 May 2005, the technical meetings generally resulted in collusive activity, in so far as increases and reductions of paraffin waxes prices were discussed in those meetings and information on overall prices and capacity planning was exchanged.
According to Repsol’s statement of 19 May 2005, discussion of the levels of paraffin waxes prices charged by participants formed part of the technical meetings.
Shell stated that all the technical meetings concerned price fixing. According to its statement of 14 June 2006, at least since 1999, when its representative who had given evidence began to participate in the technical meetings, the prices of paraffin waxes were never decided unilaterally but were always fixed by competitors at technical meetings.
In addition, those undertakings also asserted, in those statements, that at a number of technical meetings the participants had in fact agreed on minimum prices or price increases, sometimes even on the means of applying increases.
It should be emphasised that, in particular in the statements referred to at paragraphs 139 to 141 above, and also in Sasol’s reply of 18 December 2006 to a request for information from the Commission, reference was made to the participation of the entities SRS, SRS/Tudapetrol, H&R/Tudapetrol or Hansen & Rosenthal in the technical meetings and Mr G., an employee of the applicant, was mentioned by name as being present at those meetings.
Furthermore, it should be observed that the Commission referred to the statements in question at recitals 107 and 113 to the contested decision.
Those statements were made on the basis of the testimony of the individuals who had participated in the technical meetings, they were made after mature reflection and they also incriminate the undertakings on whose behalf they were made. In addition, the statements are agreed on the broad outlines of the description of the infringement, which further increases their reliability. Thus, within the meaning of the case-law cited at paragraph 116 above, they are particularly reliable.
In the second place, it must be emphasised that the statements referred to at paragraphs 139 to 141 above are borne out by written notes contemporaneous to the technical meetings which the Commission found during the inspections, to which the access had access during the administrative procedure and which are cited in part at recitals 165, 173, 174 and 177 to the contested decision. The notes by Mr SC. referred to at recital 173 to the contested decision, the Total note referred to at recital 174 and the MOL note referred to at recital 177 to that decision are handwritten notes drawn up during the meetings by the person attending them and their content is structured and relatively detailed. Their probative value is therefore very high. As regards Sasol’s ‘Blauer Salon’ minute (recital 163 to the contested decision) and the Eni note (recital 165 to the contested decision), these are documents dating from the time of the infringement which were drafted in tempore non suspecto, shortly after the technical meetings to which they refer. Their probative value is therefore high.
In the third place, it should be observed that, according to the contested decision, during the period of its participation in the infringement (from 1 July 2001 to 28 April 2005), the applicant was represented by Mr G. at each of the 14 technical meetings that took place. The applicant does not deny that Mr G. participated in each of those technical meetings.
As regards agreements of an anti-competitive nature which, as in the present case, become evident at meetings of competing undertakings, the Court of Justice has already held that an infringement of Article 81 EC was constituted when those meetings had the object of restricting, preventing or distorting competition and were thus aimed at artificially organising the functioning of the market. In such a case, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anti-competitive nature were concluded in order to prove that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward indicia to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (
Aalborg Portland and Others
v
Commission
, paragraph 77 above, paragraph 81, and Joined Cases
C-403/04 P and C-405/04 P
Sumitomo Metal Industries and Nippon Steel
v
Commission
[2007] ECR I-729
, paragraph 47).
The reason underlying that rule is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking gave the other participants to believe that it subscribed to what was decided there and would comply with it (
Aalborg Portland and Others
v
Commission
, paragraph 77 above, paragraph 82, and
Sumitomo Metal Industries and Nippon Steel
v
Commission
, paragraph 149 above, paragraph 48). The principles established in that case-law are also applicable to meetings giving rise to concerted practices, as defined in the case-law cited at paragraph 97 above.
In the present case, the applicant does not claim to have publicly distanced itself from what was discussed during the anti-competitive meetings.
In the fourth place, it should be borne in mind that an undertaking may be held responsible for an overall cartel even though it is shown to have participated directly only in one or some of its constituent elements if it knew, or must have known, that the collusion in which it participated, especially by means of regular meetings organised over several years, was part of an overall plan intended to distort normal competition and that the overall plan included all the constituent elements of the cartel. Likewise, the fact that different undertakings have played different roles in the pursuit of a common objective does not mean that there was no identity of anti-competitive object and, therefore, of infringement, provided that each undertaking has contributed, at its own level, to the pursuit of the common objective (see
JFE Engineering and Others
v
Commission
, paragraph 105 above, paragraph 370 and the case-law cited).
First, it is appropriate to examine the applicant’s arguments that, in the case of certain technical meetings, the Commission has not succeeded in reconstituting the content of the discussions, so that those meetings may have related only to the aspects of the infringement — customer-sharing and arrangements concerning slack wax — for which it has not been held liable.
First of all, it should be observed that the Commission has evidence showing that at least one discussion on prices generally took place during the technical meetings. In particular, in its statement of 12 May 2005, Sasol stated that the technical meetings generally resulted in collusive activity, in so far as ‘price increases and reductions were discussed’ in those meetings and information on overall prices and capacity planning was exchanged. According to Repsol’s statement of 19 May 2005, discussion of the price levels charged by participants formed part of the technical meetings. Shell stated that all the technical meetings concerned price fixing (see also paragraphs 139 to 141 above). The applicant cannot validly contend that such matters were raised for the first time in the defence, since the Commission referred to the Sasol, Repsol and Shell statements at recital 107 to the contested decision and they were made available to the applicant during the administrative procedure.
Next, it should be added that, at recital 240 to the contested decision, the Commission stated that proof that the undertakings in question fixed minimum prices and agreed on price increases was to be found at, inter alia, recitals 163, 168, 174, 176 and 177 to the contested decision. In addition, the Commission stated at recitals 165 and 175 to the contested decision that the participants in those technical meetings had exchanged commercially sensitive information on paraffin waxes, concerning, in particular, price levels. The abovementioned recitals contain citations of written evidence contemporaneous with the technical meetings showing exchanges of information on prices, the willingness to increase or stabilise prices, even, in certain cases, agreed price increases, and they are supplemented by the references to statements of undertakings.
It must be concluded, therefore, that, in general, the contested decision contains substantiated proof of the applicant’s liability for the infringement.
The other arguments put forward by the applicant cannot alter that finding.
In the first place, it should be noted that the alternative explanations put forward by the applicant relate each time to a particular technical meeting. Thus, they are not capable of constituting a plausible alternative explanation in respect of the body of evidence gathered by the Commission, which enabled it to establish the existence of a single and continuous infringement.
In the second place, a large part of the applicant’s argument relates to the alleged absence of an agreement to fix the prices of paraffin waxes. However, such an argument is irrelevant.
As is clear from the case-law cited at paragraph 96 above, an agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation. Accordingly, for the purpose of applying Article 81 EC in the present case, the Commission did not need to show that the participants actually agreed on specific price levels or specific detailed measures to increase prices. It was sufficient to demonstrate a concurrence of wills between the participants with the aim of fixing or aligning prices. The applicant puts forward no specific argument to counter the statements of Sasol, Repsol and Shell, according to which the aim of the technical meetings was price fixing.
Next, the Commission has a body of incontrovertible evidence showing that the participants regularly exchanged information on their prices and proposed increases during the technical meetings, and did so over more than 12 years, including during the period of H&R ChemPharm’s participation. However, the applicant has provided no consistent explanations of those activities such as to render implausible the Commission’s assertion that the raison d’être of those practices was, in particular, price fixing. On the contrary, the long period over which the anti-competitive meetings concerning prices were systematically held constitutes in itself an indicium that the participants’ objective was to harmonise their pricing policies, knowingly substituting cooperation among them for the risks of the market.
Furthermore, according to the case-law cited at paragraph 98 above, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which the operator concerned has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition. The applicant does not deny either having had such contact or having exchanged sensitive information at the technical meetings.
In the light of the foregoing, it must be held that the applicant’s arguments are generally not such as to undermine the validity of the Commission’s assessment as set out in the contested decision. In what follows, the Court will examine, first, the situation prevailing when the applicant commenced its participation in the cartel and, second, certain particular technical meetings, in order to verify the Commission’s establishment of the beginning and the end of the applicant’s participation in the infringement, and also the finding that the technical meetings in question did in fact relate to the main aspect of the infringement, in respect of which the applicant has been found liable.
– The starting date of the applicant’s participation in the infringement
As a preliminary point, it is appropriate to describe the relevant events preceding the time when Mr G. took up his post with the applicant, on 1 July 2001. Such an examination will make it possible to ascertain whether Mr G. was aware of the main aspect of the infringement (price fixing and the exchange of information on paraffin waxes prices) and whether on that date the anti-competitive pricing arrangements were capable of influencing H&R ChemPharm’s competitive conduct.
In the first place, in that regard, it should be observed that Tudapetrol, the company that sold the applicant’s paraffin waxes until 1 May 2000, had participated in the cartel from 24 March 1994, being represented at the technical meetings by its employee Mr W. Tudapetrol’s participation in the main aspect of the infringement is well documented and examined in detail in the judgment in the related case T‑550/08
Tudapetrol
v
Commission
.
Next, H&R Wax Company Vertrieb, which took over the role as distributor of the applicant’s paraffin waxes from 1 May 2000, also participated in the cartel from 1 January 2001, being represented at the technical meetings by its employee Mr H. In its reply to the statement of objections and in its written submissions to the Court, the applicant does not deny that H&R Wax Company Vertrieb and the applicant are part of the same undertaking (recital 381 et seq. to the contested decision). Furthermore, it is also apparent from the file that Mr H. and Mr G. worked closely together and that they together represented the H&R group at at least 13 technical meetings, including those held on 25 and 26 May 2000, 22 and 23 February 2001 and 26 and 27 April 2001 (at the time of those technical meetings, Mr G. was product manager at SRS, an indirect subsidiary of the applicant).
In the second place, in that regard, it is necessary to bear in mind Sasol’s reply of 18 December 2006 to a request for information, in which it stated:
‘With regard to the beginnings of the Blue Saloon [the term used by Sasol to designate the technical meetings, also designated the “Blauer Salon” meetings], … these meetings began as a “German circle” with the participants Deutsche Texaco AG (today Shell/DEA), HOS (today Sasol), Wintershall (the paraffin wax business of which is today Hansen & Rosenthal) and Arco (the paraffin wax business of which was later acquired by HOS). At that time, Wintershall was a subsidiary of BASF. Wintershall was represented by [Mr W.] who was one of the “founding fathers” of the Blue Saloon. Wintershall/BASF participated regularly in the Blue Saloon meetings (represented by [Mr W.]). … BASF’s (indirect) involvement ended in 1994 when the wax activities of Wintershall were acquired by Hansen & Rosenthal (at the time: SRS). From then on, [Mr W.] and [Mr H.], son of [Mr HA.] (Hansen & Rosenthal’s major shareholder), attended the Blue Saloon meetings for Hansen & Rosenthal. After [Mr W.’s] retirement, [Mr H.] took over [Mr W.’s] role, together with [Mr G.].’
Mr G.’s participation, his role as representative of the entity ‘H&R/Tudapetrol’ at the technical meetings and the fact that he and Mr H. took over Mr W.’s role after the latter’s retirement were also confirmed by Repsol, Shell and ExxonMobil.
In addition, Mr W., who was present at numerous technical meetings from 1994 and, according to Sasol, was ‘one of the founding fathers’ of the anti-competitive meetings, was also employed by the applicant from 28 February 2002.
In the third place, it should be observed that before the professional relationship between H&R ChemPharm and Mr G. began, Mr W. had already taken part in the technical meetings held on 25 and 26 May 2000 (recital 159 to the contested decision), 22 and 23 February 2001 (recital 161 to the contested decision) and 26 and 27 April 2001 (recital 162 to the contested decision). As regards those technical meetings, Shell, Sasol and Repsol independently stated that they had an anti-competitive content. In any event, the Commission has evidence that at least one discussion on prices generally took place at the technical meetings (see paragraph 153 above).
Furthermore, it should be borne in mind that, according to the evidence in the Commission’s possession cited at recital 159, during the technical meeting held on 25 and 26 May 2000 prices for a specific customer were discussed and that during that discussion Total was alleged to have sold at prices that were too low. That technical meeting was therefore certainly connected with the main aspect of the infringement, in respect of which the applicant is found liable for a subsequent period.
In addition, while it is true that the Commission has not found any documents showing Mr G.’s travel expenses in relation to the technical meeting held in Paris (France) on 26 and 27 June 2001 (recital 163 to the contested decision), the fact remains that the presence of ‘SRS-Tuda’ was indicated in Sasol’s ‘Blauer Salon’ debriefing note relating to that meeting. Mr G., then employed by SRS, was present at the two previous technical meetings and at the 14 technical meetings subsequent to that meeting. In any event, Mr G. represented the H&R group at the technical meetings in close collaboration with Mr H., which facilitated the exchange of information. In the light of the fragmentary and incomplete nature of the material which the Commission was able to assemble (see the case-law at paragraph 111 above) in relation to the facts concerning the secret cartels, requiring the reconstitution of the relevant circumstances, it must be held, on the basis of the abovementioned material, that the applicant was aware of the content of that meeting.
At recital 163 to the contested decision, the Commission cited the Sasol ‘Blauer Salon’ debriefing note relating to the meeting held on 26 and 27 June 2001 in Paris, which contains, in particular, the following observations:
‘during July: cancel prices of special customers … at earliest possible date …
end of August: cancel all prices by 30/09.01.
By 1/10.01 + [EUR] 7,-’
According to the contested decision, ‘[t]his shows that the individuals representing the companies agreed on price increase for paraffin of EUR 7 by 1 October 2001, preceded by a cancellation of all existing price arrangements beginning in the second half of that year and concluded by 30 September’.
Thus, it must be held that a price-fixing agreement was reached at the technical meeting held on 26 and 27 June 2001.
Therefore, in order to summarise the foregoing, it should be borne in mind that, first, Mr G., in collaboration with Mr H., took over Mr W.’s role at the technical meetings. During Mr W.’s participation, Tudapetrol, the distributor of the applicant’s products, participated in the practices aimed at fixing the prices of paraffin waxes. Mr W. was employed by the applicant from 1 July 2001. Second, H&R Wax Vertrieb, a company indirectly holding shares in the applicant and the applicant’s distributor, had already been participating in the infringement since 1 January 2001, being represented by Mr H., with whom Mr G. worked in close collaboration. Third, Mr G. was present at the technical meeting held on 25 and 26 May 2000, during which the prices of paraffin waxes were discussed. Fourth, the Commission has shown that the entity ‘H&R/Tudapetrol’ was present at the technical meeting held in Paris on 26 and 27 June 2001, that H&R was represented at that time by Mr H. and Mr G., and that a price fixing agreement was reached during that meeting. Fifth, it should be borne in mind (see paragraphs 139 to 141 and 153 above) that the Commission has evidence that at least one discussion on prices was generally held at the technical meetings. Mr G. was present at at least three technical meetings that took place before the start of the period during which the applicant is found to have participated in the infringement.
In the light of those factors, it must be stated that Mr G. must have been aware of the main aspect of the infringement, that is to say, ‘agreements or concerted practices relating to price-fixing and the disclosure of sensitive business information’ affecting paraffin waxes when he took up his post with the applicant. He had information about the operation of the cartel, that is to say, about the arrangements for fixing the prices of paraffin waxes and/or the mechanisms whereby the participants knowingly substituted practical cooperation among themselves for the risks of competition in that sector. Also, the responsibilities carried out by Mr G. under his contract of employment with H&R ChemPharm enabled him to influence the latter’s commercial conduct in such a way that it would be able to derive an advantage from his knowledge about the cartel.
Thus, the applicant was already in possession of information about the operation of the cartel, in particular, about its main aspect, and had that information on 1 July 2001, which enabled it to adjust its commercial conduct to the collusive arrangements from that date.
The Commission therefore did not err in taking 1 July 2001 as the starting date of the applicant’s participation in the infringement.
– The applicant’s arguments concerning certain particular technical meetings
In what follows, the Court will examine the content of certain technical meetings held during the period of the applicant’s participation in the cartel.
In the first place, as regards the technical meeting held on 4 and 5 September 2001 (recital 164 to the contested decision), the applicant claims that it cannot be found liable in respect of that meeting, since only a general anti-competitive content was established by the Commission in the contested decision, without any reference to the applicant’s involvement in any unlawful activity.
In that regard, it should be borne in mind that that technical meeting formed part of a long series of anti-competitive meetings constituting a single and continuous infringement and that the Commission has evidence that there was generally at least one discussion of prices during the technical meetings (see paragraph 153 above).
In addition, as the Court observed at paragraph 176 above, Mr G. was aware when he first took up his post with the applicant, on 1 July 2001, and therefore at the meeting held on 4 and 5 September 2001, that the technical meetings gave rise to anti-competitive discussions of the prices of paraffin waxes.
Next, it should be borne in mind that, according to the case-law cited at paragraphs 148 and 149 above, when an undertaking’s participation in an anti-competitive meeting has been established, it is for that undertaking to establish that it distanced itself from the anti-competitive content of that meeting, which the applicant has not done in the present case.
Accordingly, the Commission did not err in finding the applicant liable in respect of the technical meeting held on 4 and 5 September 2001.
In the second place, it is appropriate to examine the technical meeting held in Budapest (Hungary) on 21 and 22 February 2002 (recital 165 to the contested decision).
The applicant claims that the Eni note to which the Commission refers in the contested decision does not constitute an indicium of any collusion on prices at that meeting.
As regards the content of the Eni note, the Commission cited the following passage in the contested decision:
‘The meeting which took place in an extremely transparent climate has confirmed — also taking into account the differences of the individual markets and the different strategies with respect to products and marketing — the possibility to increase the revenue in line with the actions we already adopted. We can therefore continue the actions under way of revision of contractual formats and relative prices which will naturally involve our major clients/distributors of paraffin.’
According to the contested decision, the content of that note shows that discussions on price levels took place. That interpretation must be confirmed. The fact that the Eni note mentions the revision of prices as being the step to continue in the light of the discussions carried out at the meeting indicates that the participants exchanged information on prices. That, moreover, is borne out by Shell’s leniency application of 30 March 2005, which includes the technical meeting in question on the list headed ‘Overview of meetings and communications concerning prices’.
In the light of those considerations, the applicant cannot seriously deny that that meeting formed part of the main aspect of the infringement. Since the applicant was present at that meeting without showing that it distanced itself from the anti-competitive content of the meeting, the Commission did not err in holding the applicant liable in respect of that technical meeting.
In the third place, it is appropriate to examine the technical meeting held in Munich (Germany) on 27 and 28 February 2003 (recital 169 to the contested decision).
The Commission cites a Sasol statement in the contested decision, according to which ‘the need of a price increase was discussed in the … meeting’.
The applicant relies on the established principle that the statement of a single undertaking, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof that an infringement has been committed (see paragraph 117 above).
However, that is not the case here. As is clear from recital 169 to the contested decision, Shell and Repsol had independently confirmed that the technical meeting in question had an anti-competitive content. While it is true that those undertakings did not specify that conduct, it should be borne in mind that the Commission has evidence that at least one discussion on prices generally took place at the technical meetings (see paragraph 153 above).
Next, it should be borne in mind that, according to the case-law cited at paragraphs 148 and 149 above, where an undertaking’s participation in an anti-competitive meeting has been established, it is for that undertaking to show that it distanced itself from its anti-competitive content, which the applicant has not done in the present case.
In the light of those considerations, it must be established, contrary to the applicant’s assertions, that that meeting forms part of the main aspect of the infringement. As the applicant was present at that meeting without having shown that it distanced itself from its anti-competitive content, the Commission did not err in finding the applicant liable in respect of that meeting.
In the fourth place, it is appropriate to examine the technical meeting held in Hamburg (Germany) on 11 and 12 May 2004 (recital 174 to the contested decision).
In that regard, the handwritten note found at Total France’s premises contains the following:
‘-> Sasol [EUR]40 /[USD]50 — End of July.
-> We: 38 — 28.
-> 1 July —
+ FRP:70 -> [EUR]6000/T
+ Tealight: 50 -> [EUR]500/T
+ Microwax: 25 -> [EUR]50/T
…
-> → [EUR]40/T Slack Wax’.
The applicant claims that that note is merely an aide-mémoire prepared by Total, concerning unilateral conduct on the part of Sasol, and does not demonstrate the existence of an agreement between Sasol and Total, still less between those two undertakings and the applicant.
It should be observed that that alternative interpretation supplied by the applicant is contradicted by the statements of the other undertakings that participated in that technical meeting. Sasol stated that the participants had discussed an increase in prices and Shell indicated that an increase in prices had been agreed on during that technical meeting. The Commission cites at recital 174 to the contested decision the Shell statement, the terms of which are as follows:
‘Sasol was pushing for a price increase for paraffin waxes. It was also agreed that Sasol would take the lead in implementing it. The price increase took effect between 1 July … and 1 August 2004.’
Furthermore, in its statement of 12 August 2005, Sasol also asserted that, ‘[b]ecause of drastically increased raw material prices, HOS [now Sasol] sent out a chain letter announcing a price increase of EUR 5-7/100kg on June 14, 2004 …’ and that ‘[o]n June 29, 2004, HOS received a price increase letter of Hansen & Rosenthal announcing an increase of EUR 5.20-6.80/100kg’.
It therefore follows from that statement that Sasol meant to increase its prices by exactly the same amount as that indicated in the Total note and that, subsequently, H&R also sent a letter announcing price increases, indicating an increase very close to Sasol’s.
In any event, it should be borne in mind that, according to the case-law cited at paragraphs 148 and 149 above, when it has been established that an undertaking participated in an anti-competitive meeting, it is for that undertaking to show that it distanced itself from the anti-competitive content of the meeting, which the applicant did not do in the present case.
In the light of those factors, it must be concluded that the Commission had sufficient proof to conclude that a price-fixing agreement was reached at that meeting and the applicant’s arguments must be rejected. The Commission therefore did not err in finding the applicant liable in respect of that technical meeting.
In the fifth place, it is appropriate to examine the technical meeting held in Hamburg on 23 and 24 February 2005 (recital 177 to the contested decision).
The Commission cites, in the contested decision, a MOL note containing the following:
‘ExxonMobil IV.1 [= 1 April] EUR 15/t’
‘Shell Raised price’
‘Sasol IV.12 [= 12 April] Price raise’
Sasol admitted that a price increase was discussed and that it communicated its own price increase to the other participants. The applicant also acknowledged the existence of a ‘discussion on general pricing trends, during which Exxon and Sasol revealed their price increases, decided at internal level’, in its reply to the statement of objections. Both Shell and Sasol described that meeting as collusive in the statements referred to in the contested decision.
During the proceedings before the Court, the applicant claimed that it could not be found liable in respect of that meeting, since no agreement on prices had been concluded and since the evidence in the Commission’s possession shows at most the existence of bilateral collusion concerning Repsol and Total. In any event, the MOL note shows that the applicant did not participate in an infringement, as only ExxonMobil, Shell and Sasol are mentioned as participants.
That argument cannot succeed. It should be borne in mind that, according to the case-law, in order to establish the existence of an agreement, it is sufficient to demonstrate a concurrence of wills between the participants with the aim of fixing or aligning prices (see paragraph 96 above). In any event, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as to influence an actual or potential competitor’s conduct on the market (see paragraph 98 above). The exchange of information on prices by competitors emerges incontestably from the MOL note and the undertakings’ statements dispel all reasonable doubt as regards the collusive nature of the technical meeting. In addition, it also follows from the evidence gathered by the Commission that the content of the meeting related to the main aspect of the infringement.
According to the case-law cited at paragraphs 148 and 149 above, when it has been established that an undertaking participated in an anti-competitive meeting, it is for that undertaking to establish that it distanced itself from the anti-competitive content of the meeting, which the applicant has not done in the present case.
It follows that the Commission did not err in finding the applicant liable in respect of that technical meeting.
In the light of all of the foregoing considerations, it must be concluded that the Commission was correct to find, in the contested decision, that the infringement in this instance concerned the collusive activities during which the fixing of the prices of paraffin waxes was discussed. Likewise, the Commission has shown to the requisite legal standard that at certain meetings the participants arrived at price fixing agreements.
In the light of the foregoing, the Commission’s finding that the applicant participated in the main aspect of the infringement between 1 July 2001 and 28 April 2005 must be upheld and the first part of the second plea must therefore be rejected.
Second part of the second plea
The applicant claims that it cannot be held vicariously liable for the infringement either. The Commission has neither established nor specifically relied on the existence of an infringement committed by the applicant’s subsidiaries. Nor was the applicant’s parent company, H&R WASAG, personally involved in the infringement.
In that regard, it is sufficient to recall that the Commission has established to the requisite legal standard that the Commission had participated in the main aspect of the infringement between 1 July 2001 and 28 April 2005, owing to the presence of Mr G., an employee of the applicant, at the technical meetings the anti-competitive content of which was demonstrated (see paragraph 212 above).
Accordingly, the arguments whereby the applicant seeks to demonstrate that it is not vicariously liable for the acts of its subsidiaries or of its parent company are irrelevant. Consequently, the second part of the second plea must be rejected as inoperative.
Third plea, alleging an error of calculation in the determination of the value of sales
By its third plea, put forward in the alternative, the applicant claims that the Commission erred in determining its turnover on the markets affected by the cartel (the value of sales according to the 2006 Guidelines) which was taken into account in calculating the basic amount of the fine and that it thus infringed Article 23(3) of Regulation No 1/2003. That error has the consequence that the Commission fixed the basic amount used for the purpose of calculating the amount of the applicant’s fine at too high a level.
Preliminary observations
According to section 6 of the 2006 Guidelines, the combination of the value of sales to which the infringement relates and of the duration of the infringement is to be regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement.
According to sections 15 and 16 of those Guidelines, in determining the value of sales by an undertaking, the Commission is to take that undertaking’s best available figures. Where the figures made available by an undertaking are incomplete or not reliable, the Commission may determine the value of its sales on the basis of the partial figures it has obtained or any other information which it regards as relevant and appropriate.
It should be borne in mind that, according to the case-law, the self-limitation of the Commission’s discretion arising from the adoption of the Guidelines is not incompatible with the Commission’s maintaining a substantial margin of discretion. The 2006 Guidelines display flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with Regulation No 1/2003, as interpreted by the Courts of the European Union (
Dansk Rørindustri and Others
v
Commission
, paragraph 40 above, paragraph 267, and Case T‑21/05
Chalkor
v
Commission
[2010] II‑1895, paragraph 62).
However, when calculating the amount of fines such as that at issue in the present case, the Commission is required to observe the general principles of law, especially the principles of equal treatment and proportionality (see, to that effect, Case
T-279/02
Degussa
v
Commission
[2006] ECR II-897
, paragraphs 77 and 79, and Case
T-69/04
Schunk and Schunk Kohlenstoff-Technik
v
Commission
[2008] ECR II-2567
, paragraph 41).
Furthermore, the discretion enjoyed by the Commission and the limits which it has placed on that discretion in the Guidelines do not, in principle, prejudge the exercise by the Courts of the Union of their unlimited jurisdiction, which empowers them to annul, increase or reduce the fine imposed by the Commission (see Case
T-127/04
KME Germany and Others
v
Commission
[2009] ECR II-1167
, paragraph 37 and the case-law cited).
In the present case, the Commission calculated the value of sales of all the undertakings participating in the cartel until the time when the cartel ceased, taking into account the average turnover on the markets affected by the cartel during the last three full years of the infringement, namely 2002, 2003 and 2004. The applicant does not dispute that approach, which, moreover, is properly reasoned, at recital 634 to the contested decision, by the impact of the enlargement of the European Union in 2004.
At recital 640 to the contested decision, the Commission fixed the value of sales of the product to which the infringement by the H&R group related, during the period 2002 to 2004, at an annual amount of EUR 26 012 309. At paragraph 79 of the defence, the Commission explains that it reached that result in reliance of a turnover of EUR 20 594 125 in 2002, EUR 18 042 804 in 2003 and EUR 39 400 000 in 2004.
The turnover taken into account for 2002 and 2003
It should be stated at the outset that the entire capital of the companies Klaus Dahleke, Tudapetrol and Hansen & Rosenthal is owned by the same four natural persons, namely the H. family. None of those three companies owns any shares in the other two. Klaus Dahleke, Tudapetrol, Hansen & Rosenthal, the latter’s subsidiary H&R Wax Company Vertrieb and H&R Sales (an indirect subsidiary of H&R ChemPharm) were frequently referred to by the applicant in its correspondence with the Commission as the ‘distribution companies’. Those ‘distribution companies’ were responsible for marketing the paraffin waxes produced by the ‘production companies’, that is to say, by H&R ChemPharm and its subsidiaries. In order to calculate the amount of the fine, the Commission took into account the value of sales of the ‘distribution companies’. It imposed a separate fine on Tudapetrol, calculated on the basis of the latter’s turnover. However, as Klaus Dahleke was not penalised in the contested decision, its turnover on the markets affected by the cartel was added to that of H&R and H&R Wax Company Vertrieb. For 2004, the value of sales of H&R Sales was also added. That combined value of sales served as the basis for the calculation of the amount of the fine imposed on Hansen & Rosenthal and its subsidiary H&R Wax Company Vertrieb and also on H&R ChemPharm.
As regards 2002 and 2003, the applicant claims, in essence, that the Commission ought to have taken the turnover of Hansen & Rosenthal and its subsidiary H&R Wax Company Vertrieb into account, but not that of Klaus Dahleke, which was not part of the same undertaking.
In the first place, it is appropriate to examine the letters on that subject which the applicant sent to the Commission during the administrative procedure.
In its letter of 8 December 2005, the applicant stated that the paraffin waxes which it produced had been marketed, since 1 January 2001, mainly by H&R Wax Company Vertrieb. It added that smaller quantities were also marketed for certain customers by Tudapetrol, Klaus Dahleke and Hansen & Rosenthal.
In its letter of 23 April 2008, the applicant communicated the turnover of its production companies, H&R Chemisch-Pharmazeutische Spezialitäten GmbH and H&R Ölwerke Schindler GmbH, on the territory of the European Union. Although the applicant, in answer to the written question put by the Court, refused to specify the capital links between it and those companies, it is apparent from the file that those two companies were the applicant’s direct or indirect subsidiaries during the infringement period.
In that letter, the applicant also communicated the turnovers of H&R Wax Company Vertrieb, Hansen & Rosenthal and Klaus Dahleke. It stated that the essential part of Klaus Dahleke’s turnover was achieved through the distribution of the products of the ‘production companies’, that is to say, H&R Chemisch-Pharmazeutische Spezialitäten and H&R Ölwerke Schindler, subsidiaries of the applicant.
Already in that letter, the applicant observed that the most accurate figures would consist in the external turnover of the distribution companies, that is to say, according to the terms of that letter, by the turnover of H&R Wax Company Vertrieb, Klaus Dahleke and Tudapetrol. The applicant also explained that the external turnover, namely sales by the distribution companies, did not necessarily exceed the internal turnover, namely that of the production companies. In fact, part of the products of the production companies was sole to the group’s other refineries as raw material, the remainder being sold to the distribution companies. However, even though part of the distribution companies’ sales was redirected to the group to cover its consumption of raw materials, the turnover of those companies was increased by the sale of the products affected by the cartel which it had bought from third parties and resold to third parties.
It was in those circumstances that the Commission requested further clarification from the applicant.
In its letter of 3 July 2008, the applicant therefore provided the following turnovers for the companies in the H&R group, but ‘without Tudapetrol’:
H&R Wax Company Vertrieb:
—
2002: EUR 19.78 million;
—
2003: EUR 17.32 million;
—
2004: EUR 17.88 million.
Klaus Dahleke:
—
2002: EUR 0.29 million;
—
2003: EUR 0.2 million;
—
2004: EUR 0.16 million.
Hansen & Rosenthal:
—
2002: EUR 0.52 million;
—
2003: EUR 0.52 million;
—
2004: EUR 0.86 million.
In the same letter, the applicant also communicated the aggregate turnover of the ‘distribution companies’, that is to say, the total of the turnovers of H&R Wax Company Vertrieb, Klaus Dahleke and Hansen & Rosenthal on the markets affected by the cartel:
—
2002: EUR 20.59 million;
—
2003: EUR 18.04 million;
—
2004: 19 million euros.
The applicant also explained in the same letter that the figures provided related to the external turnovers of the group, ignoring sales within the group.
In its letter of 7 July 2008, the applicant confirmed the amounts of the aggregate turnovers of H&R Wax Company Vertrieb, Hansen & Rosenthal and Klaus Dahleke, which it had already indicated in its letter of 3 July 2008 (see paragraph 233 above).
First, it should be observed that the turnover taken into account by the Commission for 2002 and 2003 corresponds exactly with the data communicated by the applicant in its letters of 3 and 7 July 2008.
The Commission thus relied on the data which it obtained from the applicant following an exchange of letters and telephone calls, taking into account its observations as to the existence of a discrepancy between the turnover resulting from sales within the group and that resulting from re-sales of paraffin waxes bought by the distribution companies from third parties.
Second, it should be emphasised that the applicant included Klaus Dahleke’s turnover in the H&R group’s turnover in each of the letters dealing with that matter, that is to say, in its letters of 23 April, 3 July and 7 July 2008. In addition, Klaus Dahleke is referred to in the applicant’s letter of 3 July 2008 (with H&R Wax Company Vertrieb and Tudapetrol) as being one of the three companies distributing the products affected by the cartel. At no time did the applicant indicate in its letters that in its view Klaus Dahleke’s turnover should not be taken into account when calculating the value of sales of the H&R group. On the contrary, even in its last letter, the letter of 7 July 2008, the applicant produced a single aggregate turnover, for each of the years concerned, for the ‘distribution companies’ H&R Wax Company Vertrieb, Hansen & Rosenthal and Klaus Dahleke, without mentioning that the latter’s turnover should be deducted from the amounts which it had indicated.
Third, it should be observed that the applicant’s approach in the administrative procedure as regards the inclusion of Klaus Dahleke’s sales in the data communicated, which was followed by the Commission, is justified, in the Court’s assessment, by the desire not to distort the weight of the infringement committed by H&R. The applicant states in its letter of 23 April 2008 that Klaus Dahleke’s turnover was ‘virtually exclusively’ generated by the distribution of the products of the ‘production companies’ of the H&R group. Accordingly, if Klaus Dahleke’s turnover were deducted from the sums communicated by the applicant in its letters of 3 and 7 July 2008, part of the production affected by the cartel would remain concealed, namely the paraffin waxes produced by the H&R group that are not marketed by Hansen & Rosenthal or H&R Wax Company Vertrieb, but by Klaus Dahleke.
Thus, the Commission acted in accordance with section 15 of the 2006 Guidelines, which provides that ‘[i]n determining the value of sales by an undertaking, the Commission will take that undertaking’s best available figures’, when it included Klaus Dahleke’s turnover in its calculation, in accordance with the preference expressed by the applicant, which indicated that the calculation should be based on the external turnover of the group. The Commission thus defined the value of sales of the H&R group in a way that reflects the gravity of the infringement committed by it, in accordance with the requirements of Article 23 of Regulation No 1/2003.
It should be added that, in the exercise of its unlimited jurisdiction, the Court examined in detail the correspondence exchanged between the Commission and the applicant during the administrative procedure, putting numerous written questions to the applicant in order to obtain further clarification of the relationships of supply between Klaus Dahleke and the ‘production companies’ owned directly or indirectly by the applicant. The answers to those questions did not show any errors in the Commission’s calculation. It should be added that certain of the answers proved to be inaccurate in the light of the documentation in the case and the assertions made by the applicant at the hearing.
In the second place, it is none the less appropriate to examine the applicant’s assertion that the inclusion of Klaus Dahleke in the undertaking H&R is contrary to the solutions that emerge from Case
C-196/99 P
Aristrain
v
Commission
[2003] ECR I-11005
, in so far as H&R and Klaus Dahleke do not belong to the same undertaking. According to paragraphs 98 and 99 of that judgment, the simple fact that the share capital of two separate commercial companies is held by the same person or the same family is insufficient, in itself, to establish that those two companies are an economic unit with the result that the actions of one company can be attributed to the other and that one can be held liable to pay a fine for the other.
It must be stated that, in the present case, unlike the situation examined by the Court of Justice in
Aristrain
v
Commission
, paragraph 242 above (paragraphs 98 and 99), it is not a matter of attributing the anti-competitive actions of Klaus Dahleke to the H&R group or to the applicant in particular, but of calculating the value of sales of the H&R group. It is common ground that Klaus Dahleke’s turnover, as concerns the products affected by the cartel, came ‘virtually exclusively’ from the re-sale of paraffin waxes produced, in 2002 and 2003, by the production companies of the H&R group, which were themselves involved in the cartel. It should be borne in mind that, according to the information before the Court, the term ‘production companies’ corresponds to the applicant and its direct and indirect subsidiaries.
The alternative to taking the external turnover into account would have been to take the ‘internal turnover’ into account and thus the turnover which the companies in the H&R group achieved by selling the products affected by the cartel to Klaus Dahleke. It was the stated preference of the applicant itself that the Commission should take into account the external turnover of the H&R group, which, according to the applicant, included the part of Klaus Dahleke’s turnover indicated in its letters of 3 and 7 July 2008. In any event, the Court put a written question on the supply relationship between the ‘production companies’ and Klaus Dahleke. However, the applicant provided no information that could have led the Court to alter its assessment of the situation in question.
Accordingly, in so far as
Aristrain
v
Commission
, paragraph 242 above, related to a factual situation significantly different from the present case, it cannot be validly invoked by the applicant.
On the basis of all of the foregoing, the Court concludes that the Commission did not infringe Article 23(3) of Regulation No 1/2003 when it determined the value of sales by the H&R group on the basis of the data supplied by the applicant in its letters of 3 and 7 July 2008, without deducting the turnover achieved by Klaus Dahleke.
Likewise, on the basis of the evidence made available to it by the parties, the Court considers that the value of sales calculated for 2002 and 2003 correctly reflects the gravity of the infringement committed by the applicant.
Accordingly, the present complaint must be rejected.
The calculation of the turnover for 2004 and the taking into account of the ‘companies abroad’ and of H&R ESP International
In the contested decision the Commission considered that:
‘…
(636)
H&R/Tudapetrol argues that 2004 should not be used as reference year in its case because the figures for 2004 include turnover of the company H&R ESP International which was only acquired on 1 January 2004. This acquisition led to more than a doubling of the overall turnover which is, according to H&R/Tudapetrol, not representative for the duration of the infringement. Moreover, H&R/Tudapetrol claims that the production facilities of H&R ESP International are partially not active in producing the products affected by the infringement.
(637)
Those claims cannot be accepted. An increase in turnover in a given year does not, as such, exclude that this year is used as a basis for the calculation [of the amount] of the fine. The fact that parts of H&R/Tudapetrol are not active in the products to which the infringement relates is properly reflected by the basic amount of the fines which does not take the value of sales in these products into account. As stated in recital (634), the Commission will, for other reasons, use the average of the value of sales of the years 2002, 2003 and 2004 as a basis for the calculation [of the amount] of the fine.’
In the defence, the Commission explained how it arrived at the amount of EUR 39.4 million taken as the value of sales of the undertaking H&R for 2004, taking into account the figures supplied by the applicant on pages 2 and 12 of its letter of 23 April 2008.
According to the information set out in the first column of figures on page 2 of that letter, the group turnover achieved in 2004 by the sale of the four categories of paraffin waxes concerned came to EUR 27.5 million, from which the Commission deducted the amount of Tudapetrol’s turnover (EUR 1.2 million). Thus, at the first stage, the Commission arrived at a turnover of EUR 26.3 million.
Next, the Commission added the turnover of the ‘companies abroad’, amounting to EUR 9.2 million (first column of figures on page 12 of the letter of 23 April 2008), and the turnover of H&R Ölwerke Schindler, amounting to EUR 3.9 million (second column of figures on page 12 of that letter). The addition of those amounts to the turnover of EUR 26.3 million taken for the H&R group was justified, according to the Commission, by the fact that, in particular on pages 1 and 12 of its letter of 23 April 2008, the applicant repeated stated that in its view neither the turnover of the ‘companies abroad’ nor the turnover of H&R Ölwerke Schindler, achieved through sales by H&R Sales, was covered by the Commission’s request for information, since those companies did not participate in the infringement.
Thus, by adding the turnover of the ‘companies abroad’ (EUR 9.2 million) and that of H&R Ölwerke Schindler (EUR 3.9 million) to the initial amount of EUR 26.3 million, the Commission established that the turnover of the H&R group for 2004, achieved with the products affected by the cartel, came to EUR 39.4 million.
The applicant puts forward three complaints to dispute that calculation. First, it claims that the value of sales of the ‘companies abroad’ and that of H&R Sales should not be taken into account, because those companies did not participate in the cartel. Second, in its submission the value of sales as thus calculated does not reflect the economic importance of the infringement which it committed. Third, the Commission added the relevant turnover of the ‘companies abroad’ twice to the value of sales of the H&R group.
– The inclusion in the calculation of the value of sales of sales by ‘companies abroad’ and by H&R Sales, acquired in 2004
The applicant claims that the relevant turnover of the ‘companies abroad’ and of H&R Sales should not be included in the value of sales by H&R, since those companies were acquired only in 2004 and no objection based on participation in the cartel was raised against them. In any event, the Commission ought to have ignored the turnover of the conversion facilities, which do not produce paraffin waxes.
In that regard, it should be borne in mind that, according to section 13 of the 2006 Guidelines, in determining the basic amount of the fine to be imposed, the Commission is to take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA.
Furthermore, according to the case-law, the value of sales to be taken into account is not calculated on the basis of the turnover achieved by the sale of the goods actually affected by the infringement, but on the basis of the turnover generally achieved on the market affected by the infringement by the undertaking within the meaning of Article 81 EC that participated in the infringement (see Case
T-211/08
Putters International
v
Commission
[2011] ECR II-3729
, paragraphs 59 to 61 and the case-law cited).
Accordingly, the mere fact that the ‘companies abroad’ and H&R Sales did not participate in the cartel before 2004 has no impact on the fact that in 2004 those companies became parts of the undertaking involved in the cartel, having been acquired by the H&R group. It should be emphasised in that regard that in the statement of objections, in particular at paragraphs 261 to 264, the Commission had already described the H&R group as an undertaking within the meaning of Article 81 EC and that the applicant did not dispute that characterisation in its reply to the statement of objections.
Furthermore, in the present case two companies in the H&R group were directly involved in the cartel in 2004, namely H&R Wax Company Vertrieb and H&R ChemPharm, owing to the participation in the technical meetings of Mr G. and Mr H., who occupied posts in those companies in 2004.
The applicant put a number of written questions to the applicant in order to clarify the identity of the ‘companies abroad’ and ‘the capital links between those companies, H&R Ölwerke Schindler, ESP International, H&R Sales and the H&R group’, in order to be able to locate those companies in the structure of the H&R group.
In its answer, the applicant expressly denied that it held shares in the ‘companies abroad’ and declined to state their identity.
The applicant also denied holding shares in H&R Ölwerke Schindler, ESP International and H&R Sales. That answer was manifestly untrue, as the applicant acknowledged at the hearing, after being confronted with the evidence in the Court’s possession. In fact, ESP International is a wholly-owned subsidiary of the applicant, while H&R Ölwerke Schindler is a wholly-owned subsidiary of the former company. Last, in 2004 H&R Sales was a wholly-owned subsidiary of H&R Ölwerke Schindler. The share capital of those companies was therefore wholly owned by the applicant during the relevant period.
In the light of the foregoing, the applicant has not shown that the Commission had erred in any way by including the value of sales by the ‘companies abroad’ and by H&R Sales in the value of sales by the H&R group for the purpose of calculating the value of sales for 2004.
Nor can the applicant validly claim that the Commission added the turnover of the conversion facilities, which do not produce paraffin waxes. As is clear from the explanations provided by the Commission in the defence, it arrived at the sum of EUR 26.3 million by adding only the four categories of paraffin waxes (hydrogenated solid paraffin, non-hydrogenated solid paraffin, paraffin wax and hydrogenated wax specialities) set out in the first column on page 2 of the applicant’s letter of 23 April 2008 and excluding both slack wax and the turnover of the conversion facilities. It did likewise with respect to the first and second columns of figures on page 12 of that letter (value of sales by the ‘companies abroad’ and by H&R Sales).
The Commission, which therefore took the value of sales by H&R for 2004 by taking into account the total turnover of the companies belonging to that undertaking achieved on the market affected by the cartel, acted consistently with the 2006 Guidelines and the applicable case-law and did not infringe Article 23(3) of Regulation No 1/2003. The present complaint must therefore be rejected.
– The increase in the average value of sales during the reference period owing to the taking into account of the turnover of the companies acquired in 2004
In the applicant’s submission, the fact that the turnover of the companies acquired in 2004 was taken into account had the effect that the value of sales taken into consideration, calculated as the average of values of sales for 2002 to 2004, no longer reflects the importance of the infringement.
It should be observed that a merger with an entity or the acquisition of an entity which did not participate in the infringement before the merger or acquisition may have an impact on the calculation of the value of sales where the value of sales after the merger or acquisition no longer constitutes, with respect to the total duration of participation in the infringement, an ‘appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of [the] undertaking in the infringement’ within the meaning of section 6 of the 2006 Guidelines (see paragraph 217 above).
In the present case, the Commission included in the reference period used for the calculation of the value of sales the three complete years of H&R ChemPharm’s participation in the infringement (2002 to 2004). The first period in respect of which the value of sales of the reference period was extrapolated (the period from 1 July 2001 to 31 December 2001) preceded the acquisition, so that the value of sales of 2002 and 2003 was representative in respect of it. The second period in respect of which the value of sales of the reference period was extrapolated (the period from 1 January 2005 to 28 April 2005) followed the acquisition, so that the value of sales of 2004 was representative in respect of it.
Therefore, in the particular circumstances of the present case, the Court considers that the average of the value of sales by the H&R group for 2002 to 2004 constitutes an ‘appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of [the] undertaking in the infringement’ for the entire duration of H&R ChemPharm’s participation.
Accordingly, the present complaint must be rejected.
It should be added that, in its judgment of 11 July 2014 in the related Case T‑540/08
Esso and Others
v
Commission
[2014] ECR, the Court reduced the amount of the fine imposed on Esso Société anonyme française in order to reflect the fact that the value of sales by the undertaking ExxonMobil, to which it belonged, had almost doubled following the merger between Exxon and Mobil in 1999 and that the value of sales, calculated solely on the basis of post-merger sales in 2000 to 2002, had also been extrapolated to the period 1992 to 1999, when only Mobil France had participated in the cartel.
Therefore, the factual context of
Esso and Others
v
Commission
, (paragraph 271 above) differs on a crucial point from that of the present case, since in that case the value of ExxonMobil’s post-merger sales did not constitute an ‘appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of [the] undertaking in the infringement’ with respect to the entire duration of the infringement by Esso Société anonyme française.
– The alleged double counting of the turnover of the ‘companies abroad’
The applicant claims that the Commission took into account the turnover of EUR 9.2 million of the ‘companies abroad’ twice. It claims that the difference between the first column of figures on page 2 of its letter of 23 April 2008 (EUR 27.5 million), which includes ESP International, and the second column (EUR 18.3 million), without ESP International, is precisely EUR 9.2 million. The Commission therefore took ESP International’s turnover into account twice.
In the reply, the applicant makes the following assertion:
‘51
However, even if the companies [abroad] (that is to say, ESP International) and H&R Sales GmbH were imputed for 2004 …, the figures on which the Commission relied are false and too high. The Commission incorrectly added the turnover of the companies [abroad] twice. The true figure for 2004 would be EUR 26.3 million with the companies [abroad] and EUR 30.2 million if H&R Sales were also added. In neither case would the total turnover for 2004 be EUR 39.4 million, the figure used by the [Commission]. That is demonstrated by the following:
[The] intermediate amount of EUR 26.3 million [resulting from the first column of figures on page 2 of the letter of 23 April 2008] already includes the turnover of the companies [abroad], which comes to EUR 9.2 million, as is quite clear from [that letter]. The [Commission] therefore [makes] the error … of again adding to that amount the sum of EUR 9.2 million in respect of the companies [abroad], thus doubling that part of the turnover. Thus, even taking the companies [abroad] into account, the [Commission] could validly take into consideration only an amount of EUR 26.3 million. If H&R Sales GmbH were further added, that amount would come to EUR 30.2 million — in neither case, however, [would it come] to EUR 39.4 million.’
In the first place, it should be observed that it is not possible to reconcile the arguments which the applicant put forward during the judicial proceedings with the information which it communicated in the context of the administrative procedure and which forms part of the file submitted to the Court.
First, it should be observed that, in its reply to the statement of objections, the applicant stated that the value of H&R’s sales on the paraffin waxes market (without taking into account sales by Tudapetrol and sales of wax emulsions and slack wax) was equivalent to EUR 38.99 million in 2004, a figure almost consistent with that calculated by the Commission (EUR 39.4 million).
Second, the applicant also stated, at the hearing before the hearing officer, that the acquisition of the new refinery at Hamburg-Neuhof (Germany), belonging to H&R Ölwerke Schindler, its turnover on the ‘paraffin products’ market had increased almost 2.5 times. It also provided figures in its letter of 8 December 2005 in that regard. According to those data, owing to the acquisition of new production capacity in 2004, the volume of its sales of paraffin waxes increased from 43000 tonnes in 2003 to 84 400 tonnes in 2004. The applicant also stated that the price of those products had increased in 2004.
According to the argument which the applicant put forward during the judicial proceedings, however, the value of sales by the H&R group increased only from EUR 24 107 000 in 2003 to EUR 26 300 000 in 2004. That alleged increase is not consistent with the growth in production and sales resulting from the acquisition of the Hamburg-Neuhof refinery and manifestly contradicts the information supplied by the applicant in the reply to the statement of objections.
Third, it should be observed that there are serious doubts as to the applicant’s assertion that the ‘companies abroad’ are identical to H&R ESP International.
In its letter of 8 December 2005, the applicant states that ESP International is the 100% parent company of H&R Ölwerke Schindler. In addition, it is apparent from the file that H&R Ölwerke Schindler and ESP International are companies governed by German law and their production factory is at Hamburg-Neuhof.
The Court is unable to understand why the applicant would have chosen to conceive the term ‘companies abroad’ in order to communicate the value of sales by only H&R ESP International, which is a company governed by German law and whose production factory is in Germany.
Furthermore, as the Commission correctly observes, the applicant did not at any time indicate in the numerous letters which it sent to the Commission during the administrative procedure that H&R ESP International corresponded to, or was included in, the concept of ‘companies abroad’. On the contrary, on the first page of the letter of 23 April 2008, the ‘companies abroad’ and H&R ESP International are presented side by side, actually giving the impression that they are two entities being treated separately. Furthermore, the reasons provided by the applicant in that letter to explain why the value of sales by those companies should not be taken into account are also separate. For the ‘companies abroad’, the applicant submits that they are ‘not covered by the investigation’, while for H&R ESP International it emphasises that that company was acquired only in 2004, which resulted in a ‘rise in turnover’.
Next, in its letter of 8 December 2005, the applicant also refers to the ‘sister companies’ of H&R Ölwerke Schindler that manage its conversion facilities abroad. In addition, according H&R Wasag’s activity report for 2004, the acquisition of the activities in the refinery specialities resulting from BP concerned only H&R Ölwerke Schindler, in Germany, and also H&R ESP Nuth BV, in the Netherlands. What is more, in its letter of 7 July 2008 the applicant states that the companies abroad, at Corryton and Chorley in the United Kingdom, achieved, according to an initial estimate, a turnover of EUR 8.6 million by the sale of paraffin waxes in 2004. Those factors indicate that the H&R group included companies established abroad, unlike H&R ESP International, which is established in Germany.
On the basis of the foregoing, it must be concluded that the applicant cannot validly take issue with the Commission for having added to the initial amount of EUR 26.3 million both the value of sales by H&R ESP International and that of the ‘companies abroad’. On the contrary, it is appropriate to take the view that, when calculating the value of sales for 2004, the Commission acted wholly in accordance with sections 15 and 16 of the 2006 Guidelines, cited at paragraph 218 above.
In the second place, the applicant cannot validly rely on the fact that the detailed calculation of the value of sales does not appear in the contested decision, but was presented by the Commission in its defence. First, the Commission relied on the figures which the applicant itself supplied in the administrative procedure and arrived at an amount which corresponds broadly to the information supplied by the applicant in its reply to the statement of objections and before the hearing officer. Second, precisely in order to enable the applicant to respond twice in writing to the content of the defence, the Court expressly invited the applicant to respond in writing to the Commission’s rejoinder with respect to the third plea.
In the third place, it should be observed that, during the judicial proceedings, the Court put a number of written questions to the applicant in order to obtain further clarification of the factual context.
In particular, the Court expressly asked the applicant to identify the ‘companies abroad’. However, the applicant refused to specify the companies in question, in spite of the fact that it sought annulment or a variation of the contested decision on the basis of an argument that could not be interpreted without those companies being identified. Nor did the applicant explain the relationship between the ‘companies abroad’ and ESP International, H&R Ölwerke Schindler, H&R Sales and itself and it even denied that the companies in question were its own subsidiaries.
It should be added that the reason why the applicant proposes, in the alternative, at paragraph 51 of the reply, that H&R Sales’ turnover should be added to the amount of EUR 26.3 million in the first column on page 2 of its letter if 23 April 2008 is not clear. In that letter, the applicant stated that the turnover of H&R Ölwerke Schindler was that of H&R Sales, observing that ‘the “own distribution” by OWS — H&R Sales GmbH — is not, as we understand it, covered by the request for information’. However, in its letter of 8 December 2005 the applicant stated that H&R Ölwerke Schindler was a wholly-owned subsidiary of ESP International. It is therefore impossible to understand why the applicant proposes, in the alternative, that the turnover of a subsidiary of ESP International should be added to the amount of EUR 26.3 million, if it objects as a matter of principle to the turnover of the ‘companies abroad’ — which it assimilates in the reply to ESP International — being added to that amount.
Having regard to all of the foregoing considerations, in particular those set out at paragraphs 276 and 277 above, the Commission cannot be criticised for having erred, in the contested decision, when determining the value of sales for 2004. Thus, the applicant’s present complaint must be rejected in so far as it seeks the annulment in part of the contested decision.
In addition, the applicant’s claims must also be rejected in so far as they seek a variation of the amount of fine by the Court in the exercise of its unlimited jurisdiction. Following the detailed examination of the file submitted to it in the context of the present case, the Court considers, first, that the applicant’s arguments and the information communicated by it do not justify such a variation and, second, that the material in the file, particularly the items referred to at paragraphs 276 and 277 above, support the finding that the value of sales taken into account by the Commission for 2004 adequately reflects the gravity of the infringement committed by the applicant.
It follows that the present complaint must be rejected as, accordingly, must the third plea in its entirety.
Fourth plea, alleging infringements of Article 23(3) of Regulation No 1/2003 owing to the errors of assessment affecting the calculation of the amount of the fine
The fourth plea, put forward in the alternative, alleges infringements of Article 23(3) of Regulation No 1/2003 owing to errors of assessment affecting the calculation of the amount of the fine. It is divided into three parts. First, the applicant disputes the applicability of the 2006 Guidelines. Second, it maintains that the rate of 17% of the value of sales, fixed under both section 21 and section 25 of the 2006 Guidelines, is vitiated by an error of assessment and breaches the principle of proportionality. Third, it maintains that the amount of the fine imposed on it is disproportionate and discriminatory, having regard to its size. It asks the Court, in essence, to vary the contested decision and to reduce the amount of the fine imposed on it.
Application of the 2006 Guidelines
The applicant claims that the calculation of the amount of the fine is unlawful on the ground that the Commission relied on the 2006 Guidelines rather than on the Guidelines in their 1998 version (Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (
OJ 1998 C 9, p. 3
)), which led to a considerably higher fine, owing in particular to the introduction of a multiplier corresponding to the number of years of participation in the infringement. The applicant maintains that the principle prohibiting retroactivity in criminal law is breached, since at the time when the infringement was committed the 2006 Guidelines were not yet in force. Likewise, it claims that the Commission has breached the principle of self-limitation of its power by adopting guidelines and the legitimate expectation that economic operators derive from those guidelines.
In that regard, the Court of Justice has already held that the fact that the Commission, in the past, had imposed fines of a certain level for certain types of infringement does not mean that it is precluded from raising that level within the limits indicated in Regulation No 1/2003 if that was necessary to ensure the implementation of European Union competition policy, but that, on the contrary, the proper application of the European Union competition rules required that the Commission might at any time adjust the level of fines to the needs of that policy (
Musique Diffusion française and Others
v
Commission
, paragraph 73 above, paragraph 109;
Aristrain
v
Commission
, paragraph 242 above, paragraph 81; and
Dansk Rørindustri and Others
v
Commission
, paragraph 40 above, paragraph 169).
The supervisory task conferred on the Commission by Article 81 EC and Article 82 EC not only includes the duty to investigate and punish individual infringements but also encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles (
Musique Diffusion française and Others
v
Commission
, paragraph 73 above, paragraph 105, and
Dansk Rørindustri and Others
v
Commission
, paragraph 40 above, paragraph 170).
However, operators cannot have a legitimate expectation that an existing situation which is capable of being altered by the Commission in the exercise of its discretionary power under Articles 81 EC and 82 EC and, in general, in defining competition policy will be maintained (see
Dansk Rørindustri and Others
v
Commission
, paragraph 40 above, paragraphs 171 and 172 and the case-law cited).
More particularly, undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation in the fact that the Commission will not exceed the level of fines previously imposed or in a method of calculating the fines (
Dansk Rørindustri and Others
v
Commission
, paragraph 40 above, paragraph 228).
Consequently, the undertakings in question must take account of the possibility that the Commission may decide at any time to raise the level of the fines by reference to that applied in the past. That is true not only where the Commission raises the level of the amount of fines in imposing fines in individual decisions but also if that increase takes effect by the application, in particular cases, of rules of conduct of general application, such as the Guidelines (
Dansk Rørindustri and Others
v
Commission
, paragraph 40 above, paragraphs 229 and 230).
Consequently, the replacement of the 1998 Guidelines by a new method of calculating the amount of fines, contained in the 2006 Guidelines, on the assumption that this new method had the effect of increasing the level of the amount of the fines imposed, was reasonably foreseeable by the participants in the cartel, having regard to the time when that cartel was implemented. Accordingly, in applying the 2006 Guidelines in the contested decision to infringements committed before they were adopted, the Commission did not breach either the principle of non-retroactivity or the principle of protection of legitimate expectations (see, to that effect,
Dansk Rørindustri and Others
v
Commission
, paragraph 40 above, paragraphs 231 and 232).
Last, it should be observed that the applicant’s interpretation of the principle that the Commission placed a limit on its discretion by adopting guidelines is contrary to that case-law. If the Commission were under an obligation to apply the Guidelines in force at the time during which the infringement was committed, extending over 13 years in the present case, such a constraint would render otiose the Commission’s right, recognised by the case-law cited at paragraph 294 above, to adapt the method of calculating the amount of the fine in order to satisfy its obligation to apply the European Union competition rules effectively.
That analysis cannot be undermined by the arguments which the applicant derives from Case
T-119/02
Royal Philips Electronics
v
Commission
[2003] ECR II-1433
. The applicant infers from paragraph 242 of that judgment that, ‘[a]s the Guidelines are addressed to legal players and create an expectation attributable to the Commission, they assume the function of a guarantee’. However, the passage from the judgment in question to which the applicant refers does not mention either legitimate expectations or the function of a guarantee, since it merely states that the Commission Notice on remedies acceptable under Council Regulation (EEC) No 4064/89 and under Commission Regulation (EC) No 447/98 (
OJ 2001 C 68, p. 3
) ‘is not devoid of any binding legal obligation’ and that ‘[t]he Commission is bound by notices which it issues in the area of supervision of concentrations, provided that they do not depart from the rules in the Treaty and from Regulation No 4064/89’.
In any event, it should be emphasised that, in relation to concentrations, the parties may offer commitments in order to render the concentration compatible with the internal market and, consequently, enable the Commission to authorise the concentration. Therefore, the role of the notice referred to at paragraph 301 above is to guide undertakings, acting in good faith and not having committed any infringement, as to the nature of the commitments to offer in order to obtain a positive outcome at the close of the administrative procedure conducted by the Commission. Thus, the situation of those undertakings cannot be assimilated to that of undertakings which have participated in a cartel expressly prohibited by Article 81 EC.
Likewise, it should be emphasised that the objective of the Guidelines on the method of setting fines is to ensure the transparency and the objective and non-discriminatory nature of the financial penalties imposed in Commission decisions, but without reducing the deterrent nature of its action.
Unlike in criminal law, in the sphere of competition law both the benefits derived from and the penalties imposed in respect of the unlawful activities are purely financial, just like the motivation of the parties to the infringement, who, moreover, follow an economic logic in their actions. Accordingly, the more or less precise predictability of the amount of the fine which will be imposed for participation in an unlawful cartel would have highly detrimental consequences for the effectiveness of European Union competition policy, in so far as undertakings committing infringements could directly compare the costs and benefits of their unlawful activities and also takes into account the chances of discovery and thus attempt to ensure that those activities would be profitable (see, to that effect,
Degussa
v
Commission
, paragraph 220 above, paragraph 83, and
Schunk and Schunk Kohlenstoff-Technik
v
Commission
, paragraph 220 above, paragraph 45).
In the light of the foregoing, the present complaint must be rejected.
Breach of the principle of proportionality and the error of assessment owing to the fixing of a multiplier of 17% both for the gravity of the infringement and also for deterrence
In the contested decision, after defining the geographic scope of the infringement at recital 651, the Commission, under the heading ‘Conclusions on Gravity’, devoted recital 653 to the question of the gravity of the infringement:
‘…
(651)
As regards the geographic scope, the infringement covered the entire EEA as the undertakings involved sold [paraffin waxes] in all countries of the EEA. …
(653)
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, the percentage [of the value of sales] to be applied for the additional amount for ENI and H&R/Tudapetrol should be 17%. It has been established that for ExxonMobil, MOL, Repsol, RWE, Sasol, Shell and Total, the single and continuous infringement also consisted of customer and/or market allocation. Market and customer allocation are by their very nature also among the most harmful restrictions of competition as these practices lead to the reduction or elimination of competition in certain markets or for certain customers … In view of this additional gravity, the percentage [of the value of sales] to be applied for the additional amount for ExxonMobil, MOL, Repsol, RWE, Sasol, Shell and Total should be 18%.’
The applicant claims that the Commission breached the principle of proportionality and made an error of assessment in taking, as regards the main aspect of the infringement, a multiplier of 17%, both for the gravity of the infringement, pursuant to section 21 of the 2006 Guidelines, and for deterrence, pursuant of section 25 of those Guidelines. The coefficient taken into account for the undertakings that also participated in the aspect of the infringement relating to market sharing and customer allocation is only 18%. The difference between the percentages in question, only one point, does not proportionately reflect the difference in gravity. The applicant therefore asks the Court, in essence, to increase the gap between the multipliers of 17 and 18% by reducing the former, that is to say, the multiplier applied to the value of sales by the undertakings who, like the applicant, participated only in the main aspect of the infringement.
According to the case-law, it follows from Article 49(3) of the Charter of Fundamental Rights of the European Union that the intensity of penalties must not be disproportionate to the infringement in question and that, pursuant to Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine, regard is to be had both to the gravity and to the duration of the infringement. The principle of proportionality and the principle that the penalty must be appropriate to the offence also require that the amount of the fine imposed must be proportionate to the gravity and the duration of the infringement (see, to that effect, Joined Cases
T-202/98, T-204/98 and T-207/98
Tate & Lyle and Others
v
Commission
[2001] ECR II-2035
, paragraph 106, and Case
T-43/02
Jungbunzlauer
v
Commission
[2006] ECR II-3435
, paragraph 226).
In particular, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account to assess the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (
Jungbunzlauer
v
Commission
, paragraph 308 above, paragraphs 226 to 228, and Case
T-446/05
Amann & Söhne and Cousin Filterie
v
Commission
[2010] ECR II-1255
, paragraph 171).
In addition, when determining the amount of the fine, according to the case-law, objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements. In the interests of transparency, the Commission adopted the 2006 Guidelines, in which it indicates the basis on which it will take account of one or other aspect of the infringement and what this will imply as regards the amount of the fine (see, to that effect, Case
C-386/10 P
Chalkor
v
Commission
[2011] ECR I-13090
, paragraphs 57 to 59).
It should be emphasised that the method of calculating the amount of the fines and the role of the various elements taken into account, as provided for in the 2006 Guidelines, are not disputed by the applicant in the context of the present complaint.
In the first place, as regards the present case, it should be observed that, as stated at section 23 of the 2006 Guidelines, price-fixing agreements and concerted practices, forming as in the present case part of the main aspect of the infringement, are, by their very nature, among the most serious infringements of the competition rules. Accordingly, according to sections 21 and 23 of those Guidelines, the multiplier to reflect the gravity of the infringement must be set at the higher end of the scale of 0 to 30%. Furthermore, in the present case, the agreements and concerted practices aimed at price fixing concerned all countries of the EEA, which is also relevant, according to section 22 of the 2006 Guidelines (recitals 651 and 653 to the contested decision).
In the light of those factors, the Commission did not make an error of assessment in taking into account a multiplier of 17% to reflect the gravity of the infringement with respect to the main aspect of the infringement, consisting in ‘agreements or concerted practices relating to price-fixing and the exchange and disclosure of sensitive business information’ relating to paraffin waxes. The same applies as regards the establishment of the amount to be added for deterrence according to section 25 of the 2006 Guidelines, known as the ‘entry fee’. In addition, the Commission identified the links between the relevant factors taken into account to reflect the gravity of the infringement and the multiplier applied.
It should be added that the setting of the multiplier in question at 17% is also justified in the light of the assessment criteria identified in the case-law cited at paragraph 307 above.
It follows that the Commission did not make an error of assessment or breach the principle of proportionality in setting the rate in question at 17%.
In the second place, it is appropriate to examine the applicant’s argument that the difference between the multiplier applied for the main aspect of the infringement and that applied for the first and second aspects together, amounting to one percentage point, does not reflect the difference in gravity associated with the taking into account of participation in customer allocation and market sharing.
In that regard, it should be pointed out that, as is apparent from recitals 240 and 248 to the contested decision, the agreements consisting in market sharing or customer allocation were sporadic during the technical meetings by comparison with the agreements or concerted practices aimed at fixing the prices of paraffin waxes. Furthermore, according to the independent statements of undertakings which had also participated in the cartel (see paragraph 153 above), a discussion of the levels of prices applied by the participants was always part of the technical meetings, as those meetings generally concerned price fixing.
In addition, according to recital 267 to the contested decision, the unlawful objective pursued by the participants in the single and continuous infringement in the present case, which led to the imposition of penalties, consisted in reducing or eliminating competitive pressure with the ultimate goal of achieving higher profits and, ultimately, of stabilising or even increasing those profits. Admittedly, the second aspect of the infringement could increase the harmful effects of the infringement vis-à-vis customers and the relevant markets. However, it did not pursue an anti-competitive objective that could have been clearly separated from the objective of the main aspect of the infringement, since the same products and the same geographic market were concerned and since, in the final analysis, market sharing and customer allocation also served the aim consisting in achieving supracompetitive price levels, like the practices aimed at price fixing.
Accordingly, the Commission did not make an error of assessment or breach the principle of proportionality in applying, to reflect the gravity of the infringement, on the one hand, and deterrence in accordance with section 25 of the 2006 Guidelines, on the other, a proportion of 17% of the value of sales with respect to the undertakings participating only in the main aspect of the infringement and 18% of the value of sales with respect to the undertakings also participating in the second aspect of the infringement.
Moreover, in so far as the Court is also asked, in the alternative, to reduce the amount of the fine, it considers, in the exercise of its unlimited jurisdiction, that a proportion of 17% of the value of sales by the undertakings participating only in the main aspect of the infringement adequately reflects the gravity of the infringement, as required by Article 23(3) of Regulation No 1/2003 and by the case-law cited at paragraph 308 above.
Consequently, the present complaint must be rejected.
The alleged disproportionate and discriminatory nature of the basic amount in the light of the size of the H&R group
The applicant maintains that the fine imposed on it is disproportionate and discriminatory by reference to its size, by comparison with the fines imposed on the other undertakings participating in the cartel. It relies on the fact that the adjusted basic amount applied to ExxonMobil represents only around 0.04% of the total turnover achieved by that group in 2007, whereas in the case of the H&R group that rate is 2.5%.
According to the case-law, the principle of equal treatment is breached only where comparable situations are treated differently or different situations are treated in the same way, unless such difference in treatment is objectively justified (Case
106/83
Sermide
[1984] ECR 4209
, paragraph 28, and Case
T-304/02
Hoek Loos
v
Commission
[2006] ECR II-1887
, paragraph 96).
Furthermore, according to the case-law cited at paragraph 308 above, it follows from Article 49(3) of the Charter of Fundamental Rights that the intensity of penalties must not be disproportionate to the infringement in question and that, pursuant to Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine, regard is to be had both to the gravity and to the duration of the infringement. The principle of proportionality and the principle that the penalty must be appropriate to the offence also require that the amount of the fine imposed must be proportionate to the gravity and the duration of the infringement.
In particular, according to the case-law cited at paragraph 309 above, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purpose of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified.
Furthermore, according to the case-law, it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which therefore gives an indication of the scale of the infringement. It is important not to confer on one or the other of those figures an importance disproportionate in relation to the other factors and, consequently, the fixing of an appropriate fine cannot be the result of a simple calculation based on the total turnover. That is particularly so where the goods concerned account for only a small part of that figure (
Dansk Rørindustri and Others
v
Commission
, paragraph 40 above, paragraph 243, and Case
C-397/03 P
Archer Daniels Midland and Archer Daniels Midland Ingredients
v
Commission
[2006] ECR I-4429
, point 100).
Conversely, EU law contains no general principle that the penalty must be proportionate to the total turnover of the undertaking participating in the infringement (see, by analogy,
Archer Daniels Midland and Archer Daniels Midland Ingredients
v
Commission
, paragraph 326 above, paragraph 101).
It should also be borne in mind that, according to the case-law cited at paragraph 310 above, in the interests of transparency, the Commission adopted the 2006 Guidelines, in which it indicates the basis on which it will take account of each of the relevant factors for the determination of the amount of the fine, including the total turnover of the undertaking concerned and the value of sales on the market affected by the cartel.
It should be emphasised, moreover, that the calculation method provided for in the 2006 Guidelines and the role of the various factors taken into account are not disputed by the applicant in the context of the present complaint.
In the present case, 17% of the value of sales by the H&R group and 18% of the value of sales by ExxonMobil, respectively, on the markets affected by the cartel were taken into account in calculating the basic amount of the fine. In addition, the Commission fixed a multiplier of 2 owing to ExxonMobil’s high total turnover and the small percentage of the value of its sales on the markets affected by the cartel by comparison with that turnover, in order to ensure an appropriate deterrent effect, according to section 30 of the 2006 Guidelines. Furthermore, for each of the undertakings participating in the cartel, the Commission ascertained that the total amount of the fine did not exceed 10% of its turnover, as required by Article 23(2) of Regulation No 1/2003.
It follows that, at several stages in the calculation of the amount of the fine, the Commission took into account the differences between the situation of ExxonMobil and that of the applicant, treating them differently as regards those aspects.
Likewise, the Commission complied with its own Guidelines and the applicable case-law, according to which it is permissible to have regard both to the total turnover of the undertaking and to the proportion of the value of sales accounted for by the goods in respect of which the infringement was committed. In the contested decision, the Commission applied the relevant factors consistently and in an objectively justified manner.
Last, it should be added that the difference in rates between the basic amount and the total turnover of the group, so far as ExxonMobil and H&R are concerned, is solely the consequence of the fact that the revenues accounted for by the goods belonging to the markets affected by the cartel represent an incomparably lower percentage of ExxonMobil’s turnover than in the case of H&R. The applicant cannot validly maintain that the amount of the fine is disproportionate or discriminatory by arbitrarily choosing a figure to be taken into account in calculating the amount of the fine and an intermediate value of that calculation that are not directly related with each other, either according to the 2006 Guidelines or according to the case-law.
Accordingly, the present complaint, alleging breach of the principle of equal treatment and that the amount of the fine imposed on the applicant is disproportionate, must be rejected.
Moreover, in so far as it was also asked, in the alternative, to reduce the amount of the fine imposed on the applicant, the Court considers, in the exercise of its unlimited jurisdiction, that the amount of the fine imposed on the applicant is appropriate, in the light of the gravity and the duration of the infringement committed.
The fourth plea must therefore be dismissed in its entirety.
The complaint raised by the applicant at the hearing, concerning the economic unit formed by it and the other companies in the H&R group
At the hearing, the applicant submitted that the Commission had not established that it and H&R Wax Company Vertrieb formed an economic unit. It claimed that the contested decision lacks an adequate statement of reasons in that regard. In addition, the applicant claimed that the Court itself had not defined the H&R group in its written and oral questions.
First of all, it should be observed that the Commission clearly defined, at paragraphs 26 and 28 of the statement of objections, the outline of the H&R group, corresponding to the undertaking H&R. As the applicant did not dispute that definition, it was reiterated at recitals 22 and 24 to the contested decision (see paragraph 13 above). In the application and the reply, the applicant did not criticise that definition of the H&R group. Furthermore, at paragraph 14 of the application, it stated that it was ‘part of the economic unit [Hansen & Rosenthal]’ and it built its argument relating to the first plea in that sense. Hansen & Rosenthal is the ultimate parent company of H&R, according to recital 24 to the contested decision.
In the first place, it should be borne in mind that it follows from Article 44(1)(c) in conjunction with Article 48(2) of the Rules of Procedure that the original application must contain the subject-matter of the proceedings and a summary of the pleas in law relied on, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure.
Accordingly, the new complaint raised by the applicant and based on the validity of the finding that it and Hansen & Rosenthal form an economic unit, which was submitted at the hearing, is inadmissible.
In the second place, it should be borne in mind that the obligation to state reasons provided for in Article 253 EC is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. An infringement of Article 253 EC, which relates to absence of reasons or inadequacy of the reasons stated, constitutes a breach of essential procedural requirements within the meaning of Article 230 EC and, involving a matter of public policy, must be raised by the Courts of the European Union (see the case-law cited at paragraph 42 above).
It should be borne in mind that, according to the case-law, the statement of reasons on which an individual decision is based 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 Community court to exercise its power of review. The requirement to state reasons must be assessed by reference to the circumstances of the case. The reasoning is not required to go into all the relevant facts and points of law, since the question whether it meets the requirements of Article 253 EC must be assessed by reference not only to the wording of the act in question but also to the context in which the act was adopted (
Commission
v
Sytraval and Brink’s France
, paragraph 42 above, paragraph 63).
In the present case, the Court considers that the reasons why the Commission included the applicant in the H&R group are clear from recitals 22 and 24 to the contested decision. In addition, it should be observed that in the present case liability for the infringement was not imputed to the applicant because another company in the H&R group had participated in the cartel in question; the applicant had directly participated in the cartel owing to the presence of one of its employees at the technical meetings.
As regards the calculation of the value of sales by the H&R group, moreover, it should be emphasised that the Commission took the external turnover of the group into account at the applicant’s express request, as is apparent from the correspondence between the applicant and the Commission during the administrative procedure. According to the information supplied by the applicant, that external turnover also excluded the turnover of Hansen & Rosenthal and that of its subsidiary H&R Wax Company Vertrieb, which hold an indirect shareholding in the applicant’s capital, and which were included in the H&R group without such inclusion being disputed by the applicant in its reply to the statement of objections and in its written submissions before the Court.
The Court is therefore perfectly capable of understanding the reasons for the Commission’s actions on the basis of the wording of the contested decision and the context in which it was adopted, and thus finds it unnecessary to raise of its own motion a breach of the obligation to state reasons.
In the third place, as regards the alleged failure to define the H&R group in the proceedings before the Court, it should be borne in mind that the contested decision defines that term at recitals 22 and 24 and that the applicant itself uses the expression ‘H&R group’, notably at paragraph 68 of the application, in the same sense. As the applicant did not dispute that definition of the H&R group, and as the term ‘H&R group’ was consistently used by the parties during the written procedure, the Court used the same definition in its Report for the Hearing. In addition, while it is true that the applicant often uses ‘H&R’ in a sense that corresponds to ‘Hansen & Rosenthal KG’, the fact remains that the Court defined ‘H&R’ in the Report for the Hearing in the same way as that set out at paragraph 2 above.
The complaint raised at the hearing must therefore also be rejected.
In the light of the foregoing, the action, in so far as it seeks annulment of the contested decision, must be rejected.
As regards the exercise of its unlimited jurisdiction, the Court finds that the applicant has demonstrated no error or irregularity in the contested decision that would justify a reduction of the amount of the fine. It also considers that, having regard to all the circumstances of the case, in particular the gravity and duration of the infringement committed by the applicant, the amount of the fine imposed on the applicant is appropriate.
In the light of all of the above considerations, the Commission’s action must be dismissed.
Costs
Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs of these proceedings, in accordance with the form of order sought by the Commission.
Under Article 90(1)(a) of the Rules of Procedure, moreover, where the Court has incurred avoidable costs, it may order the party that caused them to refund them. In the present case, as was observed, in particular at paragraph 262 above, the applicant provided inaccurate and imprecise answers to the written questions put by the Court. The applicant’s conduct rendered the examination of the present case more complex, which made the Court’s task unnecessarily onerous, by obliging it to carry out avoidable tasks. The applicant must therefore be ordered to refund EUR 10 000 to the cashier of the General Court.

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

1.
Dismisses the action;

2.
Orders H&R ChemPharm GmbH to bear its own costs and to pay those incurred by the European Commission;

3.
Orders H&R ChemPharm to refund to the Court the sum of EUR 10 000 pursuant to Article 90(a) of its Rules of Procedure.

Czúcz
Labucka
Gratsias
Delivered in open court in Luxembourg on 12 December 2014.
Table of contents

Facts giving rise to the dispute

1. Administrative procedure and adoption of the contested decision

2. Links between the H&R group and Tudapetrol

Procedure and forms of order sought

Law

1. The request that a document be removed from the file

2. Substance

First plea, alleging infringement of Articles 81 EC and 253 EC and breach of the rights of the defence, owing to what is alleged to be the failure to draw the necessary distinction in the reasoning in the contested decision

First part: infringement of Articles 81 EC and 253 EC

Second part, alleging breach of the rights of the defence

Second plea, alleging infringement of Article 81 EC owing to the absence of proof of an infringement committed by the applicant

First part, concerning the absence of evidence establishing that the applicant was directly liable

– The concepts of agreement and concerted practice

– The principles of the assessment of evidence

– The contested decision

– The imputability to H&R ChemPharm of Mr G.’s presence at the technical meetings

– The applicant’s offer to adduce evidence

– Global assessment of the evidence supporting the existence of an infringement committed by the applicant

– The starting date of the applicant’s participation in the infringement

– The applicant’s arguments concerning certain particular technical meetings

Second part of the second plea

Third plea, alleging an error of calculation in the determination of the value of sales

Preliminary observations

The turnover taken into account for 2002 and 2003

The calculation of the turnover for 2004 and the taking into account of the ‘companies abroad’ and of H&R ESP International

– The inclusion in the calculation of the value of sales of sales by ‘companies abroad’ and by H&R Sales, acquired in 2004

– The increase in the average value of sales during the reference period owing to the taking into account of the turnover of the companies acquired in 2004

– The alleged double counting of the turnover of the ‘companies abroad’

Fourth plea, alleging infringements of Article 23(3) of Regulation No 1/2003 owing to the errors of assessment affecting the calculation of the amount of the fine

Application of the 2006 Guidelines

Breach of the principle of proportionality and the error of assessment owing to the fixing of a multiplier of 17% both for the gravity of the infringement and also for deterrence

The alleged disproportionate and discriminatory nature of the basic amount in the light of the size of the H&R group

The complaint raised by the applicant at the hearing, concerning the economic unit formed by it and the other companies in the H&R group

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