CELEX: 62008TJ0566
Competition
Agreements, decisions and concerted practices
Market for paraffin waxes
Market for slack wax
Decision finding an infringement of Article 81 EC
Price-fixing and market-sharing
Proof of the existence of the cartel
Concept of single and continuous infringement
Duration of the infringement
Interruption of the infringement
2006 Guidelines on the method of setting fines
Equal treatment
Presumption of innocence
Imputability of the unlawful conduct
Liability of a parent company for the infringements of the competition rules committed by its subsidiaries
Decisive influence exercised by the parent company
Presumption in the case of 100% shareholding
Proportionality
Rounding-up method
Unlimited jurisdiction

Facts giving rise to the dispute
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, Total Raffinage Marketing SA (formerly Total France SA), and its parent company, owning 100% of its capital, Total SA, 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 candle wax market in the EEA and on the German market for slack wax.
The addressees of the contested decision are, in addition to the applicant and its parent company Total SA (together ‘the Total group’ or ‘Total’), 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 GmbH, H&R Wax Company Vertrieb GmbH and Hansen & Rosenthal KG (together ‘H&R’), Tudapetrol Mineralölerzeugnisse Nils Hansen KG, 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’) and RWE Dea AG and RWE AG (together ‘RWE’) (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], 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).
On 29 May 2007, the Commission sent a statement of objections to the companies referred to at paragraph 2 above, including Total France (recital 85 to the contested decision). By letter of 14 August 2007, Total France replied to the statement of objections.
On 10 and 11 December 2007, the Commission held a hearing in which Total France took part (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 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 infringements relating to paraffin waxes also concerned customer-sharing or market-sharing (‘the second aspect of the infringement’). Furthermore, the infringement committed by RWE (subsequently Shell), 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.
According to the contested decision, employees of Total France had participated directly in the infringement throughout its entire duration. The Commission therefore held Total France liable for its participation in the cartel (recitals 555 and 556 to the contested decision). In addition, Total France was, between 1990 and the end of the infringement, directly or indirectly owned as to more than 98% by Total SA. The Commission considered that it could be presumed on that basis that Total SA exercised decisive influence over the conduct of Total France, as the two companies were part of the same undertaking (recitals 557 to 559 to the contested decision). In answer to an oral question at the hearing concerning the imputation of liability to its parent company, the applicant referred to all the information communicated by Total SA in the related Case T‑548/08
Total SA
v
Commission
, delivered today. In that case, Total SA stated, in answer to a written question from the Court, that Total France was directly or indirectly wholly owned by it during the relevant period.
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.
In the applicant’s case, first of all, the Commission took into account the value of annual sales on the relevant markets. That represented EUR 31 133 865 (including EUR 1 993 620 for slack wax).
Next, with respect to the gravity of the infringement, the Commission took into account 18% of the annual value of sales of paraffin waxes and 15% of the annual value of sales for slack wax. The amounts thus obtained were multiplied, in order to take into account the duration of the infringement, by a factor of 13 for paraffin waxes and 7 for slack wax. Likewise, in application of point 25 of the 2006 Guidelines, the Commission included in the basic amount an additional amount (‘the entry fee’) representing 18% of the value of annual sales of paraffin waxes and 15% of the annual value of sales of slack wax. The Commission thus arrived at a basic amount of the fine of EUR 75 390 000 for Total (recital 671 to the contested decision).
The Commission did not find any aggravating circumstance or mitigating circumstance in the applicant’s case and the basic amount of the fine was therefore not adjusted on that basis. However, for deterrence, in the light of the significant worldwide turnover of the Total group, in application of point 30 of the 2006 Guidelines, the Commission fixed a coefficient of 1.7. Thus, by multiplying the basic amount by that coefficient, the Commission arrived at an adjusted basic amount of the fine of EUR 128 163 000.
As no reduction of the amount of the fine was made under the Commission notice on immunity from and the reduction of fines in cartel cases (
OJ 2002 C 45, p. 3
), the adjusted basic amount of EUR 128 163 000 was the total amount of the fine (recital 785 to the contested decision).
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:
…
Total France SA: from 3 September 1992 to 28 April 2005; and
Total SA: from 3 September 1992 to 28 April 2005.
For the following undertakings, the infringement also includes slack wax sold to end-customers on the German market for the periods indicated:
Total France SA: from 30 October 1997 to 12 May 2004;
Total SA: from 30 October 1997 to 12 May 2004.
…
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 Petroleo 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 Limited 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.’
Procedure and forms of order sought
By application lodged at the Court Registry on 17 December 2008, the applicant brought the present action.
The applicant claims that the Court should:
—
annul Articles 1 and 2 of the contested decision in so far as they concern the applicant;
—
substantially reduce the amount of the fine imposed on the applicant in Article 2 of the contested decision;
—
order the Commission to pay the costs.
The Commission contends that the Court should:
—
dismiss the action;
—
order the applicant to pay the costs.
Law
In support of its claims for annulment in part of the contested decision and a reduction of the amount of the fine imposed on it, the applicant puts forward 11 pleas in law.
The first plea alleges infringement of Article 81 EC and breach of the obligation to state reasons as regards the assessment relating to the slack wax aspect of the infringement. The second plea alleges infringement of Article 81 EC and breach of the obligation to state reasons as regards the implementation of the practices relating to paraffin waxes. The third plea alleges infringement of Article 81 EC and breach of the principles of presumption of innocence, legal certainty and equal treatment as regards the applicant’s participation in the infringement after 12 May 2004. The fourth plea alleges infringement of Article 81 EC and breach of the principle of presumption of innocence as regards the Commission’s failure to take into account the interruption of the applicant’s participation in the practices in question. The fifth plea alleges breach of the obligation to state reasons and of the 2006 Guidelines resulting from failure to take into account the fact that the cartel was not implemented. The sixth plea alleges breach of the obligation to state reasons and of the 2006 Guidelines in the determination of the reference period serving for the calculation of the basic amount of the fine. The seventh plea alleges breach of the 2006 Guidelines and of the principle of proportionality as regards the determination of the percentage of the value of sales of slack wax to be taken into account. The eighth plea alleges infringement of Regulation No 1/2003 and breach of the principles of proportionality, equal treatment and presumption of innocence as regards the calculation method established by the 2006 Guidelines. The ninth plea alleges breach of the 2006 Guidelines, the principle that penalties must be specific to the offender and the principle of proportionality as regards the determination of the additional amount of the fine for deterrence. The tenth plea alleges breach of the principle of proportionality in setting the amount of the fine. The eleventh plea alleges infringement of Article 81 EC as regards the imputation of the anti-competitive conduct of Total France to its parent company, Total SA. In addition, at the hearing the applicant raised a twelfth plea, alleging breach of its rights of defence in that the turnover of other companies belonging to the Total group were included in the value of sales used in setting the amount of the fine.
The Court considers it appropriate to begin by examining the second plea.
1.
Second plea, alleging infringement of Article 81 EC and breach of the obligation to state reasons as regards the practices relating to paraffin waxes
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. As regards paraffin waxes, that infringement consisted in ‘agreements and/or concerted practices aimed at price fixing and exchanging and disclosing commercially sensitive information’ (main aspect of the infringement) and of ‘customer and/or market allocation’ (second aspect of the infringement).
The applicant claims that the Commission’s assessment of the evidence relating to the first two aspects of the infringement, relating to paraffin waxes, is incorrect. It thus maintains that the Commission infringed Article 81 EC and breached its obligation to state reasons.
By the first part of the present plea, the applicant claims that, of the conduct coming within the main aspect of the infringement, only the exchange of information relating to the state of the market for paraffin waxes, sales volumes and price levels charged could be established, while the agreements and concerted practices concerning the fixing of prices of paraffin waxes could not be validly found in respect of the applicant on the basis of the evidence in the file.
In the second part, the applicant submits that the Commission unlawfully disregarded the absence of proof of the implementation of the price-fixing agreements.
By the third part, the applicant takes issue with the Commission on the ground that the evidence in the file does not show that the applicant participated in the second aspect of the infringement, that is to say, geographic market and customer allocation at the technical meetings relating to paraffin waxes.
By the fourth part, the applicant observes that the economic analysis of sales prices which it supplied contradict its alleged adherence to a price-fixing agreement.
Preliminary observations
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 (see, to that effect,
HFB and Others
v
Commission
, paragraph 31 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 (see, to that effect,
Commission
v
Anic Partecipazioni
, paragraph 33 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, and 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 of the question 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 this 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 35 above, paragraph 60).
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 European Union 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 (see, to that effect,
Dresdner Bank and Others
v
Commission
, paragraph 35 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 in relation to 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 35 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 Union law is the unfettered evaluation of evidence (Case
T-50/00
Dalmine
v
Commission
[2004] ECR II-2395
, paragraph 72).
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 42 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, T-31/95, T-32/95, T-34/95, T-35/95, T-36/95, T-37/95, T-38/95, T-39/95, T-42/95, T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95, T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T-57/95, T-58/95, T-59/95, T-60/95, T-61/95, T-62/95, T-63/95, T-64/95, T-65/95, T-68/95, T-69/95, T-70/95, 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).
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 the Commission in concluding that the European Union competition rules had been infringed (see, to that effect,
JFE Engineering and Others
v
Commission
, paragraph 41 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 41 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 and the penalties which offenders may incur are well known, it is normal for the activities which those practices and those agreements entail to take place in a clandestine fashion, for meetings to be held in secret and for the associated documentation to be reduced to a minimum. The Commission cannot therefore be required to produce documents explicitly showing contacts between the operators concerned. Even if it discovers such documents, they will normally be only fragmentary and incomplete, so that it is frequently necessary to reconstitute certain details by inference. 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 (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
, paragraphs 55 to 57; see also
Dresdner Bank and Others
v
Commission
, paragraph 35 above, paragraphs 64 and 65 and the case‑law cited).
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 (see, 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).
The case‑law cited is applicable, by analogy, to Article 53 of the EEA Agreement.
First part, concerning the allege absence of proof allowing the agreements or concerted practices aimed at fixing the prices of paraffin waxes to be established
In the context of this part, the applicant disputes the principles applied by the Commission when assessing the evidence and calls into question the assessment of the evidence in respect of the technical meetings for which an agreement or concerted practice aimed at fixing the prices of paraffin waxes was established by the Commission.
The description of the main aspect of the infringement in the contested decision
In section 4.1 of the contested decision, under the heading ‘The Basic Principles and Functioning of the Cartel’, the Commission described the terms of the price-fixing practices as follows:
‘…
(106)
The Technical Meetings 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 Technical Meetings. 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 Technical Meetings 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 Technical Meetings 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 Technical Meetings informed each other of the steps they took to implement the results of the Technical Meetings. 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 Technical Meetings. 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.’
In section 4.2 of the contested decision, under the heading ‘Details on the Technical Meetings’, the Commission first of all presented a table setting out the places and dates of the Technical Meetings and also 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).
In section 5.3 of the contested decision, under the heading ‘The Nature of the Infringement in the Present Case’, the Commission set out the principles governing the characterisation of the anti-competitive conduct that were applicable in the present case:
‘…
(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 and 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, in the same section of the contested decision, the Commission described 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 (1), 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.’
As regards the applicant, it is apparent from the annex to the contested decision that it was present at 39 Technical Meetings and ‘slack wax meetings’ out of a total of 51 meetings during the period of its participation in the cartel, that is to say, between 3 September 1992 and 28 April 2005.
The probative value of the evidence gathered by the Commission
First of all, it is appropriate to examine the evidence relating to the content of the discussions at the Technical Meetings on which the Commission relied in the contested decision. That evidence consists of corporate statements and contemporaneous handwritten notes of the Technical Meetings, made either at a particular Technical Meeting or shortly afterwards, and describing the content of the discussions at the meeting.
In that regard, the applicant calls into question the principles of interpretation of the evidence which the Commission applied in the contested decision and also the probative value of the statements and documentary evidence.
– Corporate statements
It should be observed that, according to Sasol’s statement of 12 May 2005, 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. 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 agreed 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 is apparent from those statements, moreover, that Total was fully involved in those anti-competitive arrangements.
Furthermore, it should be pointed out that the Commission referred to the statements in question (see paragraphs 58 to 61 above) at recitals 107 and 113 to the contested decision.
The applicant claims that statements made in the context of the 2002 Leniency Notice have limited probative value, especially when they are not corroborated by any other evidence. Such statements are by nature subjective and tend to ‘blame the others rather than oneself’. Furthermore, the statements by Sasol and Repsol about the gravity of the infringement were made ‘at the Commission’s incentive’ and in order to maintain the benefit of their leniency applications.
It should be observed that such arguments have already been examined and rejected by the Courts of the Union.
According to the case‑law, no provision or any general principle of Union 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 41 above, paragraph 192).
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 (see, to that effect,
JFE Engineering and Others
v
Commission
, paragraph 41 above, paragraphs 205 to 210).
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, or a reduction 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 (see, 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 declarant must in principle be regarded as particularly reliable evidence (
JFE Engineering and Others
v
Commission
, paragraph 41 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).
In the present case, the statements in question 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 66 above, they are particularly reliable.
Furthermore, the applicant mentions no reference or evidence to substantiate its assertion that the statements by Sasol and Repsol were made ‘at the Commission’s incentive’. Nor does any incentive to exaggerate the gravity of the infringement result from the 2002 Leniency Notice and none can be found in the present case. On the contrary, it must be emphasised that the statements made by Sasol, Repsol and ExxonMobil were made after the inspections, so that those undertakings could suspect that there was little chance that they were the first to have information enabling the Commission to order inspections or to find the existence of a cartel (see point 8 of the 2002 Leniency Notice). Thus, according to their perception, there was a strong chance that they might receive at most a maximum reduction of 50% of the amount of the fine (see point 23 of the 2002 Leniency Notice). In those circumstances, there was no economic reason that might have provided the abovementioned undertakings with an incentive to present the infringement as being more serious than it was in reality, since the increased gravity of the infringement would have had the consequence of increasing the amount of their fines. Last, it should be borne in mind that the submission of false evidence in statements may deprive the undertaking concerned of the benefit of the 2002 Leniency Notice (see paragraph 67 above).
Thus, the applicant’s argument that there was an ‘incentive’ for the undertakings that have applied for leniency to present the infringement as being more serious than it actually was must be rejected.
In addition, the applicant claims that the Commission cannot base its findings on a corporate statement the accuracy of which is disputed by a number of undertakings involved and which is not supported by other evidence.
Admittedly, according to the case‑law, 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 41 above, paragraphs 219 and 220).
In the present case, however, the Commission did not rely on a statement by a single participant which was disputed by the other participants, but on statements made independently by a number of undertakings, which in broad terms are agreed on the description of the infringement (see paragraphs 58 to 61 above). In addition, the Commission relied on numerous pieces of documentary evidence that supplement and corroborate the content of the corporate statements, some of which will be examined at paragraph 76 et seq. below.
Accordingly, the statements in question form part of the body of evidence demonstrating the agreements or concerted practices relating to the fixing of the prices of paraffin waxes decided upon at the technical meetings in which the applicant participated. The arguments whereby the applicant challenges the probative value of those statements must therefore be rejected.
– Documentary evidence
It should be observed that the contested decision contains references to a large number of pieces of contemporaneous documentary evidence found at the premises of the undertakings concerned during the inspections. That documentary evidence consists mainly in handwritten MOL notes and minutes of ‘Blauer Salon’ meetings prepared by Sasol.
The applicant disputes the probative value of those documents. It claims that when the handwritten notes were taken during the technical meetings, as MOL’s were, they are not exhaustive and contain signs or symbols the meaning of which is specific to their author. As regards the minutes of the ‘Blauer Salon’ meetings, their probative value is limited, in so far as they were not drawn up during the technical meetings or by an individual who had participated in them. Furthermore, certain information set out in those minutes had its origins in private conversations outside the framework of the technical meetings. The Commission’s argument that they were drawn up
in tempore non suspecto
cannot be upheld, particularly as their meaning rarely emerges clearly when they are read.
It should be observed that this Court and the Court of Justice have had occasion to examine and reject such arguments.
Thus, as stated in the case‑law cited at paragraph 47 above, as the prohibition on participation in anti-competitive practices and agreements, and also the penalties which those involved in infringements may incur, are well known, those practices and agreements frequently take place in a clandestine fashion, meetings are often held secretly and the relevant documentation is mostly kept to a minimum. Even if the Commission discovers evidence explicitly showing unlawful contacts between operators, it will normally be only fragmentary and incomplete, so that it is frequently necessary to reconstitute certain details by inference.
Furthermore, according to the case‑law, when assessing the probative value of documentary evidence, it is necessary to attach great importance to the fact that those documents were 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 41 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).
In the present case, as the Commission stated at recital 215 to the contested decision, MOL’s notes were drawn up during the meetings by the person who attended them and their content is structured and relatively detailed. The probative value of those notes is therefore very high. As regards the minutes of the ‘Blauer Salon’ meetings drawn up by Sasol, they are documents dating from the time of the facts and drawn up
in tempore non suspecto
, shortly after each technical meeting. Even though the person who drafted them was not present at the technical meetings, she relied on information obtained from a participant. The probative value of those minutes is therefore also high.
Consequently, the arguments whereby the applicant calls into question the probative value of the documentary evidence mentioned in the decision must be rejected.
Detailed examination of the applicant’s arguments relating to the individual technical meetings
The applicant claims that, for 36 out of 52 technical meetings, the Commission does not assert that the participants reached an agreement on prices. First, as regards four technical meetings, the Commission acknowledged in the contested decision that it was not sure that those meetings took place or that the content of the meeting could not be established. Second, for 12 technical meetings, the Commission accepted in the contested decision that it had no information about their content other than the statements of certain participants, according to which the meetings had an anti-competitive object, although the nature of the conduct in question was not precisely identified. Third, as for six other technical meetings, the Commission did not state in the contested decision that they had pertained to discussions on prices. Fourth, as regards 14 other technical meetings, the Commission acknowledged in the contested decision that, although information on prices had been exchanged at those meetings, no agreement on an increase and,
a fortiori
, on a common level of increase had been concluded or that, in any event, it was not sure of the outcome of those exchanges.
The applicant claims, moreover, that there are only 16 technical meetings during which that the Commission found that the applicants had reached agreement on prices. The applicant submits detailed argument on what it alleges to be the incorrect assessment of the evidence with respect to each of those technical meetings.
In the first place, as regards the technical meeting held on 3 and 4 September 1992, the Commission relied, at recital 126 to the contested decision, on a Sasol ‘Blauer Salon’ minute containing the comment ‘until 22/11, price “0”’. It inferred that an agreement not to change prices had been reached at that meeting.
The applicant claims that Sasol’s minute relates to an internal communication between two Sasol employees, Mr K. instructing Mr O. not to change prices, with the consequence that that minute does not show that an agreement was reached at the technical meeting.
It must be stated that Sasol understood that reference as establishing an agreement not to change prices in a statement made in the context of the administrative procedure. Furthermore, it follows from numerous Sasol ‘Blauer Salon’ minutes and from Sasol’s statements that by those minutes Mr K. Sasol’s representative at the technical meetings, informed Mr O. of the content of the discussions at those meetings. In addition, the figure ‘0’ was often used by participants to note that prices were being maintained. Accordingly, although, strictly speaking, the minute at issue constitutes an internal communication between Mr K. and Mr O., the fact none the less remains that it shows that there was an agreement not to change prices, reached during the technical meeting in question. The arguments put forward by the applicant in that regard must therefore be rejected.
Nor can the applicant counter the Commission’s finding by claiming that no price increase was agreed at those meetings. An agreement to maintain prices is also an agreement to fix prices, since there is a concurrence of wills of the participants on the application of a price level which they have fixed together.
Consequently, the Commission was correct, at recital 240 to the contested decision, to rely on the technical meeting in question for its conclusion that ‘the undertakings involved fixed minimum prices’.
In the second place, as regards the meeting held on 23 and 24 November 1992, the Commission referred, at recital 128 to the contested decision, to a MOL note containing the comment ‘first quarter – maintain prices – exchange information where necessary – minimal price’. The Commission inferred that that note showed the existence of an agreement to maintain prices.
In the applicant’s submission, the reference in the MOL note is ‘meaningless’ in so far as it could not be attached to a defined price. In addition, MOL did not confirm that interpretation and a different interpretation, in favour of a mere exchange of information, would have been just as credible.
The Court considers that the explanation supplied by the applicant is not plausible. No undertaking’s name is specified before that comment and it is therefore impossible to conclude that the note was a unilateral communication. To take an example to the contrary, the Sasol note, relating to the ‘Blauer Salon’ meeting held on 17 and 18 September 1996, contained the comment ‘MOL, HU DEM 110,- flü.ffr ab 1/10.96’. The Commission concluded on that basis that that ‘show[ed] that the individuals representing the companies at that meeting [had] discussed and disclosed future pricing intentions’ (recital 141 to the contested decision).
Thus, the Commission was correct, at recital 240 to the contested decision, to rely on that technical meeting in order to conclude that ‘the undertakings involved fixed minimum prices’ (see paragraph 89 above).
In the third place, as regards the meeting held on 7 and 8 September 1995 (recital 137 to the contested decision), the applicant claims that the participants only exchanged information about their prices.
That interpretation is contradicted by the Sasol ‘Blauer Salon’ note, as interpreted by Sasol in the context of the administrative procedure, and by the MOL note relating to that meeting.
The MOL note contains the following:
‘11.
Schümann DEM 970, - min. price
…
13.
Total DM 920,- → raised DM 950, → DM 970, - planned before the end of the year
…
15.
we are raising to 900’.
The Sasol ‘Blauer Salon’ note states ‘Preise hoch per 1/1.95’. According to Sasol’s response of 16 December 2006 to a request for information from the Commission, moreover, the date was stated incorrectly, so that in fact the price increase was planned for 1 January 1996. According to that response, that reflects the outcome of the meeting held on 7 and 8 September 1995.
Accordingly, the Commission’s assertion that the participants in that meeting ‘exchanged information on their future pricing policy and discussed and fixed price increases as well as minimum prices’ is based on a particularly coherent body of evidence. Sasol’s statement dispels any uncertainty as to the existence of a concurrence of wills on an increase in prices. The mere fact that the level of the increase and that of the minimum prices varies from one undertaking to another does not affect the characterisation of that meaning as having given rise to a ‘price fixing’ agreement, as the expression ‘price fixing’ does not imply the application of a single price for all participants.
In the fourth place, as regards the technical meeting held on 22 and 23 February 1996, the Commission relied, at recital 139 to the contested decision, on a MOL note containing the following: ‘paraffin – all levels of quality – same price DEM 108; small customer/large customer – same price DEM 108; dipping wax DEM 1200-1250’. According to that recital, that shows that the participating undertakings agreed on the prices of paraffin waxes.
The applicant submits that that note, read as a whole, does not permit such a conclusion to be drawn. It maintains that the information was presented in the usual form of MOL notes, which involved ‘going round the table’ and collecting the information disclosed and exchanged by participants.
However, it should be observed that Sasol and Repsol, independently of each other, confirmed the anti-competitive nature of the technical meeting held on 22 and 23 February 1996. In addition, the MOL note also contains the comment ‘from DEM 1.8 80/t increase everywhere’, that is to say, the date and level of the price increases.
Thus, the Commission was correct to establish at recital 240 to the contested decision that at that technical meeting the undertakings involved had fixed minimum prices and agreed on price increases.
In the fifth place, as regards the meeting held on 14 and 15 May 1996 (recital 140 to the contested decision), the Sasol ‘Blauer Salon’ note states the following:
‘Starting point was price increase [second] half of ’96
– D + F: on 1.8.96 candle – FRP min 115, – nto nto liquid freight paid

tealight 115%

gravelight 115%

packed + 5% on today’s price

blender FRP min 105,- nto, nto liquid freight paid’.
On that basis, the Commission concluded that ‘the German and French undertakings involved [had] agreed during the discussions to increase prices in the second half of 1996 in planning the increase of paraffin wax for candles on 1 August 1996’.
The applicant claims that there was no agreement on prices and that, in any event, it was not present at that meeting.
Those arguments cannot undermine the Commission’s analysis. Sasol’s reply of 16 December 2006 to a request for information from the Commission states unequivocally that an agreement on prices was reached at that meeting.
The fact that the applicant did not participate in that meeting cannot prevent the Commission from concluding, generally, that it had participated in the price-fixing agreements and from taking into account in that regard the evidence relating to that meeting. An undertaking may be held liable for an overall cartel even though it is shown to have participated directly in only one or some of its constituent elements, if it knew, or must necessarily 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 that overall plan included all the constituent elements of the cartel (see
JFE Engineering and Others
v
Commission
, paragraph 41 above, paragraph 370 and the case‑law cited).
According to Sasol’s reply of 16 December 2006 to a request for information from the Commission, Sasol learnt, via telephone calls after the meeting, that Total had in fact increased its price to German marks (DEM) 115 per 100 kg, but had granted rebates for certain sub-categories of products. Accordingly, the applicant was not only informed about the agreement concluded at the meeting in question but also applied its outcome in part. Since that aspect of the statement, aimed, admittedly, at the applicant’s conduct, could not have resulted in to the alleviation of Sasol’s liability, since Sasol could have lost the benefit of leniency if had provided false information to the Commission and since, in any event, Sasol emphasised that the applicant’s adherence to the agreement was only partial, there is no reason to cast doubt on the reliability of that statement.
In the sixth place, it is appropriate to examine the applicant’s arguments concerning the meetings held on 30 and 31 October 1997 (recital 145 to the contested decision) and 5 and 6 May 1998 (recital 147 to the contested decision).
It should be observed that the ‘Blauer Salon’ note relating to the first meeting states the following:
.‘DateIncreaseMin. price√ SCHS, D...√ Dea, D...√ SRS-Tuda, D...√ MOL, HU1.1...√ Total, F1.1.DEM 10,-DEM 120Mobil-Bp, F...√ Repsol, E...√ Agip, I1.1.DEM 10’.
Sasol stated that that note showed that all the participants had committed themselves to increase prices by DEM 10 to 12 per 100 kg, that Total and Agip had wanted to increase prices by DEM 10 and that that would lead to a minimum price of DEM 120 per 100 kg, at least for Total.
The levels and dates of the increases are wholly confirmed by two notes relating to that meeting, found at MOL’s premises.
The applicant confines itself to claiming that there is another explanation for the notes found at MOL’s premises, namely that the prices of the various types of paraffin waxes were read aloud by one of the participants. However, that alleged explanation is clearly contradicted by Sasol’s note, as interpreted by Sasol, in respect of which the applicant has submitted no argument.
Furthermore, the applicant’s argument that the different dates of the planned increases show that the participants did not reach an agreement is wholly unfounded. The different dates for the planned increases may indicate that the participants took account of the individual commercial positions of the different undertakings represented. In addition, in order to be able to maintain the illusion with customers that the paraffin waxes market always obeyed the rules of supply and demand, it could be reasonable that the participating undertakings should introduce new prices on different dates, thus pretending that their increases were the result of independent business decisions. Such an explanation of the application of different dates and different levels of increases was supplied by Shell, for the period following the beginning of 2004.
The Commission’s conclusion that a minimum price of DEM 1 200 per tonne was fixed for at least some participants at the meeting held on 30 and 31 October 1997 is further confirmed by a MOL note relating to the meeting held on 5 and 6 May 1998, which contains the comment ‘Repsol – min. price DEM 1 180 (unable to sell at 1200)’. The most coherent explanation of that comment is that Repsol could not charge the price agreed at the previous meeting and indicated the minimum price which seemed to it to be possible to charge.
Accordingly the Commission demonstrated to the requisite legal standard that the participants had fixed the prices of paraffin waxes at the meeting held on 30 and 31 October 1997.
In the seventh place, as regards the technical meeting held on 3 and 4 November 1998, the Commission relied, at recital 149 to the contested decision, on a MOL note and a Sasol ‘Blauer Salon’ note.
The Sasol ‘Blauer Salon’ note contains the following:
‘proposal by 1/1 99 + DEM 6 ?,- for all [prices] that are below DEM 120,-
= circular will be drafted with the reasoning “situation in raw material” (= availability of amounts) with the goal
—
that prices that are below DM 120,- are increased
—
it is secured that prices do not decrease
—
candle makers get “documents” for their negotiations with [presumably store] chains’.
The MOL note contains the following comment: ‘DEM 60,-/t to raise from 1 January 1999’.
In the contested decision, the Commission inferred from those indications that the participants had discussed the situation that had arisen following their agreement, dating from the technical meeting held on 30 and 31 October 1997 and fixing as its objective the increase of prices of paraffin waxes above DEM 120 per 100 kg, which had not yet been achieved. The participants then agreed at the technical meeting held on 3 and 4 November 1998 on a price increase of DEM 6 for all customers buying paraffin waxes at below DEM 120, which was planned for 1 January 1999. Likewise, according to the contested decision, that increase should be explained to customers by a shortage of raw materials. In addition, the individuals representing the companies agree that, in any event, prices should not fall.
The applicant claims that the reference in the MOL note relates to a comment made by Mr S. (Shell), since it comes under the name ‘S.’. The comment in Sasol’s ‘Blauer Salon’ note that ‘[a] circular will be drafted … with the goal … [that] prices do not decrease’ refers to a Sasol internal circular and cannot be understood as an agreement concluded at the technical meeting, but only as an expressed objective that Sasol defined.
In that regard, it should be observed that the explanation supplied by the applicant is not plausible and is not supported by a coherent interpretation of the documentary evidence. The applicant wholly fails to explain why Sasol would have decided to draft a circular addressed to its customers and announcing a price increase of DEM 6 per 100 kg following the unilateral statement of another participant, Shell, in the absence of an agreement between participants to increase prices. In addition, the interpretation supplied by the Commission establishes the links with the discussions at the technical meeting held on 30 and 31 October 1997, unlike the applicant’s interpretation.
Accordingly, the Commission was entitled to infer from the evidence relating to the technical meeting held on 3 and 4 November 1998 that the participants had agreed to increase prices.
In the eighth place, it is appropriate to examine the applicant’s arguments concerning the meeting held on 27 and 28 October 1999.
In that regard, the Commission had in its possession a Sasol ‘Blauer Salon’ minute, which contains the following comments:
.
‘Increase
present: Total
per 15/1.2000 + Ffr 2300 = DEM 6,85
present: Repsol
.
present:SRS-Tuda
per 10/1.2000
present: Dea
per 17/1.2000 according to [Mr B. from Dea]
+8,50 DEM
present: SCHS
per 15/1.2000
Mobil-Bp, F
..
not present: MOL
per 1/2.2000 (alt DEM 110.- flü ffr)
+ 6 DEM, - according to T. T. 10/1
not present: Mobil
.
[not present] Esso, F
per 1/2.2000 + 40 $,- (according to MA 19/1)
Kuwait, NL per? + 8 DEM,- (according to Buchh [Buchhaltung (accountant department)]) 24/1
Generally for all industries
- liquid
+ DEM 7-9,- %kg (in no case less than 6 DEM)
- packed
+ 11 DEM,- % kg’
The Commission interpreted that note as follows, taking Sasol’s explanations into account (recital 156 to the contested decision):
‘This note shows that Total, Repsol, H&R/Tudapetrol (“SRS Tuda”), Dea and Sasol committed themselves to price increases in January 2000. Total was to increase prices on 15 January by FRF 2300, H&R/Tudapetrol on 10 January and Dea on 17 January by DEM 8.50 and Sasol on 15 January 2000. For the undertakings that were not present, MOL is listed as increasing on 1 February 2000 by DEM 6. Esso was to increase on 1 February 2000 by USD 40 and Kuwait at an unknown date by DEM 8. The three latter pieces of information were obtained by Sasol after the technical meeting, through bilateral contacts and, according to Sasol, added to the document on 7 December 1999. This is demonstrated by the passages “according to” with a name and a date. Sasol phoned the representatives of these undertakings on the mentioned date and received the information on the price increase.’
The applicant cannot validly claim that this was not an exchange of information. That argument is clearly contradicted by Sasol’s statement of 16 December 2006, according to which Total, Repsol, ‘SRS TUDA (Hanson & Rosenthal)’ were present and committed themselves to increasing their prices in January 2000.
The fact that the dates alongside the undertakings’ names vary does not support the applicant’s argument, for the reasons already stated at paragraph 115 above.
Likewise, the most plausible explanation for the absence of figures alongside the names of the undertakings represented at the meeting, in the light of Sasol’s statement, is that the level of price increases was the same for all of those undertakings, namely DEM 6.85.
Accordingly, the Commission demonstrated to the requisite legal standard the existence of a price-fixing agreement at the meeting in question.
In the ninth place, it is appropriate to examine the applicant’s arguments relating to the meeting held on 26 and 27 June 2001 (recital 163 to the contested decision).
In that regard, Sasol’s ‘Blauer Salon’ note contains the following comments:
‘during July: cancel prices of special customers … at earliest possible date …
end of August Cancel all prices by 30/9.01

By 1/10.01 + [EUR] 7,-’.
According to the contested decision, those indications show that the individuals representing the undertakings agreed to increase paraffin prices by EUR 7 on 1 October 2001, preceded by the cancellation of all the existing pricing arrangements by 30 September.
The applicant claims that Sasol’s statement of 16 December 2006 does not support that interpretation and shows only that prices were discussed.
However, that assertion is contradicted by Sasol’s statement. According to that statement, Mr O. of Sasol took note of the results of the technical meeting held on 26 and 27 June 2001 and the intention to increase prices reflected the conclusions drawn from that meeting.
Since the statement mentions conclusions drawn during of the meeting concerning price increases, it must be concluded that that statement shows that an agreement to fix prices was reached at that meeting.
In the 10
th
place, the applicant takes issue with the assessment of the evidence relating to the meeting held on 11 and 12 May 2004, set out at 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] 6 000/T

+ Tealight: [EUR]50 -> [EUR] 500/T

+ Microwax: [EUR] 25 -> [USD] 50/T
…
-> [EUR]40/T Slack Wax’.
According to the contested decision, it may be inferred from the overall context of the handwritten note found at Total France’s premises that an arrow preceding the price points to an agreed strategy for the future, so that a price increase had been agreed by the participants.
In the applicant’s submission, the Commission’s interpretation of the handwritten note found at Total France’s premises cannot be accepted, owing to the contradiction in the statements relating to that technical meeting. The applicant maintains that Shell stated that a price increase had been agreed, whereas Sasol referred to the fact that a price increase had been discussed. Therefore, in the light of the handwritten note found at Total France’s premises, too, only an exchange of information can be established.
It must be held that Shell’s statement of 14 June 2006 is not in any way ambiguous in that it asserts that a price increase was agreed at that technical meeting and was to become effective on 1 July 2004.
The applicant cannot validly rely on Sasol’s statement of 12 August 2005 to deny that an agreement was reached at that meeting. The fact that Sasol admits that discussions on prices took place at that meeting does not in any way preclude the fact that, on the basis of those discussions, the participants reached an agreement. In addition, in that statement, Sasol also asserted that it had sent a ‘chain letter’ announcing a price increase of between EUR 5 and 7 per 100 kg on 14 June 2004 and that it had received a letter from H&R announcing that it would be increasing its prices by between EUR 5.20 and 6.80 per 100 kg.
It therefore follows from that statement that Sasol had meant to increase its prices by the same amount as that indicated in the handwritten note found at Total France’s premises and that, subsequently H&R had also sent a letter announcing price increases, indicating an increase very close to Sasol’s.
Accordingly, the Commission was correct to find, in the contested decision, that the participants had agreed to increase paraffin wax prices at that technical meeting.
In the light of the foregoing examination, and without there being any need to examine the evidence relating to all the technical meetings in which the applicant participated, the Court finds that the Commission demonstrated to the requisite legal standard, in the contested decision, that the participants in the cartel had reached agreements fixing prices of paraffin waxes at the technical meetings held on 3 and 4 September 1992 (recital 126 to the contested decision), 23 and 24 November 1992 (recital 128), 7 and 8 September 1995 (recital 137), 22 and 23 February 1996 (recital 139), 14 and 15 May 1996 (recital 140), 30 and 31 October 1997 (recital 145), 3 and 4 November 1998 (recital 149), 27 and 28 October 1999 (recital 156), 26 and 27 June 2001 (recital 163) and 11 and 12 May 2004 (recital 174).
The overall assessment
In the first place, it should be observed that Shell, Sasol and Repsol have admitted that the prices of paraffin waxes had been discussed at the technical meetings with the general objective of reaching agreement on their level. According to the case‑law cited at paragraph 32 above, the fact of having such a common objective already constitutes an agreement within the meaning of Article 81(1) EC, since a concurrence of wills on the very principle of the restriction of competition existed. In addition, those undertakings also stated that at several technical meetings the participants had in fact agreed on minimum prices or on price increases and sometimes even on the means of increasing prices. It should be emphasised that, in their statements, the undertakings also referred to Total’s participation in the technical meetings and stated the names of the applicant’s employees who had represented it at the meetings.
In the second place, it must be emphasised that the statements in question are corroborated by numerous handwritten notes contemporaneous to the technical meetings that the Commission found during the inspections, to which the applicant had access during the administrative procedure and some of which are cited, in particular, at recitals 126, 128, 137, 139, 140, 145, 149, 156, 163 and 174 to the contested decision.
In the third place, it should be borne in mind that the applicant was present at 39 anti-competitive meetings out of a total of 51 held during the period of its participation in the cartel, that is to say, between 3 September 1992 and 28 April 2005.
In that regard, first, it should be recalled (see paragraph 146 above) that the Commission established, in the contested decision, that the participants in the cartel had concluded agreements fixing paraffin wax prices at the technical meetings held on 3 and 4 September 1992 (recital 126 to the contested decision), 23 and 24 November 1992 (recital 128), 7 and 8 September 1995 (recital 137), 22 and 23 February 1996 (recital 139), 14 and 15 May 1996 (recital 140), 30 and 31 October 1997 (recital 145), 3 and 4 November 1998 (recital 149), 27 and 28 October 1999 (recital 156), 26 and 27 June 2001 (recital 163) and 11 and 12 May 2004 (recital 174). The applicant was present at all those technical meetings, apart from the one held on 14 and 15 May 1996.
Second, the applicant acknowledges that information on paraffin wax prices was exchanged at the technical meetings held on 30 September 1994 (recital 133 to the contested decision), 27 January 1995 (recital 134), 17 and 18 September 1996 (recital 141), 2 and 3 September 1998 (recital 148), 3 and 4 February 2000 (recital 157), 25 and 26 May 2000 (recital 159), 21 and 22 February 2002 (recital 165), 18 December 2002 (recital 168), 27 and 28 February 2003 (recital 169) and 14 and 15 January 2004 (recital 173), at which it was present.
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.
Thus, at least so far as the technical meetings referred to at paragraphs 146 and 151 above are concerned, the Commission had in its possession a body of irrefutable evidence from which it emerged that the participants had regularly exchanged information on their prices and on planned increases at technical meetings for more than 12 years. The applicant has provided no coherent explanation in respect of those activities that might call into question the Commission’s assertion that the object of those practices was, in particular, price fixing. On the contrary, the long period over which the meetings were systematically held constitutes in itself an indicium that the participants had as their objective to harmonise their pricing policies, knowingly substituting cooperation between them for the risks of the market, putting in place concerted practices relating to the price of paraffin waxes, indeed, at least so far as the technical meetings referred to at paragraph 146 above are concerned, price-fixing agreements.
For the sake of completeness, it should be observed that, according to the case‑law cited at paragraph 34 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. In the present case, the applicant does not deny either having had such contact or having exchanged sensitive information at the technical meetings.
In the fourth place, the applicant cannot validly claim that the Commission has not demonstrated that it participated in the agreements or concerted practices put in place at the 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 47 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 principle of law 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 47 above, paragraph 82, and
Sumitomo Metal Industries and Nippon Steel
v
Commission
, paragraph 156 above, paragraph 48).
However, the applicant, having regularly participated in the technical meetings, does not claim to have publicly distanced itself from what was discussed at the anti-competitive meetings.
In the fifth place, it should be noted that the explanations put forward by the applicant relate each time to a particular technical meeting. Thus, they are not capable of constituting a plausible explanation in respect of the body of evidence gathered by the Commission, which enabled it to establish the existence of a complex, single and continuous infringement.
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 participants in the cartel, including the applicant, had committed an infringement consisting, in particular, in ‘agreements and/or concerted practices aimed at price-fixing and exchanging and disclosing commercially sensitive information’.
Thus, the Commission has not infringed Article 81 EC in that respect.
Consequently, the first part of the present plea must be rejected.
Second part, concerning the absence of proof of the implementation of the price-fixing agreements
By the second part of this plea, the applicant claims that the Commission infringed Article 81 EC in finding that the infringement had been implemented. In particular, it submits that the Commission did not demonstrate that the fact of sending letters announcing price increases constituted the implementation of the main aspect of the infringement.
As a preliminary point, it should be borne in mind that, in section 4.1 of the contested decision, headed ‘The Basic Principles and Functioning of the Cartel’, the Commission stated the following:
‘…
(113)
The outcome of the technical meetings 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 technical meetings informed each other of the steps they took to implement the results of the technical meetings. 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 are identified as having been exchanged within six weeks after technical meetings. 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.’
Next, in section 5.1 of the contested decision, under the heading ‘Implementation’, the Commission considered, in particular, the following:
‘…
(299)
Although the Commission is not obliged to demonstrate the implementation of an anti-competitive agreement, such implementation can be demonstrated in this case. The exchange of pricing letters as well as oral information about pricing (see recital 248) also served as a means for monitoring the agreement. By informing each other of forthcoming price increases or price cancellations, cartel members were able to verify if an undertaking was living up to the commitments it undertook at the technical meetings. In addition, implementation was occasionally discussed at the technical meetings, for instance at those described in recitals 147 and 149. The fact that the cartel members also had cross-supply relationships among themselves, which in principle could explain certain communications among them, does not alter this consideration. The issue is not whether certain communications would have occurred anyway as a consequence of such bilateral cross-supplies, but whether or not these communications objectively helped [to] ensure the monitoring of the implementation of the infringement.’
In the first place, the applicant claims that, according to the corporate statements, sending pricing letters to the other participants was not systematic, so that it did not constitute a means of implementing the main aspect of the infringement. In the applicant’s submission, if the technical meetings had had as their object the common fixing of new prices, it would have been necessary, in order to enable the participants to ensure that the agreement was being observed by everyone, that each of the participants communicated its prices to all the others or, at least, to one of them with responsibility for ensuring that the agreement was being observed, which was not the case.
In any event, in the applicant’s submission, the practice of exchanging pricing letters cannot be raised against Total France. First of all, as Shell acknowledges, Total France did not often send letters detailing price increases to its customers and habitually announced its price increases orally, during visits to customers, without communicating them to its competitors. Furthermore, of the 123 letters to which the Commission refers, only nine are attributed to Total France and most of them are exchanges of correspondence concerning requests of offers of prices with a view to a possible purchase.
It should be observed that those arguments of the applicant concern exchanges of pricing letters between participants in the cartel.
However, those exchanges do not constitute the strict implementation of the infringement at issue, which consisted in the application, vis-à-vis customers, of price levels, of the maintenance of prices or increases in prices discussed or fixed at the meetings. The Commission asserted, at recital 113 to the contested decision, that ‘[t]he outcome of the technical meetings was mainly implemented through price increase announcements to customers or by cancelling existing pricing schemes’. The exchanges of pricing letters and oral discussions following the meetings concern the mechanism for controlling the implementation of the infringement by the participants.
Thus, the applicant’s argument that only nine pricing letters exchanged between competitors, out of the Commission’s sample of 123 letters, can be attributed to it is irrelevant. In any event, the applicant itself acknowledges that it did not often send pricing letters communicating price increases to customers, but normally announced price increases orally during visits to customers. Consequently, the applicant, on the one hand, itself admits that it regularly increased its prices and, on the other, explains the reason why it was in a position to send only a few copies of pricing letters to competitors: where price increases were communicated to customers orally, no copy of the pricing letter could be sent to competitors, since no pricing letter was sent to the customers.
In the second place, it should be observed that the applicant’s argument relating to the failure to implement the infringement in the present case is contradicted by the evidence on which the contested decision was based.
Shell expressly asserted, in its statement of 18 March 2005, that after the technical meetings its representative habitually received a pricing letter announcing the price increase applied by a competitor. Those letters were regular announcements on the new prices that paraffin wax producers sent to customers and to other producers, who often also buy paraffin waxes from each other in the context of cross supplies. According to the information supplied by Shell, once the first producer had thus marked its intention to increase its prices, the other participants in the cartel followed suit, in accordance with the discussions during the meetings.
In its statement of 14 June 2006, Shell also asserted that each time it had sent a pricing letter announcing a price increase, that letter contained the price agreed at the previous technical meeting. It also stated that it had regularly received such letters from Sasol, H&R and ExxonMobil, although it had never bought paraffin waxes from the latter. Although Total did not often send such letters to its customers, Shell received one or two from Total. In addition, according to Shell’s statement, in order to ensure that the price increases agreed during the technical meetings were being properly implemented, its representative telephoned the representatives of Sasol, H&R, Total and ExxonMobil before beginning price negotiations with its customers.
That mechanism for implementing the cartel is confirmed by Sasol’s statement of 12 August 2005, which also provides detailed examples relating to specific technical meetings.
In the third place, the applicant contends that, contrary to the Commission’s finding, there is no correlation between the information available about the technical meetings and the pricing letters to which the Commission refers.
First, it is apparent from a number of statements cited above that the price increases agreed at the technical meetings could not generally be applied in full vis-à-vis customers. Shell stated that around two thirds of the agreed increases could be implemented. In addition, there are several indications in the file that the participants were frequently unable to implement the agreed increase at all.
Second, it should be borne in mind that, according to the case‑law cited at paragraph 47 above, the evidence relating to cartels is normally fragmentary and incomplete. Thus, since the Commission did not have detailed evidence of what was said at each technical meeting and since it had only a small proportion of the pricing letters which the participants sent to their customers, the applicant cannot derive any valid argument from the fact that the Commission was unable to reconstitute the precise link between the discussions at the technical meetings and the prices indicated in the pricing letters, particularly because the prices of the various paraffin wax products varied greatly and customers logically tried to resist the increases.
The present argument must therefore be rejected.
In the fourth place, the applicant claims that the communication of pricing letters informing competitors of the price increases was justified by the customer-supplier relationship between the undertakings participating in the cartel.
In that regard, it should be borne in mind that the implementation of the main aspect of the infringement consisted in the announcement of price increases to customers or the cancellation of existing pricing arrangements, and not the sending of pricing letters to competitors, which was, rather, a means of ensuring that such implementation was taking place. In any event, Shell stated that it had received pricing letters from a competitor to which it did not make supplies (see paragraph 173 above). Also, both Shell and Sasol confirmed that the sending of pricing letters was part of the mechanism for implementing the main aspect of the infringement.
The applicant’s argument must therefore be rejected.
In the fifth place, in support of its assertion that it did not participate in the implementation of the infringement, the applicant claims that, according to Shell’s statement, the only time when Sasol attempted to convince the applicant to circulate a letter announcing a price increase, it took the opportunity to strengthen its competitive position by sending a fictitious increase letter to its competitors and not to its customers.
In that regard, it should be emphasised that it is apparent from Shell’s statement that when Sasol asked the applicant to be the first to send a pricing letter indicating a price increase to customers, the applicant did not do so, but sent a ‘copy’ of a fictitious letter announcing an increase to its competitors. That therefore shows only that the applicant did not comply with Sasol’s request that it be the first to circulate a pricing letter indicating an increase in prices.
According to the case‑law, the fact of not complying with a cartel does not alter the existence of the cartel (see, to that effect, Case
T-141/94
Thyssen Stahl
v
Commission
[1999] ECR II-347
, paragraphs 233, 255, 256 and 341). Even on the assumption that it is proved that certain participants in the cartel succeeded in misleading other participants by sending incorrect information and in using the cartel to their advantage, by not complying with it, the infringement committed is not eliminated by that simple fact (judgment of 8 July 2008 in Case T‑52/03
Knauf Gips
v
Commission
, not published in the ECR, paragraph 210; see also, to that effect, judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03
Tokai Carbon and Others
v
Commission
[2005], not published in the ECR, paragraph 74).
The argument which the applicant puts forward in that respect must therefore be rejected.
In the sixth place, it should be emphasised that, as the Commission correctly observes, the implementation of a single, complex and continuous infringement must be assessed as a whole.
In that regard, this Court has already held that, where competitors participated in meetings during which they exchanged information on, in particular, the prices which they intended to charge on the market, an undertaking, through its participation in a meeting having an anti-competitive object, had not only pursued the aim of eliminating in advance uncertainty about the future conduct of its competitors, but also, in determining the policy which it intended to follow on the market, could not have failed to take account, directly or indirectly, of the information obtained during the course of those meetings (Case
T-1/89
Rhône-Poulenc
v
Commission
[1991] ECR II-867
, paragraphs 122 and 123, and
Knauf Gips
v
Commission
, paragraph 184 above, paragraph 276).
Next, according to the case‑law, subject to proof to the contrary, which the economic operators concerned must adduce, the presumption must be that the undertakings taking part in the concerted arrangements and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on that market. That is all the more the case where the undertakings concert together on a regular basis over a long period (
Hüls
v
Commission
, paragraph 33 above, paragraph 162).
In the present case, the concertation on prices was regular and frequent and continued over a long period: the Commission has information about more than 50 meetings between 1992 and 2005. Likewise, the Commission produced 343 pricing letters from the applicant informing customers of price increases. The Shell and Sasol statements also show that Total participated in the implementation of the abovementioned practices.
In the light of the foregoing considerations, the Court considers that the Commission was correct to find that the infringement was implemented and that the applicant participated in its implementation.
In the light of the foregoing, the second part of the second plea must be rejected.
Third part, concerning geographic market and customer allocation
The applicant claims that the Commission did not show, in the contested decision, that it had participated in the second aspect of the infringement. The Commission therefore infringed Article 81 EC.
In that regard, the Commission asserted the following in the contested decision:
‘…
(108)
Concerning market and customer allocation discussions, there was a “general understanding between the attending wax manufacturers to respect each other’s main customers in their respective home market” for paraffin, and the companies “tried to protect their home markets by creating an atmosphere of mutual trust and good-will among themselves”.
…
5.3.2.3. Customer and/or Market Allocation
(243)
It follows from the evidence described in recitals 98, 108, 137, [technical meeting held on 7 and 8 September 1995] 145 [technical meeting held on 30 and 31 October 1997], 147, [technical meeting held on 5 and 6 May 1998], 168 [technical meeting held on 18 December 2002] and 170 [technical meeting held on 16 and 17 April 2003] that ExxonMobil, MOL, Repsol, Sasol, Dea (later Shell) and Total allocated customers and/or volumes to be sold to particular customers (“customer allocation”) and/or allocated geographic areas as “home markets” (“market allocation”).
(244)
ExxonMobil, Sasol and Shell have conceded that customer and/or market allocation occurred. In their replies to the statement of objections they have reconfirmed or have not denied such practices.’
Geographic market allocation
In the first place, the applicant claims that the evidence on which the Commission based its assertions at recital 108 to the contested decision is vague.
In that regard, it should be emphasised that Sasol’s reply of 16 December 2006 to a request for information from the Commission states unambiguously that the participants in the technical meetings sought to protect their home markets; Sasol states that ‘Total, BP France and Mobil’ claimed French territory, while the German producers (Sasol, H&R and Shell) claimed German territory as their respective home markets. In addition, Sasol mentioned in that reply that when Repsol stated that it had excess volumes in its own production, Total’s representative protested against the possibility that Repsol should sell its excess production in France. Furthermore, Sasol described an incident that occurred during the technical meeting held on 20 and 21 February 1997, when it observed that it had lost sales volume of 6000 tonnes in 1996 and assumed that the French producers had secretly supplied those volumes to German customers in spite of the arrangements on respecting home markets. In reaction, Sasol had decided to re-acquire those market positions by disregarding the prices agreed at the technical meetings.
Furthermore, Shell’s statement of 14 June explains that there was a tacit agreement between participants that customers within a radius of 50 to 100 km of the production plant of each participant belonged to that participant. Under that agreement, a candle producer established in Hamburg (Germany) belonged to Sasol and Shell. If another participant attempted to sell to that candle producer, Sasol and Shell would have begun to supply candle waxes to a major customer of that participant, in retaliation. Shell also stated that its representative at the technical meetings had told Total’s representative that it would refrain from selling into France, so that it expected that Total would not sell to Hamburg. Next, Shell supplied examples of customers who were reserved customers of certain participants in the cartel, explaining that candle manufacturers established in France were the reserved customers of Total and ExxonMobil and that that was clear to its representative and the other participants during the technical meetings. In addition, Shell asserted that there was a tacit agreement between Sasol and Total under which each undertook not to enter the other’s home market (France in Total’s case and Germany in Sasol’s), that is to say, to sell only limited quantities to the territory reserved for the other party, as is apparent from the discussions between Sasol’s and Total’s representatives at the technical meetings. According to that statement, H&R none the less sold paraffin waxes to French customers. If those sales exceeded 1000 tonnes per year, Total complained about H&R’s conduct at the next technical meeting, informing all participants that Total would not tolerate significant imports into France. Total thus increased its sales to two traditional customers of H&R, in retaliation. Last, Shell stated that respect for home markets and reserved customers was part of a general plan, which was accepted by all the participants in the technical meetings. When a participant contravened those arrangements, the producer or producers to whom the market or customer was reserved protested and persuaded the offending participant, if necessary by reprisals, to cease his sales, where necessary by offering excessive prices to the customer so that it would no longer buy anything.
It is apparent from the foregoing that Sasol and Shell provided precise and consistent information about the allocation of markets and customers between participants in the cartel, contrary to the applicant’s assertion. It should be added that the statements in question were made on the basis of the testimony of individuals who had participated in the technical meetings, after mature reflection, and that they also incriminate the undertakings on whose behalf there were made. Thus, within the meaning of the case‑law cited at paragraph 66 above, and contrary to the applicant’s assertions, the abovementioned statements are particularly reliable.
In the second place, it should be observed that Sasol’s and Shell’s statements are also corroborated by a Sasol ‘Blauer Salon’ note, which the Commission attached to the technical meeting held on 17 and 18 December 2002 (recital 168 to the contested decision).
The applicant claims that the Commission cannot rely on the Sasol ‘Blauer Salon’ note which it attaches to the meeting held on 17 and 18 December 2002, since that note does not indicate the year.
In that regard, it should be borne in mind that, according to the case‑law cited at paragraph 81 above, the fact that a document is undated or unsigned or is badly written does not remove all probative force, especially where its origin, likely date or content may be determined with sufficient certainty. The Commission explained in the contested decision that the most likely year was 2002, since that was the only year when a technical meeting was held on 17 and 18 December. Irrespective of the year, moreover, the note in question shows that markets or customers were allocated, since it contains the following comment: ‘Repsol: has problems (55000 tons per year own production) – [Total’s representative] immediately protested against additional/traded volumes – Repsol seems to be ready to think about it’. The most plausible interpretation of that note is that Repsol wished to sell its excess production to France, which is the territory nearest to its production facilities in Spain, and that Total wished to make clear that it regarded that territory as being reserved for it.
Furthermore, according to the case‑law cited at paragraph 40 above, the indicia to which the Commission refers in the contested decision for the purpose of proving an infringement of Article 81(1) EC by an undertaking must be assessed not in isolation but as a whole. The general market-allocation plan is already clear from Shell’s and Sasol’s statements and the reference in the Sasol note forms part of the mechanism described in those statements.
Consequently, contrary to the applicant’s assertions, the Sasol ‘Blauer Salon’ note in question constituted contemporaneous documentary evidence of the allocation of markets or customers.
In the third place, the applicant submits that the rule on respect for home markets is contradicted by intra-Community trade, in particular that between France and Germany.
In that regard, first, it should be observed that it follows from the statements referred to above that an undertaking’s home market does not necessarily correspond to the territory of a particular Member States but, in certain cases, to the region around the production sites of a given undertaking.
Second, it also follows form Sasol’s and Shell’s statements, cited at paragraphs 195 and 196 above, that there was not a watertight partitioning of the markets, or the exclusive supply of paraffin waxes to certain customers, but rather a partly tacit agreement not to supply significant quantities to territories and customers regarded as belonging to another producer of paraffin waxes.
Third, the statements reveal occasional breaches of the home markets rule, which gave rise to reprisals on the part of the undertaking whose territory was affected. That may in itself explain the fluctuations in intra-Community trade.
Accordingly, this argument must be rejected.
In the light of the foregoing, the applicant’s arguments relating to the Commission’s findings in respect of market allocation must be rejected.
Customer allocation
The applicant maintains that the documentary evidence put together by the Commission in the contested decision does not enable an agreement on customer allocation to be established, but, at most, an exchange of information.
In that regard, it should be observed that the precise, consistent and reliable statements of Sasol and Shell mention agreements and concerted practices on customer allocation. In any event, the Commission did not characterise the second aspect of the infringement as an agreement, but as the aspect consisting of a continuous and complex infringement, in that it concerned agreements, concerted practices and the exchange of sensitive information between competitors. Thus, even the evidence and indicia of such an exchange of information are relevant from the aspect of demonstrating the second aspect of the infringement.
First of all, it should be observed that, at recital 145 to the contested decision, the Commission cited, in the context of the technical meeting held in Hamburg on 30 and 31 October 1997, a MOL note containing the following:
‘Blenders (DEM 100 cheaper than usual candle producers)
Astor -> Schümann price now DEM 1 000 [ex works]
[Astor] -> Total DEM 1 050 CPT
Paramelt -> Total DEM 1 100 CPT
Iberceras -> Total DEM 1 030’.
In the applicant’s submission, the MOL note does not permit the conclusion that a customer allocation agreement was reached, since only an exchange of information on the prices charged by the different undertakings to their customers is apparent on reading that note.
As a preliminary point, it should be borne in mind that the MOL notes are handwritten notes drafted by the individuals who participated in the meetings, the content of which is structured and relatively detailed. Their probative value is therefore very high.
In addition, according to the case‑law cited at paragraph 47 above, the Commission cannot be required to produce documents attesting explicitly to the various elements of the infringement committed. The fragmentary and incomplete items of evidence which may be available to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant circumstances to be reconstituted. The MOL note clearly associates the customers Astor, Paramelt and Iberceras with certain undertakings which participated in the cartel, including the applicant.
Thus, the Commission’s explanation that those indications bear witness to the discussions on customer allocation which took place during the technical meeting held on 30 and 31 October 1997 is plausible, so that that note forms part of the body of evidence that tends to demonstrate the existence of the second aspect of the infringement and the applicant’s participation therein.
As regards recital 147 to the contested decision, the Commission cites there, in the context of the technical meeting held in Budapest (Hungary) on 5 and 6 May 1998, a MOL note containing the following indications:
‘MOL - Eika max. 1500 to
Vollmar 2-3 000 to
L&G largest
Vollmar - Schümann 3-3,5 thousand tons
↑ MOL 2,0-3 thousand tons
demand 15000 to Total
Repsol’.
The Commission interpreted those indications as follows:
‘The note also shows that supply-sharing with regard to Vollmar, an important customer, was discussed. Schümann’s and MOL’s share was agreed while Total and Repsol were apparently also interested.’
In the applicant’s submission, no sharing of supplies to Vollmar is apparent from that note. That note indicates that Vollmar’s total demand represents 15000 tonnes, whereas the tonnages expressed are given in ranges ( (3000 to 3500 tonnes and 2000 to 3000 tonnes), so that when added the tonnages expressed do not come to 15000 tonnes. If any supply-sharing agreement had been reached, it would not only have been precise as to the tonnage allocated to each supplier, but the allocation would have covered that customer’s supply. Accordingly, the MOL notes refer not to planned supplies but rather to estimated supplies by each of the participants. In any event, no volume is indicated alongside Total France, so that there is no evidence of its participation.
The applicant’s arguments must be rejected and the Commission’s interpretation upheld. The MOL note, which, moreover, has very high probative value, as was concluded at paragraph 213 above, states that the participants in the cartel discussed Vollmar’s demand (15000 tonnes) in its entirety and allocated sales between Schümann (3000 to 3500 tonnes) and MOL (2000 to 3000 tonnes). There is also an indication that Repsol and Total contemplated selling to Vollmar. In addition, the first part of the note states that MOL informed the other participants of the volumes sold to Eika, Vollmar and Langhammer and Gasda (L&G). Last, the Sasol and Shell statements mention customer-allocation agreements, concerning in particular the allocation of volumes to be sold to Vollmar.
As regards the technical meeting held on 16 and 17 April 2003 (recital 170 to the contested decision), the Commission cited a Total handwritten note, containing the comment ‘Vollmar 13 kt HOS 2003 → 30 kt 22 kt SX50’. The Commission interpreted it as follows:
‘This shows that the supply of the customer Vollmar was discussed and that it was agreed that Sasol (at the time HOS) and Shell (who distributed paraffin under the trade mark of SX50) would share this supply.’
In the applicant’s submission, however, it would be impossible to find such an allocation of supply in those notes. The comments in that respect are ‘scattered’ over the note and it is impossible to make a connection between them. The Commission artificially associated the comment ‘Vollmar’ with comments relating to tonnages, in spite of the fact that the latter are clearly on different lines of the document.
Since the Shell and Sasol statements, made independently, both state that agreements on the allocation of volumes to be sold to customers were concluded, the Court considers that the Commission’s interpretation is correct and thus rejects the applicant’s arguments.
For the sake of completeness, it should be observed that the explanations supplied by the applicant, namely that there was no agreement, but only an exchange of information concerning the volumes to be sold to certain customers, cannot call into question the validity of the contested decision.
It should be borne in mind that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as the minutes of meetings, it will normally be only fragmentary and incomplete, so that it is frequently necessary to reconstitute certain details by inference. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (see paragraph 79 above).
Likewise, while it is necessarily incumbent upon the Commission to establish that an illegal market-sharing 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 (see paragraph 41 above).
The various manifestations of the infringement must be assessed in the overall context explaining the reason for their existence. It is a question of the evaluation of evidence, in which the probative value of various facts is corroborated or weakened by other facts, which, taken as a whole, may show that there has been a complex, single and continuous infringement (
Knauf Gips
v
Commission
, paragraph 184 above, paragraph 310, and
BPB
v
Commission,
paragraph 40 above, paragraph 250).
In the present case, the Commission’s assertions concerning the customer-allocation aspect of the complex, single and continuous infringement are based both on the concordant statements of the participants, coming thus within their own responsibility (and therefore particularly reliable), and on the fragments of notes taken during the technical meetings or directly after those meetings.
In fact, the applicant has failed to explain why, in the absence of any customer-allocation agreement, ExxonMobil, Shell and Sasol have independently admitted, and described in detail, such customer allocation.
The applicant claims, moreover, that the Commission cannot rely on the information concerning contacts between undertakings participating in the cartel, since it confined its investigation solely to the technical meetings.
In that regard, it is sufficient to recall that the evidence examined above relates to the technical meetings.
In the light of the foregoing, it must be concluded that the Commission’s finding concerning the practices aimed at customer allocation is based on a body of sufficient evidence and the Commission did not therefore infringe Article 81 EC in that respect.
The third part of the second plea must therefore be rejected.
Fourth part, concerning the competitive conduct of Total France
The applicant takes issue with the Commission for not having taken into account its competitive conduct, which was demonstrated by an economic study which the applicant supplied during the administrative procedure and by the statements of the other participants in the cartel.
In the first place, the applicant refers to an economic analysis of its pricing policy, by Member State and representative customer, for the main types of paraffin waxes sold between 2002 and 2005.
That economic study shows the absence of any significant correlation between Total France’s pricing policy and the technical meetings, on the one had, and between the changes in the prices of the various types of paraffin waxes, on the other. Those two factors confirm that the applicant did not participate in any price-fixing agreement. Likewise, it follows that the exchange of information on market conditions had no significant impact. However, the Commission put forward no reason in the contested decision to justify its failure to take that economic study into account.
As a preliminary point, it should be borne in mind that this Court has already had occasion to examine and reject such arguments. According to the case‑law, the fact that the undertakings actually announced the agreed price increases and that the prices so announced served as a basis for fixing individual transaction prices suffices in itself for a finding that the collusion on prices had both as its object and as its effect a serious restriction of competition (Case
T-308/94
Cascades
v
Commission
[1998] ECR II-925
, paragraph 94). In such a case, the Commission is not required to examine the details of the parties’ arguments seeking to establish that the agreements in question did not have the effect of increasing prices beyond those which would have been observed under normal conditions of competition and to respond point by point to those arguments (
Bolloré and Others
v
Commission
, paragraph 68 above, paragraph 451).
As is apparent from the examination of the first and second parts of the present plea, the Commission demonstrated to the requisite legal standard that the collusive practices in this case concerned price fixing and that the result of the meetings during which price increases had been discussed or fixed had often been implemented by cancelling prices to customers and announcing increases, just as the prices thus announced had served as a basis for fixing individual transaction prices. Likewise, where, having regard to market conditions, the participants in the cartel agreed to maintain prices, that must also be considered to form part of the implementation of the single, complex and continuous infringement in the present case.
The economic analysis submitted by the applicant is therefore irrelevant.
In the second place, 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 Court to exercise its power of review. The requirement to state reasons must be assessed by reference to the circumstances of the particular case. 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 the wording of the measure but also to the context in which the measure was adopted (Case
C-367/95 P
Commission
v
Sytraval and Brink’s France
[1998] ECR I-1719
, paragraph 63).
It follows that, as the economic study submitted by the applicant was irrelevant (see paragraphs 236 to 238 above), the Commission was not required to put forward reasons for its failure to take that study into account in the contested decision.
In the third place, in the applicant’s submission, its competitive conduct was acknowledged by its competitors during the administrative procedure. It is apparent from the documents relating to the technical meetings and the statements of the other parties that Total France developed a policy that prevented the agreements forming the subject-matter of the contested decision from producing their effects. Those statements indicate that Total France’s competitors repeatedly lost customers or had to reduce their prices on account of Total France’s conduct.
According to the case‑law, it is necessary to ascertain whether the circumstances which the applicant pleads are capable of showing that during the period in which it was a party to the unlawful practices it actually avoided applying them by adopting competitive conduct on the market (see, to that effect, Case
T-224/00
Archer Daniels Midland and Archer Daniels Midland Ingredients
v
Commission
[2003] ECR II-2597
, paragraph 268, and
Bolloré and Others
v
Commission
, paragraph 68 above, paragraph 625).
Furthermore, the fact that an undertaking which has been proved to have participated in collusion on prices with its competitors did not behave on the market in the manner agreed with its competitors is not necessarily a matter which must be taken into account as a mitigating circumstance when determining the amount of the fine to be imposed. An undertaking which despite colluding with its competitors follows a more or less independent policy on the market may simply be trying to exploit the cartel for its own benefit (
Cascades
v
Commission
, paragraph 236 above, paragraph 230, and Case
T-43/02
Jungbunzlauer
v
Commission
[2006] ECR II-3435
, paragraph 269).
First, it should be borne in mind (see paragraph 183 above) that it is apparent from Shell’s statement that when Sasol asked it to be the first to send a pricing letter indicating a price increase to customers, the applicant did not do so, but sent a ‘copy’ of a fictitious letter announcing price increases to its competitors. That shows only that the applicant did not comply with Sasol’s request to be the first to send out a pricing letter announcing a price increase. In addition, the applicant does not claim that it did not take account of the outcome of the meeting at issue in its subsequent negotiations with its customers.
Second, it is appropriate to examine the applicant’s argument that its competitors’ statements indicate that they repeatedly lost customers or had to reduce their prices on account of its conduct.
In that regard, it should be emphasised that the applicant refers to Shell’s oral statements of 14 November 2005, 14 June 2006 and 24 June 2005 and to Sasol’s reply of 18 December 2006 to a request for information from the Commission. In fact, those documents are not devoted to a description of the applicant’s conduct, still less to its competitive conduct, but contain several hundred pages of information on the functioning of the cartel in general, and the applicant does not specify, at least, the relevant passages that support its argument.
According to the case‑law, although specific points in the text of the application may be supported and supplemented by references to specific passages in the documents attached, a general reference to other documents, even those annexed to the application, cannot compensate for the lack of essential elements of legal arguments which must be included in the application. Furthermore, it is not for the Court to seek and identify, in the annexes, the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see Case
T-209/01
Honeywell
v
Commission
[2005] ECR II-5527
, paragraph 57 and the case‑law cited). Accordingly, the applicant’s argument is inadmissible in so far as it is based on the abovementioned documents.
In any event, it must be considered that those statements do not show any competitive conduct on the applicant’s part, but that it participated in the implementation of the cartel. Shell’s statement even shows that the applicant protested when its home market had been the target of sales by other participants.
The applicant refers, moreover, to a handwritten MOL note taken during the meeting held on 30 September 1994 and to Sasol’s reply of 20 December 2005 to a request for information from the Commission.
As regards the MOL note, it contains the following comment:
‘Mobil – 2000 t at the beginning of the year
price raise partially withdrawn because of Total.’
It should be observed that the Commission referred to that note at recital 133 to the contested decision. It interpreted the note as follows:
‘… the undertakings informed each other of planned price increases and took account of the situation of competitors when deciding on such increases. This is behaviour amounting to an agreement not to change prices, or at the very least, it can be considered a concerted practice’.
It should be observed that the applicant does not dispute that interpretation. Such conduct on the applicant’s part cannot be characterised as competitive, since it in any event participated in an anti-competitive discussion aimed at determining the price levels to be charged in the light of the market situation and the commercial situation of the participants.
As regards Sasol’s reply of December 2005 to a request for information from the Commission, the applicant refers to the reference to the meeting held on 7 and 8 September 1995. Sasol states that Total undercut Sasol’s price to one of Sasol’s traditional customers. According to Sasol, that constitutes a specific indication that the arrangements reached at the technical meetings were often ignored.
While it is true that that passage shows that there was a breach of a customer-sharing agreement, the fact none the less remains that the applicant has thus submitted only proof of an isolated incident, which, even when considered together with the cheating referred to at paragraph 244 above, does not prove the competitive nature of its conduct with respect to the complex, single and continuous infringement in the present case. Sporadic and isolated cases of cheating or failure to apply the cartel by a particular participant, especially where they concern a cartel of long duration, cannot in themselves demonstrate that that participant did not implement the cartel or adopted competitive conduct (see, to that effect, Case
T-73/04
Le Carbone Lorraine
v
Commission
[2008] ECR II-2661
, paragraph 204).
Third, it should be borne in mind (see paragraphs 187 and 188 above) that, according to the case‑law, where competitors participated in meetings during which they exchanged information relating, in particular, to the prices which they wished to be charged on the market, an undertaking, by its participation in a meeting having an anti-competitive object, had not only pursued the aim of eliminating in advance uncertainty about the future conduct of its competitors, but must necessarily have taken into account, directly or indirectly, the information obtained during those meetings in order to determine the policy which it meant to follow on the market. Subject to proof to the contrary, which the operators concerned must adduce, the presumption must be that the undertakings taking part in the concerted arrangements and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on that market. That is all the more the case where the undertakings concert together on a regular basis over a long period.
In the present case, the concerted arrangements concerning prices were regular and frequent and continued over a long period, as the Commission has information about more than 50 meetings between 1992 and 2005, most of which were held in the presence of the applicant’s representative. Accordingly, the applicant possessed a vast amount of information exchanged unlawfully with its competitors, which it was able to use when determining its commercial conduct. Conversely, the applicant mentions a single case, that of undercutting Sasol’s prices when it attempted to supply paraffin waxes to a traditional customer of Sasol, in breach of a customer-sharing agreement. Even during the technical meeting at which that incident was discussed (the meeting held on 7 and 8 September 1995), Mr S.E. of Total provided the other participants with commercially sensitive information, so that it cannot be concluded from that isolated case that Total engaged in competitive commercial conduct.
Fourth, it should be observed that the applicant itself declared, in the context of the implementation of the outcome of the technical meetings, that it did not often send letters announcing price increases to its customers, but generally announced its price increases orally during visits to its customers. Apart from the fact that it thus acknowledges that it increased its prices regularly, which in itself indicates that it applied prices agreed or discussed during the technical meetings, it should be observed that the Commission annexed to its defence 343 letters announcing price increases sent by Total to its customers. In addition, the Commission also produced certain letters announcing price increases which the applicant had sent to competitors in the context of mechanism to monitor the application of the cartel.
Fifth, it should be emphasised that the cartel in question was accompanied by many monitoring mechanisms. Apart from the exchanges of pricing letters, the participating undertakings stated that they were able to contact their competitors’ customers directly and thus discover the cheating. In the light of the long duration of the cartel, it is impossible to think that the other participants would have invited the applicant, over a period of 13 years, to technical meetings if it had systematically used the information which it received at those meetings in order to undercut its competitors’ prices and thus increase its sales volumes at their expense.
In the light of the foregoing, it must be held that the circumstances to which the applicant refers in the context of this part of the plea, even when assessed as a whole, do not permit the conclusion that, during the period when it adhered to the unlawful agreements, it did in fact fail to apply them and adopted competitive conduct on the market.
Accordingly, the Commission did not infringe Article 81 EC or breach its obligation to state reasons.
Consequently, the fourth part must be rejected, as, accordingly, must the second plea in its entirety.
2.
First plea, alleging infringement of Article 81 EC and breach of the obligation to state reasons with respect to the assessment relating to the slack wax part of the infringement
First part, alleging infringement of Article 81 EC as regards the finding that the practices relating to paraffin waxes, on the one hand, and those relating to slack wax, on the other, constituted a single and continuous infringement
As a preliminary point, it should be observed that, in the contested decision, the Commission imposed a penalty on the applicant for its participation in a complex, single and continuous infringement, which was characterised as complex because it consisted in agreements, concerted practices and exchanges of sensitive information; as single, because it related to both paraffin waxes and slack wax; and as continuous, because it was composed of a long series of anti-competitive meetings.
In the context of the present part of the plea, the applicant claims that the Commission infringed Article 81 EC in considering that the practices relating to paraffin waxes and those relating to slack wax constituted a single and continuous infringement.
According to the case‑law, an infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision (
Commission
v
Anic Partecipazioni
, paragraph 33 above, paragraph 81, and
Aalborg Portland and Others
v
Commission
, paragraph 47 above, paragraph 258).
The concept of ‘single infringement’ assumes conduct adopted by different parties that pursues the same anti-competitive aim (
Rhône-Poulenc
v
Commission
, paragraph 187 above, paragraphs 125 and 126, and
Cimenteries CBR and Others
v
Commission
, paragraph 44 above, paragraph 3699). The fact that the various actions of the undertakings form part of an ‘overall plan’, because their identical object distorts competition within the common market, is decisive for the finding of a single infringement (see, to that effect,
Aalborg Portland and Others
v
Commission
, paragraph 47 above, paragraphs 258 and 260).
In that regard, when determining whether there has been a single infringement and an overall plan, the Court may take into account the at least partial identity of the undertakings concerned and the fact that they are aware that they are participating in the common object of the unlawful conduct (
BPB
v
Commission
, paragraph 40 above, paragraph 257, and Case
T-446/05
Amann & Söhne and Cousin Filterie
v
Commission
[2010] ECR II-1255
, paragraph 89).
Likewise, for the purposes of characterising various unlawful actions as a single and continuous infringement, it is necessary to establish whether they display a link of complementarity in that each of them is intended to deal with one or more consequences of the normal pattern of competition and, through interaction, contribute to the attainment of the set of anti-competitive effects desired by those responsible, within the framework of a global plan having a single objective. In that regard, it will be necessary to take into account any circumstance capable of establishing or casting doubt on that link, such as the period of application, the content (including the methods used) and, correlatively, the objective of the various agreements and concerted practices in question (
Amann & Söhne and Cousin Filterie
v
Commission
, paragraph 266 above, paragraph 92; see also, to that effect, Joined Cases
T-101/05 and T-111/05
BASF and UCB
v
Commission
[2007] ECR II-4949
, paragraphs 179 to 181).
Conversely, the concept of a single objective cannot be determined by a general reference to the distortion of competition in the market concerned by the infringement, since an impact on competition, whether it is the object or the effect of the conduct in question, constitutes a consubstantial element of any conduct covered by Article 81(1) EC. Such a definition of the concept of a single objective would be likely to deprive the concept of a single and continuous infringement of part of its meaning, since it would have the consequence that different instances of conduct which relate to a particular economic sector and are prohibited under Article 81(1) EC would have to be systematically characterised as constituent elements of a single infringement (
Amann & Söhne and Cousin
v
Commission
, paragraph 266 above, paragraph 92).
In the present case, the Commission based its decision to treat the practices relating to paraffin waxes and slack wax as a single infringement on the following considerations:
‘…
(295)
Slack wax was at least twice the subject of technical meetings – at the meetings of 30 and 31 October 1997 and of 11 and 12 May 2004. The participants at the meeting dedicated to slack wax on 8 and 9 May 1999 were largely the same as those that usually represented their undertakings at the technical meetings. Slack wax and paraffin waxes are closely interlinked products: slack wax is the only raw material for paraffin waxes and it is produced and/or sold largely by those undertakings that also produce and/or sell paraffin waxes. The mechanism that was used and tested for paraffin waxes (namely, periodic meetings, discussions, and fixing of prices) was similarly applied to slack wax. At least some of the individuals that were involved in the infringement regarding paraffin waxes were also responsible for slack wax within their respective companies. Both the aspects relating to paraffin waxes and those relating to slack wax had the same overall economic aim, namely to control and determine the prices for both products, thereby shielding the undertakings from competition in order to ultimately stabilise or increase their profits at reduced competitive pressure, supplemented by increased transparency on the market.
(296)
The circumstances of this case, in particular the organisational and substantive links between the discussions on both products, are such that it would not be justified to [regard] the agreements and/or concerted practices regarding slack wax as a separate infringement.’
In the first place, the applicant claims that the Commission was not entitled to conclude that there had been a single infringement in the present case, since paraffin waxes and slack wax belong to distinct product markets.
It should be observed that, for the purposes of the case‑law cited at paragraphs 265 to 268 above, the fact that the anti-competitive practices relate to two separate product markets cannot prevent the Commission from concluding that there has been a single infringement, provided that the actions relating to various markets form part of an overall plan of which the participants are aware.
Admittedly, the applicant cites certain Commission decisions in which the Commission established separate infringements for products belonging to separate markets. In those cases, however, the markets in question were neighbouring markets, while in the present case the market for paraffin waxes and the market for slack wax are vertically linked, as slack wax is the raw material of paraffin waxes. In
Le Carbone Lorraine
v
Commission
(paragraph 254 above, paragraphs 64 and 65), this Court has already confirmed an analysis by the Commission characterising as a single infringement anti-competitive conduct relating to two separate markets that were none the less vertically linked, notably because the agreement concluded in respect of the raw materials was intended to reinforce the main agreement concerning the derived products.
The applicant’s argument must therefore be rejected.
In the second place, the applicant claims that, in the present case, the Commission has not shown that the links between paraffin waxes and slack wax revealed an overall unlawful plan.
In that regard, it should be observed that the Commission, in the contested decision, examined evidence relating to the impact of the discussions on slack wax on the functioning of the aspects of the cartel concerning paraffin waxes.
First, Shell’s statement of 14 June 2006, to which the Commission referred when examining the slack wax aspect of the infringement (footnote 557 to the contested decision), makes explicit reference to the link between the practices relating to slack wax and those concerning paraffin waxes. Shell stated that increases in the prices of paraffin waxes were justified to customers by the increase in the prices of slack wax, the only raw material. It added that customers would not have accepted those increases if they had known that the price of the raw material was stable. Thus, the artificial increases in the price of slack wax served to ensure the implementation of the increases in the prices of paraffin waxes, which had been agreed at the technical meetings.
Second, the Commission refers to a Sasol note concerning the technical meeting held on 3 and 4 November 1998 in a footnote accompanying recital 149 to the contested decision. According to the Sasol note:
‘[a] circular will be drafted with the reasoning “situation in raw material” (availability of amounts) with the goal
—
that prices that are below DEM 120 are increased
—
it is secured that prices do not decrease
—
candle makers get “documents” for their negotiations with [presumably store] chains’.
The Commission interpreted that note as follows, at recital 149 to the contested decision:
‘This shows that a price increase of DEM 6 for all customers, where the objective of DEM 120 had not yet been reached, was planned for 1 January 1999 (see also the table quoted in recital 145, indicating an agreement in October 1997 to fix certain minimum prices at DEM 120 which was thus still regarded as a valid benchmark at that meeting). Customers were to be told that scarcity of raw materials was the cause of the price increase. The individuals representing the companies agreed that in any event prices should not decrease.’
It should be stated that the Commission could properly conclude on the basis of the Sasol note that the participants in the cartel had decided to justify the increase in their prices for paraffin waxes by a shortage of slack wax. The reference to the ‘amounts’ and to the ‘availability’ of ‘raw materials’, which constituted the reason given to purchasers of paraffin waxes for the increase in prices, means essentially that the participants in the cartel intended to inform customers that that increase had become necessary because of the change in conditions characterising the market for slack wax, namely the emergence of a shortage of slack wax.
The applicant cannot validly claim that the Commission’s logic was flawed, since the issue was a shortage of slack wax and not a change in the price of slack wax. According to the normal functioning of the market, a reduction in supply, when all other factors remain unchanged, implies an increase in prices; yet the applicant does not mention any circumstance neutralising the effect of a shortage of slack wax on its price.
Accordingly, the evidence available to the Commission to which it referred in the contested decision shows that the participants in the cartel justified to their customers the increase or maintenance of the prices of paraffin waxes by the artificial increases in the prices of slack wax. There is therefore a link of complementarity between the main aspect of the infringement, concerning, in particular, the fixing of prices of paraffin waxes, and the slack wax aspect of the infringement.
In the third place, the applicant none the less claims that the practices relating to paraffin waxes extended to the EEA, while the practices relating to slack wax were limited to Germany. In its submission, the difference in the geographic extent of the practices means that the infringement is not a single infringement, which contradicts the Commission’s findings at recital 295 to the contested decision.
In that regard, it should be borne in mind that it is common ground between the parties that, as stated at recital 70 to the contested decision, the relevant geographic market for both paraffin waxes and slack wax is the EEA. Accordingly, according to the economic rules on the functioning of the market, the price increase in Germany should normally have as its effect an increase in the prices in the other Member States.
As observed at paragraph 278 above, moreover, the emergence of a shortage of slack wax would normally lead to an increase in price. Accordingly, the Commission was correct to find that the practices designed essentially to increase prices to German customers also served to ensure the success of the practices on the market for paraffin waxes, since the increase in the price of slack wax on the German market, which, moreover, is the largest market in the EEA, could render more credible in the eyes of purchasers of paraffin waxes the ‘justification’ for the high price based on the shortage of slack wax.
Thus, the Commission was correct to take the view that the practices relating to slack wax, entailing a price increase at least in Germany, made the practices relating to paraffin waxes more acceptable, in particular as it was in possession of evidence showing that the participants in the cartel had in fact intended to justify the increase in the price of paraffin waxes by a shortage of slack wax, the normal consequence of which is an increase in the price of slack wax.
In any event, it follows from
BASF and UCB
v
Commission
(paragraph 267 above, paragraphs 179 and 208) that the fact that practices relate to different territories does not in itself permit the conclusion that there are two separate infringements, as the decisive element is the existence of an overall plan.
The arguments which the applicant puts forward with respect to the difference in the relevant territories must therefore be rejected.
In the fourth place, the applicant disputes the assertion at recital 295 to the contested decision that ‘[t]he mechanism that was used and tested for paraffin waxes (namely, periodic meetings, discussions, and fixing of prices) was similarly applied to slack wax’. It claims that Shell’s oral statements mention the existence of two quite distinct practices and that the meetings dedicated to slack wax were much less frequent. There were only four ‘slack wax meetings’ between 30 October 1997 and 12 May 2004, while during the same period 29 technical meetings concerning paraffin waxes had taken place.
First of all, it should be observed that the Commission had evidence showing that the price of slack wax had been fixed at two technical meetings. The MOL note relating to the meeting held on 30 and 31 October 1997 refers to ‘slack wax DEM 550 → DEM 600’ and specifies the future dates of increases for each of the undertakings (recital 145 to the contested decision). Likewise, the Total France handwritten note relating to the meeting held on 11 and 12 May 2004 refers to ‘[EUR] 40/T … slack wax’ (recital 174 to the contested decision). It is apparent when those notes are read together that the participants in the cartel discussed and fixed the price of slack wax in the same way as they discussed and fixed the price of paraffin waxes.
In addition, according to Shell’s statement of 18 March 2005, the practices related to three groups of products, namely wholly refined waxes, hard waxes, mixtures of waxes and, indirectly, slack wax as a raw material.
Shell also asserted, in the same statement, that for the representatives of the market in paraffin waxes, it was clear that when the prices of those products were increased by a certain amount or percentage, a simultaneous increase would affect the price of the raw material, namely slack wax, corresponding to 30 to 40% of the increase in the price of paraffin waxes.
Next, in its statement of 26 October 2005, Shell explained the impact of the technical meeting held in Munich (Germany) on 27 and 28 February 2003, at which the participants in the cartel discussed only paraffin waxes, on the price of slack wax which it charged. According to Shell, even if the price of slack wax had not been discussed, its representative would have been able to infer from the arrangements relating to the price of paraffin waxes that the price of raw waxes would be increased by around EUR 35 per tonne.
It follows that the Shell statements, to which the applicant refers in order to demonstrate that the practices relating to paraffin waxes were distinct from those relating to raw waxes, do not support its argument. When it referred to the products concerned by those practices, Shell placed raw waxes among the various sub-categories of paraffin waxes (see paragraph 290 above). The mere fact that in Shell’s view the practices related to slack wax only indirectly does not call into question the fact that that infringement was a single infringement, as the participants were able to predict the increases in the price of raw waxes on the basis of the increases agreed for paraffin waxes at the technical meetings.
It is for that reason that the applicant’s observation that the meetings relating to slack wax were much less frequent than those relating to paraffin waxes cannot undermine the Commission’s assertion that the same mechanisms were used for both aspects of the infringement. Since the increases in the prices of paraffin waxes automatically entailed increases in the price of slack wax, to an extent that was foreseeable for the participants, it must be considered that, in order to achieve harmonised increases in the price of slack wax, it was not necessary to discuss and fix the price of slack wax on a regular basis.
The applicant’s arguments relating to the functioning of the two aspects of the infringement must therefore be rejected. It follows from the evidence available to the Court that they functioned in very similar ways.
In the fifth place, the applicant claims that the participants in the two parts of the infringement were not the same. It follows from
Jungbunzlauer
v
Commission
(paragraph 243 above, paragraph 312) and
Tokai Carbon and Others
v
Commission
(paragraph 184 above, paragraph 120) that whether or not the participants in the different practices under consideration were the same must be taken into account.
It should be observed that all the participants in the unlawful practices relating to slack wax, the undertakings Dea (later Shell, after it acquired Dea), ExxonMobil, Sasol and Total also took part in the practices relating to paraffin waxes (recital 2 to the contested decision). That situation is significantly different from the facts of
Tokai Carbon and Others
v
Commission
(paragraph 184 above) and
Jungbunzlauer
v
Commission
(paragraph 243 above), to which the applicant refers. In those cases the overlap between the undertakings participating in the practices relating to the different markets was rather limited.
Furthermore, it should be observed that MOL, Repsol and ENI did not sell slack wax to end-customers on the German market during the infringement period, apart from small amounts sold by Repsol in 1999 and 2000. Accordingly, their participation in the slack wax aspect of the infringement was already precluded owing to their commercial position.
Last, it should be borne in mind that the question of slack wax was also discussed at two technical meetings at which the representatives of MOL and ‘H&R/Tudapetrol’ were also present and at which the price of slack wax was fixed. Likewise, MOL was also present at the technical meeting held on 3 and 4 November 1998, where the participants agreed to justify the increase in the price of paraffin waxes by a shortage of slack wax. It follows that not only the undertakings found liable for the practices relating to slack wax (Shell, ExxonMobil, Sasol and the Total group) were aware of the practices relating to slack wax and of the links between the two product markets and the two aspects of the practices; others were also aware.
Accordingly, since all the undertakings participating in the slack wax aspect of the infringement also took part in the practices relating to paraffin waxes and since other participating undertakings were also aware of the practices relating to slack wax and of the complementarity of the two practices, the applicant’s arguments alleging the absence of identity of the participating undertakings must be rejected.
In the sixth place, the applicant submits that, according to the contested decision, the unicity of the infringement results from the fact that the practices relating to paraffin waxes and those relating to slack wax had the common objective of monitoring and fixing prices. The great majority of cartels have that objective in common, so that by applying such a criterion the Commission is able to artificially and arbitrarily transform separate infringements into a single infringement.
It must be stated that it follows from the foregoing analysis that there were close links between the two product markets and between the associated practices. In that regard, it is sufficient to recall that the undertakings concerned were able to predict with relative precision the increase in the price of slack wax, which followed the increases in the price of paraffin waxes agreed at the technical meetings. Likewise, the Commission adduced evidence that the participants in one technical meeting intended to justify the increase in the price of paraffin waxes by a shortage of slack wax. Last, at two meetings the participants discussed and fixed both the prices of paraffin waxes and the price of slack wax at the same time.
The Commission therefore had sufficient indicia and evidence to demonstrate that the practices relating to paraffin waxes and those relating to slack wax formed part of an overall plan of which the participants were aware.
Thus, the Commission was correct to consider that the slack wax aspect of the infringement and the main aspect of the infringement constituted a single infringement.
That conclusion cannot be called into question by the applicant’s other arguments.
In the first place, the applicant observes that the Commission attributed a separate period to each aspect of the infringement, from 1992 to 2005 for paraffin waxes and from 1997 to 2004 for slack wax. In addition, neither the starting point nor the end of the alleged practices coincided. In
Jungbunzlauer
v
Commission
(paragraph 243 above, paragraph 312), this Court took that factor into account in order to exclude the characterisation as a single infringement.
While it is true that in
Jungbunzlauer
v
Commission
, paragraph 243 above (paragraph 312), the Court took into account the difference in duration of the practices relating to two different products, the fact remains that that factor was not the determining element of its analysis. The Court emphasised the importance of the absence of an overall plan and also mentioned the very limited overlap between the participants in the two infringements. Furthermore, unlike the market for citric acid and the market for sodium gluconate examined in
Jungbunzlauer
v
Commission
, paragraph 243 above, markets which are not connected, the market for paraffin waxes and the market for slack wax are vertically linked, so that the undertakings concerned could even predict the extent of the increase in the price of slack wax on the basis of the increases agreed for paraffin waxes. Accordingly, the facts of the present case are significantly different from the facts of
Jungbunzlauer
v
Commission
, paragraph 243 above.
In addition, it should be observed that the settled case‑law set out at paragraphs 265 to 267 above does not indicate as a criterion of the unicity of the infringement the fact that the duration of the practices relating to the different products is the same. Conversely, that case‑law emphasises the presence of an overall plan of which the participants are aware, a criterion that is satisfied in the present case.
Accordingly, the argument which the applicant derives from the difference in the duration of the practices relating to paraffin waxes and slack wax must be rejected.
In the second place, in the applicant’s submission, the Commission was wrong to assert that the representatives of the undertakings that took part in the meeting held on 8 and 9 March 1999, which related specifically to slack wax, were the same as those who participated in the technical meetings, which generally related to paraffin waxes. So far as Total France is concerned, the participants in that meeting were not only different from those who participated in the technical meetings but were not even employed by Total France, but by Total Deutschland.
That argument cannot undermine the Commission’s analysis. The Commission was correct to conclude, at recital 295 to the contested decision, that ‘[t]he participants … were largely the same’, since the representatives of several other undertakings, such as Shell and Sasol, were actually the same at both types of meetings.
In any event, it should be borne in mind (see paragraph 265 above) that the deciding factor from the point of view of the establishment of the existence of a singe infringement is that the actions relating to various markets form part of a global plan of which the participants are aware. The fact that the question of slack wax was discussed at two technical meetings and that the participants even fixed the prices of slack wax at those technical meetings indicates that those responsible for paraffin waxes were indeed aware of the practices relating to slack wax. Likewise, the fact that at the technical meeting held on 3 and 4 November 1998 the participants wished to justify the increase in the price of paraffin waxes by a shortage on the market for slack wax shows that they were well aware of the complementarity of the practices relating to both products.
Accordingly, the argument which the applicant derives from the fact that its representative at the technical meetings was different from the representative at the meeting relating to slack wax held on 8 and 9 May 1999 is irrelevant.
In the light of all of the foregoing considerations, the Commission’s finding that the practices relating to paraffin waxes and those relating to slack wax constituted a single infringement must be upheld and, accordingly, the arguments which the applicant submits in the context of the first part of the first plea must be rejected.
It should be noted, moreover, that the arguments whereby the applicant calls into question the continuous nature of the infringement were put forward in the context of the second part of the present plea. Consequently, the Court will rule on those arguments at the end of its examination of the second part of the plea.
Second part, alleging infringement of Article 81 EC and breach of the obligation to state reasons as regards the characterisation of the practices relating to slack wax
The applicant maintains that the Commission did not have sufficient evidence to establish that the practices in restriction of competition relating to the sale of slack wax to end-customers in Germany had taken place during the technical meetings. Even on the assumption that the meetings held on 30 and 31 October 1997 and 11 and 12 May 2004 concerned a restrictive practice relating to the sale of slack wax of end-customers in Germany, those meetings constitute only two specific infringements (the first of which, moreover, is time barred) and cannot support the conclusion that there was a continuous infringement between 1997 and 2004. Thus, the Commission has infringed Article 81 EC and has breached its obligation to state reasons in that regard.
The contested decision
The Commission stated the following at recital 288 to the contested decision:
‘Both Sasol and Shell expressly concede that prices for slack wax were discussed between competitors, especially from the late 1990s, and have provided details of contacts with that objective (see also recital 112). At a meeting of 30 and 31 October 1997 (see recital 145) at least ENI, H&R/Tudapetrol, MOL, Repsol, Sasol, Dea (after 2002, Shell) and Total discussed slack wax and agreed to a price increase. Shell and Total are found to have been represented at least at one meeting specifically dedicated to a discussion on slack wax on 8 and 9 March 1999 (see recital 152). Sasol and ExxonMobil do not, in their reply to the [s]tatement of [o]bjections, exclude having been present at this meeting, and their presence indeed appears likely given that a handwritten note on a Shell-internal e-mail sent the following day refers to “all producers”. Sasol, Shell and Total were also represented at a technical meeting on 11 and 12 May 2004 (see recital 174) where a price for slack wax was agreed upon. In addition, the Commission observes that slack wax was a point of discussion during some technical meetings at which ExxonMobil, Sasol, Shell and Total were present. ExxonMobil has conceded that it participated in such talks between 1993 and 1996. ExxonMobil also concedes that Mr [T.H.], representing ExxonMobil, participated in discussions about slack wax for particle board producers in the German-speaking part of Europe between 1999 and 2001 and in general confirms that slack wax sold to end-customers was discussed as part of the cartel arrangements. Likewise, Total reports that discussions regarding an increase of prices for slack wax took place. Shell and ExxonMobil also confirm that meetings relating to slack wax were held outside the technical meetings. While ENI, H&R-Tudapetrol, MOL and Repsol were also represented at some of these meetings, the Commission considers that the available evidence is not sufficient to hold these undertakings liable for the infringement as far as it relates to slack wax. Moreover, although some pieces of evidence appear to relate to other periods and markets, the Commission considers that the available evidence only allows for the conclusion that the infringement related to slack wax sold to end-customers on the German market in the years 1997 to 2004.’
In addition, the Commission asserted the following at recital 112 to the contested decision:
‘Slack wax was mentioned at some technical meetings. [recitals 144, 145, 152, 157, 174 and 175 to the contested decision]. In addition, agreements relating to slack wax sold to end-customers on the German market were reached at least once outside the technical meetings when representatives of Shell, Sasol, ExxonMobil and Total, and perhaps others, met and further discussed slack wax, i.e. fixed prices and exchanged commercially sensitive information. For instance, there is evidence of one such meeting on 8 and 9 March 1999 in Düsseldorf. The individuals representing the companies at the specific meeting dedicated to slack wax were, for most of the companies, the same as at the technical meetings, except for Total.’
It should be observed that recitals 144, 145, 152, 157, 174 and 175 to the contested decision relate, respectively, to the meetings held on 19 and 20 June 1997, 30 and 31 October 1997, 8 and 9 March 1999, 3 and 4 February 2000, 11 and 12 May 2004 and 3 and 4 August 2004.
The Commission justified its decision to establish the existence of anti-competitive practices for slack wax only with respect to sales to end-customers in Germany as follows:
‘…
(289)
The Commission further considers that these discussions only concerned slack wax that was sold to end-customers (such as particle board producers) and not, for instance, producers of paraffin waxes. While the corporate statements mostly fail to distinguish between different uses of slack wax, the e-mail referred to in recital 152 [meeting held in Düsseldorf on 8 and 9 March 1998] only mentions slack wax sold to particle board producers. The Commission therefore considers that there exists doubt as to whether slack wax sold to customers other than end-customers was subject to the infringement and therefore limits its findings to slack wax sold to end-customers. These considerations are confirmed by Shell and ExxonMobil [Shell, file pp. 8122‑8123, 38846; Exxon, reply to the statement of objections, pp. 36‑48].
(290)
The available evidence suggests that the occasional discussions on slack wax focused principally on the German market. ExxonMobil, Sasol, Shell and Total all had sales on the German market and the meetings where slack wax was discussed took place in Germany. The Commission considers that there are not enough indications to support the conclusion that the arrangements regarding slack wax also related to slack wax sold to end-customers in other countries.
(291)
The Commission considers that the infringement, in so far as it relates to slack wax sold to end-customers on the German market, began with the meeting of 30 and 31 October 1997 and ended with the meeting of 11 and 12 May 2004.
(292)
The Commission therefore considers that the discussions on slack wax sold to end-customers on the German market led to agreements and/or concerted practices in the sense of Article 81 [EC] and Article 53 of the EEA Agreement. This finding is based on the independent and corroborating statements of Shell and Sasol which are supported by the statements of ExxonMobil and Total. The documentary evidence confirms this finding.’
Examination of the evidence relating to the anti-competitive meetings
In the present case, the applicant maintains that the Commission did not have sufficient evidence to establish that anti-competitive practices relating to the sale of slack wax to end-customers in Germany had taken place during the technical meetings.
In the first place, it should be borne in mind that Shell (see paragraphs 290 to 292 above) and ExxonMobil, in its statement of 14 June 2006, each stated that the anti-competitive practices had also concerned slack wax and that the discussions relating to that product had taken place at multilateral meetings between competitors. Shell even explained that the questions relating to slack wax were addressed at certain technical meetings and at certain meetings dedicated to slack wax. 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. Thus, within the meaning of the case‑law cited at paragraph 66 above, they are particularly reliable.
In the second place, it should be observed that those statements are corroborated by documentary evidence contemporaneous with the infringement. As the Commission stated at recital 215 to the contested decision, the MOL notes were prepared during the meetings by the individual who attended them and their content is structured and relatively detailed. The probative value of those notes is therefore very high, according to the case‑law cited at paragraph 80 above.
First, as regards the technical meeting held on 19 and 20 June 1997, at recital 144 to the contested decision the Commission relied on a MOL note containing the reference ‘Shell/NL selling slack wax for example to Bolsius’ and ‘slack wax: DEM 550’. The applicant does not comment on that note.
The Court finds that that note establishes the existence of discussions concerning slack wax and of an agreement fixing its price, as the Commission correctly observed when it referred to that technical meeting at recital 112 to the contested decision.
Second, as regards the meeting held on 30 and 31 October 1997, the Commission cited, at recital 145 to the contested decision, a MOL note containing the comment ‘slack wax: DEM 550 → 600’.
The applicant claims that it does not follow from that note that the participants reached an agreement concerning the sale of slack wax to end-customers in Germany. In its submission, the most coherent explanation is that the reference ‘slack wax: DEM 550 → 600’ related to the price of paraffin waxes.
That interpretation cannot be accepted, since it would be unreasonable for MOL’s representative to state ‘slack wax’ to refer to the price of paraffin waxes. In addition, according to the MOL note, the prices of paraffin waxes, depending on the type and the degree of refinement, were between DEM 950 and 1 350, so that it was not reasonable to think that the price of DEM 600 could correspond to the price of paraffin waxes. On the other hand, the reference to ‘slack wax: DEM 500 → 600’ is perfectly consistent with the content of the MOL note relating to the previous meeting, which had taken place on 19 and 20 June 1997, which indicates that the price agreed for slack wax was fixed at DEM 550.
The applicant none the less claims that it does not follow from the MOL note that the participants fixed the price of slack wax for the purposes of sales to German end-customers.
That argument is irrelevant, however, since price-fixing in general applies to all customers, including German end-customers. Furthermore, the Commission explained the reasons why it decided to limit the scope of the anti-competitive practices relating to slack wax to sales to German end-customers at recitals 289 to 292 to the contested decision, reproduced at paragraph 320 above. The applicant has submitted no argument in relation to those passages of the contested decision.
Accordingly, the Commission was correct to refer to that technical meeting and the evidence relating thereto at recital 112 to the contested decision in order to demonstrate the existence of the slack wax aspect of the infringement.
Third, at recital 152 to the contested decision, the Commission examined a meeting dedicated to slack wax, held on 8 and 9 March 1999, in the presence of at least the representatives of Shell, Total and ExxonMobil.
According to recital 152 to the contested decision, a handwritten Shell note contemporaneous to the infringement shows that its representative expected that the individuals representing the various undertakings would exchange information on supplies of slack wax to certain customers at the meeting held on 8 and 9 March 1999. That note contains the comment ‘8/9.3.99 PM – particle board’, ‘PM’ meaning, according to shell, ‘Paraffin Mafia’. On the day after that meeting, that representative sent an e-mail to his superior, stating that Shell intended to increase the prices of slack wax used in the particle board sector by 8 to 10% on 1 June 1999. A handwritten note relating to that e-mail stated: ‘All producers see the necessity to raise [prices]’.
The Commission inferred that the individuals representing the companies at the meeting had agreed to increase the prices of slack wax in the particle board sector and that Shell would implement that agreement from June 1999.
The Court considers that that interpretation is correct and is corroborated by the other evidence concerning the practices relating to slack wax and it must therefore be upheld.
The applicant claims, however, that the evidence relating to the meeting held on 8 and 9 March 1999 cannot underpin the Commission’s position, since that meeting was not a technical meeting. At recital 275 to the contested decision, the Commission excluded from its investigation all contacts outside the technical meetings.
At recital 275 to the contested decision, the Commission asserted the following:
‘[T]he Commission has chosen not to investigate bilateral contacts as this would have required disproportionate efforts to prove additional components of this infringement without any obvious effect of altering the final outcome. For the same reason, the Commission has chosen not to investigate other contacts that occurred outside the technical meetings. The Commission also considers that it has sufficiently established the existence of a single and continuous infringement for those practices it has investigated.’
In that regard, the Court considers that the Commission is under no obligation to use the terminology used by the members of the cartel to describe the various pieces of evidence. In particular, while it is true that a number of participants stated that at the technical meetings reference was made to the discussions on paraffin waxes and that, at other specific meetings, slack wax was referred to, the fact none the less remains that that distinction is not clear, as the discussions on slack wax also took place at technical meetings. In addition, the Commission did not visibly exclude from its investigations the specific meetings about slack wax, as it devoted a relatively voluminous analysis to the meeting held on 8 and 9 March 1999 at recital 152 to the contested decision, among the other multilateral anti-competitive meetings characterised as ‘technical meetings’.
In any event, the fact that the Commission chose, at a particular time during the administrative procedure, to focus its efforts on certain aspects of the unlawful practices and not to investigate others cannot deprive it of the possibility of using all the evidence at its disposal when adopting the contested decision, provided that the procedural guarantees have been observed.
The applicant does not claim that there has been any breach of its procedural rights as regards the use of the evidence relating to the meetings that were not ‘technical meetings’. In any event, the evidence relating to that meeting was already set out in the statement of objections and the applicant submitted observations in that regard in its reply to the statement of objections, dealt with by the Commission at recital 152 to the contested decision.
The ExxonMobil statement relating to that meeting reveals, moreover, that the meeting was ‘specifically about slack wax for particle board producers in the German-speaking part of Europe’ and supplemented elements that could have led the Commission to find that, as regards the slack wax aspect of the infringement, it had sufficient evidence only with respect to sales to German end-customers.
Fourth, as regards the meeting held on 3 and 4 February 2000, the Commission agrees with the applicant that there was no evidence relating to discussions concerning slack wax at that meeting and that there was an error consisting in the reference in recital 157 to the contested decision to a footnote inserted under recital 112.
Fifth, as regards the technical meeting held on 17 and 18 December 2002, the Commission cited, at recital 168 to the contested decision, contemporaneous annotations made by the representative of Total France on a table distributed at that technical meeting. The table and the annotations contain sensitive commercial information relating to paraffin waxes and to slack wax. Total France’s annotations contain the comment ‘[s]lack wax below EUR 500’.
The Commission concluded on that basis that the price of slack wax was the subject of discussions at that technical meeting.
The applicant contends that no agreement relating to the price of slack wax is apparent from those comments.
In that regard, it should be observed that the Commission did not assert that an agreement relating to the price of slack wax had been concluded at that meeting. Furthermore, the slack wax aspect of the infringement was complex, encompassing, like the main aspect of the infringement, agreements and concerted practices and also the exchange of commercially sensitive information about the price of slack wax.
Furthermore, the applicant’s interpretation, according to which the handwritten note was made during the meeting held on 28 February 2003, does not detract from the probative force of that note, since the note constitutes in any event evidence that discussions of an anti-competitive nature concerning slack wax had take place during 2002 or 2003.
Accordingly, the annotations in question form part of the body of evidence showing the existence of the slack wax aspect of the infringement.
Sixth, as regards the meeting held on 11 and 12 May 2004, the Commission examined, at recital 174 to the contested decision, a note seized at Total France’s premises, containing the following comments:
‘-> Sasol EUR 40/USD 50 – End of July.
-> We: 38–28.
-> 1 July –

+ FRP: 70 -> EUR/T 6 000

+ Tealight: 50 -> EUR/T 500

+ Microwax: 25 -> USD/T 50
…
-> EUR/T 40 Slack Wax.’
According to recital 174 to the contested decision:
‘… the last line of this document shows that a price increase for slack wax was also agreed upon. From the overall context of the note, it can be inferred that the arrow preceding the price figure points to an agreed strategy for the future, namely, an envisaged price increase’.
In the applicant’s submission, the real content of that document was that one of the participants (Sasol or another German producer) was stating its pricing objectives.
The Court considers that the applicant has not provided a plausible and coherent alternative interpretation that might call into question the Commission’s interpretation. It is apparent from the file that the notes reveal the name of the undertaking, its representative or, at least, the country of the seat of the undertaking in the case of a unilateral price proposal, which was not done in the case of the reference ‘EUR/T 40 Slack Wax’.
It must be concluded, therefore, that the Commission did not err when assessing the evidence relating to the meetings during which the question of slack wax was discussed.
It must be concluded that, on the basis of the corporate statements and the documentary evidence relating to the meetings at which the applicant was present and referred to at recitals 144, 145, 152, 168 and 174 to the contested decision, the Commission could properly establish the existence of anti-competitive practices consisting in agreements or concerted practices, and in the exchange of commercially sensitive information about the price of slack wax, and also the applicant’s participation in that aspect of the infringement.
The continuous nature of the slack wax aspect of the infringement
The applicant claims that the Commission has not demonstrated a continuous infringement relating to the sale of slack wax to German end-customers between 1997 and 2004. Even if the Court should find that the Commission’s evidence is sufficient with respect to the technical meetings held on 30 and 31 October 1997 and 11 and 12 May 2004, they were only two ad hoc meetings, the first of which, moreover, is time barred.
First, it should be observed that the applicant based its argument on the hypothesis that only two of those meetings, at most, could be regarded as also having been meetings at which the question of slack wax was addressed. As is apparent from the above examination, however, the Commission had documentary evidence showing the existence of such practices with respect to five meetings, held on 19 and 20 June 1997, 30 and 31 October 1997, 8 and 9 March 1999, 17 and 18 December 2002 (or, alternatively, 28 February 2003) and 11 and 12 May 2004.
Second, it is appropriate to recall the conclusion drawn at paragraph 314 above, namely that the Commission was correct to find that the practices relating to paraffin waxes and those relating to slack wax constituted a single infringement. Accordingly, the evidence relating to the practices concerning slack wax must be assessed in the context of all the evidence, relating to the single infringement, gathered by the Commission. That evidence shows the existence of continuous contacts between the undertakings that participated in the practices relating to slack wax.
Third, as is apparent from the Shell statement cited at paragraph 291 above, it was clear to the representatives of the paraffin wax industry that when the prices of those products were increased by a certain amount or percentage a similar increase would be applied to the prices of the raw material, namely slack wax, that is to say, an increase of 30 to 40% of the increase of the price of paraffin waxes. Accordingly, the anti-competitive discussions concerning paraffin waxes also affected the participants’ pricing policy in respect of slack wax, which further justifies the Commission’s finding that the slack wax aspect of the infringement was continuous in nature.
Accordingly, the Commission’s finding in the contested decision that the slack wax aspect formed part of a continuous infringement must be upheld and the arguments which the applicant has put forward in that regard must be rejected.
The limitation of the anti-competitive practices to Germany
The applicant maintains that the Commission did not justify, in the contested decision, the limitation of the scope of the slack wax aspect of the infringement to German end-customers.
In that regard, it must be accepted that, as the Commission acknowledges, the fact that it gave the benefit of the doubt to the undertakings concerned as regards the existence of wider practices than sales to end-customers in Germany cannot call into question the legality of the contested decision. The Commission must remain free to take into account, for the purposes of imposing fines, only the anti-competitive practices the existence of which is not in any doubt.
As observed at paragraph 329 above, moreover, the Commission explained at recitals 289 to 292 to the contested decision, reproduced at paragraph 320 above, the reasons why it considers that the anti-competitive practices relating to slack wax were limited to sales to German end-customers. The applicant has submitted no argument in respect of those passages of the contested decision.
Furthermore, the factors to which the Commission referred when examining the individual meetings (see paragraphs 323 to 352 above) are sufficient to support its position on the existence of the anti-competitive practices relating to slack wax, so that the applicant’s argument relating to the evidence referred to at recital 288 to the contested decision (see paragraph 317 above) is superfluous.
Accordingly, it must be concluded that, in the light of the evidence which it gathered, the Commission could properly establish the existence of the anti-competitive practices consisting in agreements or concerted practices and also in the exchange of commercially sensitive information relating to the price of slack wax, and also of the applicant’s participation in that aspect of the infringement (see paragraph 354 above). In addition, the Commission’s finding in the contested decision that the slack wax aspect formed part of a continuous infringement (see paragraph 359 above) must also be upheld.
Thus, the applicant’s complaint alleging infringement of Article 81 EC must be rejected.
Likewise, the Commission’s findings reproduced at paragraphs 317 to 320 above, and the documents to which they refer, reveal clearly and unequivocally the Commission’s reasoning relating to the slack wax aspect of the infringement, in such a way as to enable those concerned to ascertain the reasons in that regard and the competent Court to exercise its power of review, within the meaning of the case‑law cited at paragraph 239 above.
Thus, the applicant’s complaint alleging breach of the obligation to state reasons must also be rejected.
In the light of all the foregoing considerations, the second part of the first plea and, accordingly, the first plea in its entirety must be rejected.
3.
Third plea, alleging infringement of Article 81 EC and breach of the principles of the presumption of innocence, legal certainty and equal treatment with respect to the applicant’s participation in the infringement after 12 May 2004
First part, alleging infringement of Article 81 EC and breach of the principle of the presumption of innocence
As regards the duration of the infringement relating to paraffin waxes, the Commission considered that the Total group had participated in that infringement between 3 September 1992 and 28 April 2005 (12 years and 7 months). However, the applicant claims that its participation ended on 12 May 2004, the date of the last technical meeting in which it participated.
At recital 602 to the contested decision, the Commission asserted that:
‘Total states that it did not participate in any technical meetings after the meeting on 11 and 12 May 2004 and that its representative cancelled his journey for the meeting of 3 and 4 November 2004, internally communicating that he did so because of advice from his superior. The Commission notes that there is no evidence of any withdrawal from the cartel. In cases of complex infringements, the fact that an undertaking is not present in a meeting, or does not agree what is discussed in a meeting, does not mean that the undertaking has stopped its participation in an on-going infringement. In order to terminate the infringement, the undertaking must clearly distance itself from the cartel. … Total has not put forward clear evidence that it adopted a fully autonomous and unilateral strategy on the market nor that it clearly and openly distanced itself from the activities of the cartel. On the contrary, evidence in the Commission’s possession shows that Total received formal invitations to all three of the subsequent technical meetings (namely, the last three technical meetings before the inspections were carried out). The Commission observes that Total’s representative confirmed that he would attend the meeting of 3 [and] 4 November 2004 although he appears to have cancelled his journey later. Also for the 23 and 24 February 2005 meeting, a room was already booked by Sasol for Total’s representative at the hotel where the meeting took place[,] which seems to have been cancelled later. The Commission therefore concludes that for Sasol and the other participants, it was clear that Total had been a member of the cartel until the end. The Commission also observes that the discussions in the meetings were not fundamentally different from the previous meetings but that the participants continued to discuss price increases without mentioning any move by Total to leave the cartel (see recitals 175, 176 and 177) and that it was not unusual during the cartel that companies did not attend some meetings. Both of these factors show that Total was not perceived as having dropped out of the cartel after the meeting of May 2004. The internal communication of Total’s representative as to his reasons for not attending a meeting cannot, in any event, be seen as public distancing. As there is nothing else to suggest that Total distanced itself from the cartel, the Commission considers that Total’s involvement in the cartel did not end prior to the inspections.’
In the first place, the applicant claims that, according to the case‑law, the Commission could properly require a public distancing in order to find that the participation had come to an end. As the applicant had not continued to participate in the anti-competitive discussions, the Commission was required, in the absence of direct evidence, to put forward at least some positive indicia of the undertaking’s continuing participation in the cartel.
In that regard, it should be observed that, according to
Amann & Söhne and Cousin Filterie
v
Commission
(paragraph 266 above, paragraph 241), the only way in which it can be concluded that an undertaking has definitively ceased to belong to a cartel is if it has publicly distanced itself from the content of the cartel.
In addition, the Court of Justice has held that it is indeed the understanding which the other participants in a cartel have of the undertaking concerned that is of critical importance when assessing whether that undertaking had sought to distance itself from the unlawful agreement (Case
C-510/06 P
Archer Daniels Midland
v
Commission
[2009] ECR I-1843
, paragraph 120).
Accordingly, the Commission was correct to assert in the contested decision that the participants in the cartel were required to distance themselves publicly from the content of the cartel in order to put an end to their participation therein and it did not infringe Article 81 EC or breach the principle of the presumption of innocence.
In the second place, it should be observed that the applicant did not publicly distance itself from the cartel in the eyes of the other participants.
First, that is shown by the facts set out at recital 602 to the contested decision, not disputed by the applicant, namely that ‘Total’s representative [had] confirmed that he would attend the meeting of 3/4 November 2004 although he appears to have cancelled his journey later’. Likewise, ‘for the 23 and 24 February 2005 meeting a room [had] already [been] booked by Sasol for Total’s representative at the hotel where the meeting [had taken] place[,] which appears to have been cancelled later’. It is clear that, if the participants in the cartel had not considered that Total was still participating after the meeting held on 11 and 12 May 2004, Sasol, the organiser of the technical meetings, would not have invited it to the subsequent meetings and would not have reserved a room for its representative.
Second, the applicant’s reference to the e-mail of 3 November 2004, sent by Total’s representative at the technical meetings to another Total employee, cannot prove that the applicant publicly distanced itself from the cartel.
That e-mail reads as follows:
‘In view of the objective of the meeting in Austria, I am going along with Thibault’s recommendation. I am cancelling my trip to Vienna (departure initially scheduled for this afternoon).’
In that regard, it is sufficient to note that an internal e-mail, not communicated to the other participants, cannot constitute public distancing.
For the sake of completeness, it should be observed that the mere fact that the applicant did not participate in the last technical meetings does not demonstrate that it did not use the information on prices charged by its competitors which it received at the tens of earlier technical meetings which it attended, and that it did not take advantage of the market-sharing and customer-sharing agreements put in place at the earlier technical meetings. The applicant has therefore adduced no evidence showing that it had ceased to implement the cartel on 12 May 2004.
Consequently, the first part of this plea must be rejected.
Second part, alleging breach of the principle of equal treatment
In the applicant’s submission, it follows from recital 604 to the contested decision that Repsol was, overall, in the same situation as the applicant as regards the duration of their participation in the infringement. Both effectively ceased to participate in the meetings before the date of the inspections. Next, at no time did Repsol publicly distance itself from the cartel. Last, as in Total’s case, the Commission stated that Repsol had actually been invited to the technical meetings arranged for after September 2003, until the inspections were carried out. The only difference is that, in its analysis of the invitation sent by Sasol on 25 October 2004 for the meeting to be held in November 2004, in order to establish which undertakings would attend, the Commission listed the addressees of that e-mail, with the exception of Repsol’s representative. However, his name appeared in all letters between the addressees.
In spite of the identical situations of Repsol and Total France, the Commission fixed the end of participation in the infringement for Repsol at 4 August 2004. The Commission therefore did not apply the same criteria when determining the duration of Repsol’s and Total France’s participation and applied a much stricter ‘standard of proof’ to Total France.
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).
It follows from recital 604 to the contested decision, the facts of which are not disputed by the applicant, that even for the period following the meeting held on 24 and 25 September 2003, the last meeting in which Repsol participated, the Commission concluded that it had participated in the cartel, since it had received official invitations from Sasol, containing the agenda, for the meetings held on 14 and 15 January 2004 and 11 and 12 May 2004. That was also the case for Total, as regards the meetings held between 11 and 12 May 2004 and the end of the cartel. Thus, the Commission treated the two comparable situations in the same way, in finding that Repsol and Total had participated in the cartel during the periods when they continued to receive official invitations containing the agenda.
On the other hand, the Commission considered that Repsol’s participation had ended on 4 August 2004, since for that meeting Repsol had no longer received an official invitation containing the agenda, which, according to the contested decision, shows that Sasol had doubts as to Repsol’s continuing participation in the cartel.
It must be confirmed that the fact that the official invitations to meetings, containing the agenda, ceased to be sent to Repsol shows that Sasol, which organised the meetings, changed its view and that it was not longer sure of Repsol’s participation in the cartel after 4 August 2004. That is sufficient to support the view that Repsol distanced itself from the cartel in the eyes of the other participants in the cartel, within the meaning of the case‑law set out at 373 above.
Conversely, that did not apply in the applicant’s case, as it continued to receive official invitations to meetings, containing the agenda. Hotel rooms were even reserved for its representative, including for the last technical meeting. Accordingly, the applicant cannot be regarded as having distanced itself from the cartel in the eyes of the other participants.
Thus, as regards the period after 4 August 2004, in Repsol’s case, and the period between 12 May 2004 and the end of the cartel, in Total’s case, the Commission treated differently two situations that were different, according to the relevant criterion for the determination of the duration of participation in the infringement.
It follows that the Commission did not breach the principle of equal treatment when determining the end of Total’s and Repsol’s participation in the cartel.
Accordingly, the second part and, therefore, the third plea in its entirety must be rejected.
4.
Fourth plea, alleging infringement of Article 81 EC and breach of the principle of the presumption of innocence as regards the alleged interruption of the applicant’s participation in the cartel
The applicant takes issue with the fact that, at recital 603 to the contested decision, the Commission refused to accept that its participation in the alleged infringement was interrupted between the meeting held on 25 and 26 May 2000 and the meeting held on 26 and 27 June 2001, even though it did not participate in the meetings held during that period. The applicant claims that, in so doing, the Commission infringed Article 81 EC and breached the principle of the presumption of innocence.
At recital 603 to the contested decision, the Commission asserted that:
‘Total France S.A. claims that it interrupted its participation between 2000 and 2001 and that the fact that its representative left the meeting in anger was a sign of distancing. The Commission observes, as is demonstrated in section 4.2[,] that Total participated in the technical meeting of 18 and 19 September 2000 and again in the meeting of 26 and 27 June 2001, thus missing three meetings during nine months. The Commission also observes that there is nothing to suggest that Total has publicly distanced itself from the cartel. The fact that [Mr S.E.] left the meeting does not, as such, constitute a public distancing considering that even Total does not argue that [Mr S.E.] announced an intention to stop Total’s participation in the cartel. Rather, [Mr S.E.]’s anger shows that he was not satisfied with the agreement reached. Total’s reappearance after less than a year confirms that it had no intention to stop its involvement. The Commission does not, therefore, [regard] Total’s short temporary absence as constituting an interruption of its involvement in the cartel.’
In the first place, the applicant claims that the Commission was wrong to conclude that the interruption of its participation in the meetings had lasted only nine months. The Commission considered that Total France had ceased to participate in the meetings with effect from a technical meeting held in September 2000. That constitutes an error of fact, since there is no trace, either in the description of the meetings in section 4.2, or in the table of meetings attached to the contested decision, of a meeting held between 18 and 19 September 2000.
It should be observed that, as the Commission acknowledged during the procedure before the Court, no meeting was held in September 2000, so that the applicant’s complaint is well founded.
In the second place, it is appropriate to consider whether the Commission could properly conclude that the applicant’s participation in the cartel had not been interrupted, in spite of the fact that it had not participated in any of the three meetings held between 26 May 2000 and 26 June 2001 and that its representative had left the meeting held on 25 and 26 May 2000 early, disagreeing with at least some aspects of the discussion held at that meeting.
The applicant claims that the interruption of its participation in the meetings was not fortuitous. It was the direct and lasting consequence of the break between Mr S.E., the representative of Total France, and the other participants during the meeting held on 25 and 26 May 2000. Mr S.E. left the meeting abruptly because he was asked to honour a commitment which he had never given.
It should be borne in mind that the incident to which the applicant refers, which occurred at the meeting held on 25 and 26 May 2000, is described in the Shell statement of 24 November 2005. According to that statement, based on the account of Shell’s representative at the technical meetings, who had directly attended that event, the participants discussed the prices charged to a German customer. Total was accused of having sold at too low a price, which Mr S.E. denied. However, another participant disputed what he said, producing a copy of the offer which Total had sent to that customer. Mr S.E. became ‘so angry’ that he left the meeting. After that incident, Mr S.E. no longer participated in the technical meetings. It was only after Mr C.O. was recruited by Total that Total began to participate in the technical meetings again.
In that regard, it must be borne in mind that the applicant participated in a complex, single and continuous infringement, consisting in collusive activities concerning price-fixing, customer-sharing or market-sharing and also in disclosing and exchanging commercially sensitive information, in particular about customers, pricing, production capacities and sales volumes.
The incident to which the applicant refers concerns only an isolated element of the infringement, namely the price charged to a particular customer. In addition, it must be stated that, after the technical meeting held on 26 and 27 June 2001, the applicant began to attend the technical meetings regularly again, being present at each of the following 11 technical meetings, until the one held on 11 and 12 May 2004.
Likewise, while it is true that Mr S.E.’s isolated conduct shows that Total occasionally breached the cartel arrangements, the applicant has submitted no evidence that Mr S.E. left the technical meeting giving the other participants clearly to understand that Total would henceforth adopt competitive conduct on the market. Likewise, it is apparent from the Shell statement that Mr S.E. did not leave the meeting because of its general anti-competitive content, but did so because one of the participants had produced a document challenging the truth of his claims, that is to say, because of what was, rather, a conflict of a personal nature.
Thus, the incident to which the applicant refers does not show that Total’s representative distanced himself from the single, complex and continuous infringement in the present case, in the eyes of the other participants (see paragraphs 372 and 373 above).
In addition, the mere fact that the applicant did not participate in the three meetings held between 26 May 2000 and 26 June 2001 does not show that it did not use the information about the prices charged by its competitors which it received during the tens of earlier technical meetings, which it attended, and that it did not take advantage of the market- and customer-sharing agreements put in place during the earlier technical meetings. Accordingly, the applicant has adduced no evidence that its participation had been interrupted during the period in question.
In the light of the foregoing, the Commission did not infringe Article 81 EC and did not breach the principle of the presumption of innocence in that regard. Consequently, the fourth plea must be rejected.
5.
Fifth plea, alleging breach of the obligation to state reasons and the obligation laid down in the 2006 Guidelines as regards the failure to implement the alleged practices
The applicant claims that the Commission erred in not taking the fact that it had not participated in the implementation of the cartel into account as a mitigating circumstance under point 29 of the 2006 Guidelines.
As a preliminary point, it should be borne in mind that, under the heading ‘Mitigating Circumstances’, at recital 696 to the contested decision the Commission stated that:
‘A number of undertakings claim that they have not implemented the arrangements and point to the limited amount of pricing letters they sent or received. Several undertakings claim that their conduct on the market was not influenced by the arrangements. The Commission does not, firstly, consider such mere assertions to be sufficient evidence for non-implementation in the sense of the 2006 Guidelines on Fines. The Commission, secondly, observes that the sending or receiving of pricing letters was not the only means of implementation but that implementation mainly occurred through the regular (attempts of) price increases all undertakings communicated to the market, sometimes documented in the evidence of the technical meetings.’
As the Court concluded after examining the second and fourth parts of the second plea, the Commission’s assertions concerning the implementation of the cartel by the applicant are supported by sufficient evidence.
Thus, the present plea is factually incorrect and must therefore be rejected.
6.
Sixth plea, relating to the determination of the reference period for the evaluation of the basic amount of the fine
The applicant maintains that the Commission breached the 2006 Guidelines, the principle of legal certainty and the principle of equal treatment in using the value of sales during the last three business years in the period of its participation in the alleged infringement, that is to say, the period from 2002 to 2004 for paraffin waxes and the period from 2001 to 2003 for slack wax. In order to observe those principles, the Commission ought to have used the value of sales in 2004 for paraffin waxes and the value of sales in 2003 for slack wax. In any event, the Commission did not provide appropriate reasoning in that regard.
Point 13 of the 2006 Guidelines provides as follows:
‘In determining the basic amount of the fine to be imposed, the Commission will 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. It will normally take the sales made by the undertaking during the last full business year of its participation in the infringement (hereafter “value of sales”).’
At recital 634 to the contested decision, the Commission stated the following:
‘The Commission acknowledges that the year 2004 was, due to the enlargement of the European Union in May, an exceptional year. The Commission considers it appropriate not to use the value of sales in the year 2004 as the only basis for the calculation of the fine but to use the value of sales in the last three business years of the entity’s involvement in the infringement.’
In the first place, as regards the alleged breach of the principle of legal certainty, it should be observed at the outset that it is apparent from the actual wording of the 2006 Guidelines, which state that the Commission must ‘normally’ take into account the sales made by the undertaking during the last full business year of its participation in the infringement, that the Commission is not obliged to take into account systematically the value of sales in the last year of the undertaking’s participation. Furthermore, the applicant relies on no other rule of law under which the Commission would be required to take into account the turnover for the last full year of an undertaking’s participation in the infringement.
The complaint alleging breach of the principle of legal certainty must therefore be rejected.
In the second place, according to the case‑law, to the extent to which the Commission must rely on the turnover of the undertakings involved in the same infringement for the purpose of determining the proportions between the fines to be imposed, the period to be taken into consideration must be ascertained in such a way that the resulting turnovers are as comparable as possible. Consequently, an individual undertaking cannot compel the Commission to rely, in its case, upon a period different from that used for the other undertakings, unless it proves that, for reasons peculiar to it, its turnover in the latter period does not reflect its true size and economic power or the scale of the infringement which it committed (Case
T-319/94
Fiskeby Board
v
Commission
[1998] ECR II-1331
, paragraph 42).
In the present case, the Commission correctly considered that 2004 was an exceptional year for the industry concerned, owing to the enlargement of the Union and the accession of 10 new Member States, in particular because Hungary was the seat and the place of production of MOL, one of the participants in the cartel.
Accordingly, the Commission did not breach the 2006 Guidelines and did not make an error of assessment in taking into account the average of the values of sales during the period 2002 to 2004 on the paraffin waxes market in the same way for all the undertakings that had participated in the cartel until it ended. Likewise, as the Commission used the average of the last three business years of the participation of each of the undertakings involved in the cartel in respect of paraffin waxes, it could properly apply the same method to slack wax as well, in order to use the most comparable data possible.
In the third place, the applicant claims that the Commission breached the principle of equal treatment. Even on the assumption that 2004 was an exceptional year for certain participants in the cartel, owing to the enlargement of the Union, that was definitely not the case for Total France. The Commission therefore treated undertakings in different situations in the same way.
In that regard, it should be borne in mind that, in accordance with the case‑law cited at paragraph 384 above, 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 treatment is objectively justified.
However, even on the assumption that the applicant could validly claim that different situations (that of Total by comparison with that of MOL) were treated in the same way, that treatment was objectively justified, owing to the exceptional nature of 2004 and its implications for the sector concerned, in particular the addition of MOL’s production to the industry in the EEA. Likewise, such objective justification is the consequence of the fact that the Commission is required to define the period to be taken into consideration in such a way that the figures obtained are as comparable as possible, which generally precludes, for the undertakings participating in the cartel until the same date, different periods being used for the purposes of calculating the value of sales.
In the fourth place, as regards the alleged insufficiency of the reasons stated, the Court considers that, in relying on the enlargement of the Union in 2004 at recital 634 to the contested decision and in describing in detail in the contested decision the situation of MOL and its role in the cartel, the Commission supplied sufficient reasons for its decision to take into consideration the last three business years of the entity’s participation in the infringement for the purposes of calculating the value of sales.
The Court considers, moreover, that the Commission was correct to choose the average of the value of sales during the last three full business years of each participant’s participation in the infringement and thus upholds the contested decision as regards that element of the calculation of the amount of the fine.
Having regard to the foregoing, the sixth plea must be rejected.
7.
Seventh plea, alleging breach of the 2006 Guidelines and of the principle of proportionality owing to the fact that the Commission took too high a level of the value of sales into account for the slack wax aspect of the infringement
The applicant maintains that the Commission breached point 20 of the 2006 Guidelines and the principle of proportionality in taking into consideration, for the purposes of setting the fine, 15% of the value of sales of slack wax and only 18% of the value of sales of paraffin waxes when determining the gravity of the infringement.
It observes that, unlike paraffin waxes, no infringement relating to market allocation or customer sharing was found by the Commission in the case of slack wax. It necessarily follows that the level of the gravity of the alleged practices relating to slack wax was much lower than that for paraffin waxes. Likewise, in geographic terms, the slack wax aspect of the infringement was limited to German territory, whereas the practices relating to paraffin waxes extended, according to the Commission, to the entire territory of the EEA.
Those differences in gravity between the aspects of the infringement relating to paraffin waxes and the slack wax aspect of the infringement justified a greater difference than three percentage points between the two coefficients applied to reflect gravity. Accordingly, the applicant asks the Court to reduce significantly the proportion of the value of sales taken into consideration for slack wax and to recalculate the amount of the fine on that new basis.
According to point 20 of the 2006 Guidelines, the assessment of gravity is to be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case. According to point 21, the proportion of the value of sales taken into account is generally to be set at a level of up to 30% of the value of sales. Point 22 provides that, in order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission is to have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented. According to point 23, horizontal price-fixing, market-sharing and output-limitation agreements, which are usually secret, are, by their very nature, among the most serious restrictions on competition, with the result that the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale provided for in point 21.
In the contested decision, under the heading ‘Conclusions on Gravity’, the Commission considered that:
‘…
(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 proportion of the value of sales to be taken into account for ENI and H&R/Tudapetrol [which participated in only the main aspect of the infringement] should be 17%. It has been established that for ExxonMobil, MOL, Repsol, RWE, Sasol, Shell and Total the single and continuous infringement in addition consisted of customer an/or market allocation [the second aspect of the infringement]. Market and customer allocation are by their vary 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 proportion of the value of sales to be taken into account for ExxonMobil, MOL, Repsol, RWE, Sasol, Shell and Total should be 18%. As there is no evidence that the customer and/or market allocation also related to slack wax and as the geographic scope of the infringement related to slack wax was limited to Germany, the proportion of the value of ExxonMobil’s, Sasol’s, Shell’s, RWE’s and Total’s sales of slack wax should be 15%.’
In the first place, as regards the complaint that the percentage of the value of sales taken into consideration for the slack wax aspect of the infringement was too high, it must be stated that, as is apparent from recital 288 to the contested decision (see paragraph 317 above), that aspect of the infringement consisted, inter alia, in collusive activities concerning price-fixing between competitors. According to the 2006 Guidelines, that type of infringement is by its very nature among the most serious restrictions of competition and must be severely penalised, so that the proportion of sales taken into account for such infringements will generally be set at the higher end of the scale referred to in point 21 of the 2006 Guidelines.
The Commission thus did not breach the 2006 Guidelines or make an error of assessment when it took into consideration 15%, on a scale of up to 30 percentage points, of the value of sales of slack wax of the undertakings concerned for the purposes of calculating the basic amount of the fines.
In the second case, it is appropriate to examine the applicant’s complaint that, in taking into account 15% of the value of sales for gravity for the slack wax aspect of the infringement and 18% for the aspect of the infringement relating to paraffin waxes, the Commission failed to have regard to the principle of proportionality.
According to the case‑law, the principle of proportionality requires that measures adopted by Community institutions should not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Case
C-331/88
Fedesa and Others
[1990] ECR I-4023
, paragraph 13; Case
C-180/96
United Kingdom
v
Commission
[1998] ECR I-2265
, paragraph 96; and judgment of 12 September 2007 in Case T‑30/05
Prym and Prym Consumer
v
Commission
, not published in the ECR, paragraph 223).
In the procedures initiated by the Commission in order to penalise infringements of the competition rules, the application of that principle requires that fines must not be disproportionate to the objectives pursued, that is to say, by reference to compliance with those rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters must be proportionate to the infringement, seen as a whole, having regard, in particular, to the gravity and duration thereof (see, to that effect,
Prym and Prym Consumer
v
Commission
, paragraph 431 above, paragraphs 223 and 224 and the case‑law cited). 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 243 above, paragraphs 226 to 228, and
Amann & Söhne and Cousin Filterie
v
Commission
, paragraph 266 above, paragraph 171).
First of all, the Court finds that, in view of the fact that the slack wax aspect of the infringement consisted, inter alia, in collusive activities concerning price-fixing between competitors, the coefficient of 15% of the value of sales taken into account to reflect the gravity of the infringement was proportionate in relation to the gravity of that aspect of the infringement.
Accordingly, the arguments whereby the applicant emphasises the differences between the aspects of the infringement relating to paraffin waxes and the aspect relating to slack wax are ineffective, since they could at most induce the Court to increase the proportion of the value of sales of paraffin waxes taken into account beyond 18% if it were to recalculate the amount of the fine.
For the sake of completeness, it should be observed that the difference between the gravity of the two aspects of the infringement should be placed in context, taking into account the fact that, first, the German market is the largest market within the EEA and, second, market allocation and customer allocation are generally intended to support practices relating to price-fixing or price increases. The allocation of markets and customers reduces customers’ choice between suppliers, which generally enables the supplier to which the market or customer has been allocated to negotiate higher prices than in normal market conditions. In addition, the proportionality of the amount of the fine by comparison with the more limited territorial extent of the slack wax aspect of the infringement is also ensured by the fact that, in the calculation, only the value of sales made in Germany was taken into account, while for the aspects of the infringement relating to paraffin waxes, the value of sales was calculated on the basis of sales made throughout the EEA.
Therefore, the complaint alleging breach of the principle of proportionality and, accordingly, the seventh plea in its entirety must be rejected.
8.
Ninth plea, alleging illegality of the additional amount included in the basic amount of the fine for deterrence
The applicant takes issue with the fact that, in the contested decision, the Commission decided to include in the basic amount of the fine an additional amount of 18% in the case of paraffin waxes and 15% in the case of slack wax (recital 658 to 661 to the contested decision), with the aim of deterring it from participating in other horizontal agreements of the same nature. The applicant maintains that the Commission breached the principle that penalties must be specific to the offender and the principle of proportionality, and also the 2006 Guidelines.
As a preliminary point, it should be recalled that point 25 of the 2006 Guidelines, which makes provision for the inclusion of an additional amount, known as the ‘entry fee’, in the basic amount of the fine, provides as follows:
‘In addition, irrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the basic amount a sum of between 15% and 25% of the value of sales … in order to deter undertakings from even entering into horizontal price-fixing, market-sharing and output-limitation agreements. … For the purpose of deciding the proportion of the value of sales to be considered in a given case, the Commission will have regard to a number of factors, in particular those referred [to] in point 22 [the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented]’.
In the present case, the Commission fixed the percentage of the value of sales to be included in the basic amount for deterrence at the same level as that applied to reflect the gravity of the infringement (see recital 653 to the contested decision, cited at paragraph 427 above), and on the basis of the same reasoning:
‘...
(660)
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 to be applied for the additional amount for ENI and H&R/Tudapetrol should be 17%.
(661)
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 vary 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 to be applied for the additional amount for ExxonMobil, MOL, Repsol, RWE, Sasol, Shell and Total should be 18%. As there is no evidence that the customer and/or market allocation also related to slack wax and as the geographic scope of the infringement related to slack wax was limited to Germany, the proportion of the value [of] ExxonMobil’s, Sasol’s, Shell’s, RWE’s and Total’s sales of slack wax should be 15%’.
In the first place, the applicant claims that the Commission breached the 2006 Guidelines.
In that regard, it should be pointed out that, under point 25 of the 2006 Guidelines, the Commission must ‘include in the basic amount a sum of between 15% and 25% of the value of sales … in order to deter undertakings from even entering into horizontal price-fixing [and/or] market-sharing … agreements’.
The Commission referred at recital 661 to the contested decision to an agreement on price-fixing and market allocation (the concerted practice being included in the concept of agreement according to the 2006 Guidelines). Thus, the inclusion in the basic amount of an additional amount in application of point 25 of the 2006 Guidelines was justified.
In addition, the Commission applied a rate of 18% of the value of sales for the aspect of the infringement relating to paraffin waxes and a rate of 15% for the slack wax aspect of the infringement. Both the rates applied come within the scale provided for in the 2006 Guidelines, namely 15 to 25%.
Moreover, according to point 22 of the 2006 Guidelines, to which point 25 thereof refers, the rate of the additional amount is to be determined by reference to the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented. The Commission referred to two of those factors, namely the nature of the infringement and its geographic scope, in order to justify the rate applied in the case of paraffin waxes. As regards the rate applied to the slack wax aspect of the infringement, no further justification was necessary, since the Commission applied the minimum rate envisaged, namely 15%.
It follows that the Commission did not breach the 2006 Guidelines and the argument which the applicant puts forward in that regard must therefore be rejected.
In the second place, the applicant claims that the Commission did not state sufficient reasons for including an additional amount in the basic amount of the fine in order to ensure a deterrent effect.
It should be borne in mind that 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 Court to exercise its power of review. The assessment of the requirement to state reasons depends on the circumstances of each case. 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 the wording of the measure but also to the context in which the measure was adopted (see paragraph 239 above).
As is clear from the analysis carried out at paragraphs 441 to 444 above, the Commission explained, at recitals 660 and 661 to the contested decision, the reasons which had led it to include an additional amount for deterrence in the basic amount of the fine in the present case in sufficient detail to enable the applicant to ascertain the reasons for its choice and the Court to exercise its power of review.
Accordingly, the applicant’s argument alleging insufficient reasoning must be rejected.
In the third place, the applicant claims that the Commission breached the principle that penalties must be specific to the offender and the principle of proportionality.
In that regard, it should be borne in mind that, in the context of calculating the amount of fines imposed under Article 23(2) of Regulation No
1/2003, differentiated treatment of the undertakings concerned is inherent in the exercise of the Commission’s powers under that provision. In exercising its discretion, the Commission is required to fit the penalty to the individual conduct and specific characteristics of the undertakings concerned in order to ensure that, in each case, the EU competition rules are fully effective (see Case C-76/06 P
Britannia Alloys & Chemicals
v
Commission
[2007] ECR I-4405
, paragraph 44 and the case‑law cited).
First, the applicant claims that the automatic inclusion in the basic amount of the fine of the additional amount provided for in point 25 of the 2006 Guidelines is in itself contrary to the principle that penalties must be specific to the offender.
That argument cannot be accepted. It is clear from the wording and the structure of the 2006 Guidelines that the Commission, when determining the amount of the fine, uses both the factors the rate of which is common to all participants, in order to reflect the fact that those undertakings participated in the same unlawful practices, thus respecting the principle of equal treatment, and the factors the rate or coefficient of which is adjusted in the light of the particular situation of each participant, in order to comply with the principle that penalties must be specific to the offender.
Therefore, in order to comply with the principle that penalties must be specific to the offender, it is sufficient that the final amount of the fine reflects the differences in the situations of the various participants, without there being any need for the Commission to differentiate the treatment of the participants at each stage of the calculation of the amount of the fine.
It is apparent from the wording and the structure of the 2006 Guidelines that the provision, in point 25 thereof, concerning the inclusion in the basic amount of the fine of an additional amount for deterrence reflects participation in the most harmful anti-competitive practices. The additional amount included on that basis relates to the characteristics of the practices of all the participants and not of the individual situation of each of them.
Accordingly, the lawfulness of that provision and of its application in the present case cannot be called into question on the basis of the principle that penalties must be specific to the offender and the arguments which the applicant puts forward in that regard must therefore be rejected.
Second, in the applicant’s submission, it follows from the case‑law that the Commission is required to ensure that the penalty is appropriate in the light of the individual characteristics of the undertakings concerned. In the present case, however, the Commission did not analyse or take account of a body of factors that ought to have led it not to include an additional amount for deterrence.
The applicant observes that it ceased to sell paraffin waxes as from 31 July 2005 and now produces only slack wax as a sub-product of basic oils. Since the applicant is therefore no longer present on the relevant market, there is no reason to include an additional amount for deterrence in the basic amount of the fine.
In addition, according to the applicant, it has already demonstrated to the Commission, notably in its reply to the statement of objections, its support for compliance with the competition rules, which forms part of the values of the Total group clearly inscribed in its code of conduct for several years.
In that regard, it should be borne in mind that the deterrent effect of the fine is not designed solely to deter the undertaking in question from repeating the infringement (special prevention). The Commission has the power to determine the level of fines with a view to reinforcing their deterrent effect in general, especially where infringements of a given type are still relatively frequent or are regarded as serious (general prevention) (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 134, and Case
T-15/02
BASF
v
Commission
[2006] ECR II-497
, paragraph 231).
Accordingly, the applicant cannot rely on the fact that it is no longer present on the paraffin waxes market and that its code of conduct prescribes compliance with the competition rules. On the assumption that they are true, those factors are intended only to reduce the likelihood that the applicant will repeat the infringement and are irrelevant from the point of view of general prevention, which may also be taken into account by the Commission when it fixes the amount of fines for deterrence.
Last, the applicant observes that the Commission breached the principle of proportionality, because deterrence by the fine has already been ensured by other factors taken into account by the Commission, so that the application of the ‘entry fee’ was no longer necessary from the point of view of the aim pursued by the Commission. First, the applicant refers to the multiplication of the value of sales taken into consideration by the Commission by the relatively long duration of the alleged infringement. Second, the Commission applied point 30 of the 2006 Guidelines by multiplying by 1.7 the basic amount of the applicable fine ‘for the purposes of deterrence’ (recital 713 to the contested decision).
In that regard, it should be observed that, according to the case‑law, as deterrence is an objective of the fine, the need to ensure it is a general requirement which must be a reference point for the Commission throughout the calculation of the amount of the fine and does not necessarily require that there be a specific step in that calculation in which an overall assessment is made of all relevant circumstances for the purposes of attaining that objective. Thus, the need for deterrence is not the subject of a separate assessment to be carried out at a specific stage of the calculation of the amount of the fines, but must underpin the entire process of setting the amount of the fine (
BASF
v
Commission
, paragraph 460 above, paragraphs 226 and 238, and
Le Carbone Lorraine
v
Commission
, paragraph 254 above, paragraph 131).
The applicant cannot therefore validly take issue with the Commission for having taken the need to ensure the deterrent effect of the fine into account at a number of stages in setting the amount.
In the light of the foregoing, the applicant’s ninth plea must be rejected.
9.
Tenth plea, alleging breach of the principle of proportionality as regards the final amount of the fine
In the context of the present plea, the applicant takes issue with the fact that the Commission set the final amount of the fine at EUR 128 163 000, whereas its annual value of sales on the relevant markets was only EUR 31 133 865 (recital 639 to the contested decision). The amount of the fine is therefore disproportionate by comparison with the annual value of sales, even by reference to Total France’s turnover on the relevant markets throughout the entire infringement period.
In the first place, the applicant maintains that the amount of the fine is disproportionate, since it represents 410% of the value of its sales on the relevant markets.
According to the case‑law cited at paragraphs 431 and 432 above, the amount of the fine must be proportionate to the gravity and the duration of the infringement in which the applicant participated.
Furthermore, according to the case‑law, the deterrent effect of the fines would be diminished if undertakings which committed an infringement of competition law could expect that their conduct would be penalised by a fine of an amount lower than the profit which was likely to be derived from that conduct (Case
T-9/99
HFB and Others
v
Commission
[2002] ECR II-1487
, paragraph 456, and
BASF
v
Commission
, paragraph 460 above, paragraph 227).
If the applicant’s argument were accepted, and if it were necessary to consider the proportionality of the final amount of the fine by reference to the value of sales of the relevant products in a single year, the amount of the fine that could be imposed would remain stable in spite of the increase in the number of years of participation in the infringement, whereas the profit improperly derived from the infringement would increase in a linear fashion as the number of years increased. Thus, the longer the duration of an undertaking’s participation in the cartel, the more negligible the amount of the fine which the participants could expect would become by comparison with the undue profit which they derive from it. Accordingly, the application of the principle of proportionality, as advocated by the applicant, would deprive the sanctions imposed under Regulation No 1/2003 of all practical effect in the case of infringements of long duration, such as that in the present case.
In addition, the approach advocated by the applicant would prevent the Commission and the Court from ensuring, in accordance with Article 23(3) of Regulation No 1/2003, that the amount of the fine imposed on the participants in the cartel is proportionate not only to the gravity but also to the duration of the infringement.
It follows that the annual value of sales cannot in itself be taken into account as a basis for the examination of the proportionate nature of the amount of the fine, especially in the case of an infringement of long duration, such as that in the present case, in which the applicant participated for more than 12½ years.
Accordingly, the argument which the applicant derives from the fact that the amount of the fine imposed on it represents 410% of its annual value of sales on the relevant markets must be rejected.
In the second place, the applicant claims that the amount of the fine represents 32.63% of its turnover on the relevant markets throughout the entire duration of the infringement, which is manifestly disproportionate and represents a level never reached in the Commission’s practice in taking decisions.
In that regard, it should be observed that the high percentage of the amount of the fine by comparison with Total France’s turnover on the relevant markets throughout the entire duration of the infringement is attributable to the fact that the Commission took into account the turnover of the entire Total group, in application of point 30 of the 2006 Guidelines. The Commission fixed a multiplier of 1.7 on that basis (see paragraph 15 et seq. above). In the applicant’s submission, however, the overall turnover of the Total group is not relevant.
The applicant refers to paragraph 94 of Case
T-77/92
Parker Pen
v
Commission
[1994] ECR I-549
.
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 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 total turnover. That is particularly so when the goods concerned account for only a small part of that figure turnover (see 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 243;
Archer Daniels Midland and Archer Daniels Midland Ingredients
v
Commission
, paragraph 242 above, paragraph 100; and
Parker Pen
v
Commission
, paragraph 476 above, paragraph 94).
Conversely, Union law contains no general principle that the penalty must be proportionate to the undertaking’s size on the product market in respect of which the infringement was committed (
Archer Daniels Midland and Archer Daniels Midland Ingredients
v
Commission
, paragraph 242 above, paragraph 101).
It must be stated that the Commission complied with those requirements of the case‑law. It took as its basis at the outset Total France’s turnover on the markets affected by the infringement; and, emphasising that the basic amount of the fine represented only an insignificant fraction (0.03%) of the turnover of the undertaking concerned, the Total group, it fixed a coefficient of 1.7 in order to take the size of the undertaking liable for the infringement into consideration.
In so doing, the Commission did not attribute to either of those turnovers an importance that was disproportionate by comparison with the other elements of assessment.
Furthermore, the applicant cannot validly rely on the fact that the final amount of the fine had never been fixed at such a high percentage of the value of sales of the relevant products in the Commission’s previous practice in taking decisions.
In that regard, it is sufficient to recall that the Commission’s previous practice in taking decisions cannot serve as a legal framework for the fines imposed in competition matters, since that framework is defined solely in Regulation No 1/2003, and that decisions in other cases can give only an indication for the purpose of determining whether there might be discrimination, since the facts of those cases, such as markets, products, the undertakings and periods concerned, are not likely to be the same (see Case
T-68/04
SGL Carbon
v
Commission
[2008] ECR II-2511
, paragraph 114 and the case‑law cited).
In the light of the foregoing, the applicant’s tenth plea must be rejected.
10.
Eleventh plea, alleging infringement of Article 81 EC owing to the imputation to Total SA of the conduct of Total France
The applicant claims that the Commission unlawfully imputed liability to Total SA for the infringement which the applicant had committed. In the context of the first part of this plea, the applicant claims that the Commission infringed Article 81 EC by applying a presumption based solely on the capital links between a parent company and its subsidiary. In the context of the second part, the applicant disputes the Commission’s finding that the applicant did not demonstrate that it acted independently on the market.
The applicant therefore asks the Court to annul the contested decision in so far as liability for the infringement is imputed to Total SA and the Commission applied a multiplier of 1.7 on account of the size of the undertaking, for deterrence, when calculating the amount of the fine.
First part, alleging an error of law in respect of the application of a presumption that the infringement is imputable to the parent company on the sole basis of the capital links
The applicant maintains that the Commission erred in law in considering that the mere finding of close capital links was sufficient to presume that the parent company exercised decisive influence over the commercial conduct of the subsidiary. Such a presumption is contrary to the principle that penalties must be specific to the offender, the principle of the presumption of innocence and the principle that the burden of proving that an undertaking is culpable is borne by the Commission. Furthermore, the Commission applied an irrebuttable presumption of culpability in the present case.
As a preliminary point, as regards the joint and several liability of a parent company for the conduct of its subsidiary, it should be borne in mind that the fact that a subsidiary has separate legal personality is not sufficient to preclude the possibility of that its conduct may be imputed to the parent company (Case
48/69
Imperial Chemical Industries
v
Commission
[1972] ECR 619
, paragraph 132).
European Union competition law refers to the activities of undertakings and the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see Case
C-97/08 P
Akzo Nobel and Others
v
Commission
[2009] ECR I-8237
, paragraph 54 and the case‑law cited).
The Courts of the European Union have also made clear that the concept of undertaking must be understood, in that context, as designating and economic unit even if in law that economic unit consisted of several persons, natural or legal (see Case
170/83
Hydrotherm Gerätebau
[1984] ECR 2999
, paragraph 11;
Akzo Nobel and Others
v
Commission
, paragraph 488 above, paragraph 55 and the case‑law cited; and Case
T-234/95
DSG
v
Commission
[2000] ECR II-2603
, paragraph 124). It has thus been held that, for the purposes of applying the competition rules, the formal separation between two companies resulting from their separate legal personality is not conclusive, the decisive test being the uniformity or otherwise of their conduct on the market. Thus, it may prove necessary to establish whether two companies that have distinct legal personalities form, or fall within, one and the same undertaking or economic entity adopting the same course of conduct on the market (
Imperial Chemical Industries
v
Commission
, paragraph 487 above, paragraph 140, and Case
T-325/01
DaimlerChrysler
v
Commission
[2005] ECR II-3319
, paragraph 85).
When such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (
Akzo Nobel and Others
v
Commission
, paragraph 488 above, paragraph 56 and the case‑law cited).
The infringement of EU competition law must be imputed unequivocally to a legal person on whom fines may be imposed and the statement of objections must be addressed to that person. It is also necessary that the statement of objections indicate in which capacity a legal person is called on to answer the allegations (see
Akzo Nobel and Others
v
Commission
, paragraph 488 above, paragraph 57 and the case‑law cited).
Thus, the conduct of a subsidiary may be attributed to the parent company in particular where, although having a separate legal personality, that subsidiary does not determine independently its own conduct on the market, but essentially carries out the instructions given to it by the parent company, having regard especially to the economic, organisational and legal links between those two legal entities (see Case
C-294/98 P
Metsä-Serla and Others
v
Commission
[2000] ECR I-10065
, paragraph 27;
Dansk Rørindustri and Others
v
Commission
, paragraph 477 above, paragraph 117; and
Akzo Nobel and Others
v
Commission
, paragraph 488 above, paragraph 58 and the case‑law cited).
In such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of the case‑law referred to at paragraph 488 above. Thus, the fact that a parent company and its subsidiary constitute a single undertaking within the meaning of Article 81 EC enables the Commission to address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (
Akzo Nobel and Others
v
Commission
, paragraph 488 above, paragraph 59).
In the present case, the Commission considered, at recitals 332 and 333 to the contested decision, that the mere fact that the parent company held all or virtually all the subsidiary’s capital allowed the Commission to presume that the parent company exercised decisive influence over the commercial policy of its subsidiary and therefore to impute the subsidiary’s anti-competitive conduct to the parent company. According to the contested decision, while the application of that presumption does not require that the Commission adduce additional indicia to support it, such a presumption may none the less be rebutted where the companies concerned adduce evidence showing that the subsidiary determined its commercial policy autonomously.
The applicant claims that the case‑law of the Union does not permit liability for an infringement committed by a subsidiary to be imputed to the parent company on the sole basis of the level of capital held by the parent company, even where the subsidiary is controlled as to 100%, as in this case. The case‑law requires that the presumption that the parent company does in fact exercise decisive influence over the wholly-owned subsidiary always be supported by specific indicia demonstrating such influence.
It should be borne in mind that in the specific case of a parent company holding 100% of the capital of a subsidiary which has infringed the European Union competition rules, first, the parent company can exercise decisive influence over the conduct of the subsidiary and, second, there is a rebuttable presumption that the parent company does in fact exercise decisive influence over the conduct of its subsidiary. In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent company exercises a decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see
Akzo Nobel and Others
v
Commission
, paragraph 488 above, paragraphs 60 and 61 and the case‑law cited).
While it is true that, in its case‑law before
Akzo Nobel and Others
v
Commission
, paragraph 488 above, the Court of Justice referred not only to the fact that the parent company owned 100% of the capital of the subsidiary but also to other circumstances showing that the parent company exercised decisive influence over the subsidiary’s commercial conduct, the fact none the less remains that the application of the presumption referred to at paragraph 496 above is not subject to the production of additional indicia relating to the actual exercise of such influence by the parent company (see
Akzo Nobel and Others
v
Commission
, paragraph 488 above, paragraph 62 and the case‑law cited, and Case
T-69/04
Schunk and Schunk Kohlenstoff-Technik
v
Commission
[2008] ECR II-2567
, paragraph 57).
The Commission therefore did not err in considering that the mere fact that the parent company held all or virtually all of the subsidiary’s capital allowed it to presume that the parent company exercised decisive influence over the subsidiary’s commercial policy and, accordingly, to impute the subsidiary’s anti-competitive conduct to the parent company.
None of the applicant’s other arguments can cast doubt on that finding.
In the first place, the applicant maintains that the Commission’s position is unacceptable, since it establishes a presumption of culpability of any entity having significant capital links with another entity, in breach of the principle of the presumption of innocence and the principle that the burden of proving that an undertaking is culpable is borne by the Commission. Furthermore, in the applicant’s submission, while the fact that the parent company actually appointed the members of the subsidiary’s board of directors is sufficient to establish the imputability of the infringement to the parent company, the presumption of imputability is rebuttable.
In that regard, it should be observed that the application of the presumption that the parent company owning all or virtually all of the capital of its subsidiary does in fact exercise decisive influence over the commercial conduct of the subsidiary is justified by the fact that, where the parent company is the subsidiary’s sole shareholder, it has at its disposal all the possible means of ensuring that the subsidiary’s commercial conduct is aligned with its own. In particular, it is the sole shareholder that defines, in principle, the extent of the subsidiary’s autonomy by establishing the latter’s articles of association, chooses its management and takes or approves the subsidiary’s strategic commercial decisions, if necessary by having representatives on the subsidiary’s bodies. Likewise, the economic unity between the parent company and its subsidiary is normally further protected by obligations arising under the company law of the Member States, such as the obligation to keep consolidated accounts, the obligation for the subsidiary to account periodically for its activities to the parent company and also by the approval of the subsidiary’s accounts in general meeting, consisting solely of the parent company, which necessary means that the parent company follows, at least in broad terms, the commercial activities of the subsidiary.
Next, it should be emphasised that in the case of a subsidiary which is wholly, or almost wholly, owned by a single parent company, there is in principle a single commercial interest and the members of the subsidiary’s bodies are designated and appointed by the sole shareholder, which may give them at least informal instructions and impose performance criteria on them. In such a case, therefore, there is necessarily a relationship of confidence between the management of the subsidiary and the management of the parent company and the management of the subsidiary necessarily act by representing and promoting the only commercial interest that exists, namely the interest of the parent company. Thus, the unity of the market conduct of the parent company and of its subsidiary is ensured in spite of any autonomy conferred on the management of the subsidiary as regards its operational direction, which comes within the definition of the parent company’s commercial policy in the strict sense. As a general rule, moreover, it is the sole shareholder that defines, on its own and according to its own interests, the procedure whereby the subsidiary takes decisions and that determines the subsidiary’s operational autonomy, which it may change on its own initiative by amending the rules governing the functioning of the subsidiary or in the context of a restructuring, or indeed by setting up informal decision-taking structures.
Thus, the presumption that the parent company does in fact exercise decisive influence over the commercial conduct of its subsidiary is justified in so far as it covers typical situations as regards the relationship between a subsidiary and its sole parent company, by providing that the ownership of all or virtually all the capital of the subsidiary by a single parent company means in principle that they pursue the same conduct on the market.
The fact none the less remains that, following the statement of objections, the companies concerned have every opportunity to show that the mechanisms described at paragraphs 501 and 502 above, normally leading to the alignment of the commercial conduct of the subsidiary with that of its parent company, did not operate in the ordinary manner, so that the economic unity of the group was severed.
Consequently, the presumption that the parent company owning all or virtually all of the capital of its subsidiary does in fact exercise decisive influence over the subsidiary’s commercial conduct is not irrebuttable and remains within acceptable limits, since it is proportionate to the legitimate aim pursued that there is an opportunity to adduce evidence to the contrary and the rights of the defence are safeguarded.
In the second place, the applicant claims that the application of the presumption at issue is contrary to the principle that penalties must be specific to the offender.
In accordance with the principle that penalties must be specific to the offender, which is applicable in any administrative procedure which may lead to the imposition of penalties under the European Union competition rules, an undertaking may be penalised only for acts imputed to it individually (see, to that effect, Joined Cases
T-45/98 and T-47/98
Krupp Thyssen Stainless and Acciai speciali Terni
v
Commission
[2001] ECR II-3757
, paragraph 63).
However, that principle must be reconciled with the concept of ‘undertaking’ and with the case‑law according to which the fact that the parent company and its subsidiary constitute a single undertaking for the purposes of Article 81 EC empowers the Commission to address the decision imposing fines to the parent company of a group of companies. Thus, it must be held that Total SA was held individually liable for the infringement which it is deemed to have committed itself on account of its legal and economic links with Total France owing to the fact that it held all the latter’s capital (see, to that effect,
Metsä‑Serla and Others
v
Commission
, paragraph 492 above, paragraph 34).
In the light of the foregoing, the first part of the present plea must be rejected.
Second part, concerning the assessment of the indicia adduced by the applicant in order to rebut the presumption that the parent company did in fact exercise decisive influence over the subsidiary’s commercial conduct on the market
The applicant claims that, in any event, the evidence which it presented in its reply to the statement of objections, showing that it was autonomous in relation to Total SA, was sufficient to rebut the presumption.
In that regard, it should be considered that, according to the case‑law, in order to rebut the presumption applied by the Commission, it was for the applicant to put forward any evidence relating to the organisational, economic and legal links between it and Total SA which in its view are apt to demonstrate that those two companies did not constitute a single economic entity. When making its assessment, the Court must take into account all the evidence adduced, the nature and importance of which may vary according to the specific features of each case (see, to that effect, Case
T-112/05
Akzo Nobel and Others
v
Commission
[2007] ECR II-5049
, paragraph 65, upheld on appeal in
Akzo Nobel and Others
v
Commission
, paragraph 488 above).
The presumption that the parent company did in fact exercise decisive influence over the commercial conduct of its subsidiary on the market is based on the finding that, first, other than in wholly exceptional circumstances, a company holding all or virtually all of a subsidiary’s capital may, solely by virtue of that capital holding, exercise decisive influence over that subsidiary’s conduct and, second, it is within the sphere of operations of the entities against which the presumption operates that evidence of the lack of actual exercise of that power to influence.
In the present case, at recital 578 to the contested decision, the Commission stated the following:
‘The exercise of decisive influence on the commercial policy of a subsidiary does not require day-to-day management of the subsidiary’s operation. The subsidiary’s management may well be entrusted with the subsidiary, but this does not rule out the ability for the parent company to impose objectives and policies which affect the performance of the group and its coherence and to discipline any behaviour which may depart from those objectives and policies. In fact, Total SA admits that it has a role of institutional coordination and control of strategic orientations, and that it has the power to approve, or disapprove, the most important investments or major changes of activities within the group. This shows that Total SA, as a parent company, has an interest and role over its subsidiaries as a shareholder to protect its financial ownership and commercial strategy interests. Total SA also lists certain other matters such as human resources policy, keeping consolidated accounts, and determination of the fiscal policy for the group, and some other horizontal operational tasks, including industrial security, environment, ethics treasury, financing etc. which are in the hands of Total SA for the whole group.’
The applicant maintains that the Commission was wrong to reject the evidence which it had put forward in order to demonstrate that Total SA did not exercise decisive influence over its commercial conduct.
The applicant emphasises that its strategies were implemented by its own employees, with the assistance of its own financial, legal, information technology and other resources. In addition, in accordance Total France’s management of the paraffin waxes activity it was never required to seek Total SA’s authorisation for the investments made during the period under consideration. That is the consequence of the fact that the turnover of the paraffin waxes activity accounted for scarcely more than one thousandth of Total France’s sales.
In the applicant’s submission, it follows from all of the foregoing that during the period to which the alleged infringement relates it had all the resources to conduct an autonomous policy with respect to the marketing of the products for which it was responsible and, more particularly, paraffin waxes and slack wax. The reporting of that activity to Total SA was limited to general financial information and did not involve any communication relating to the commercial policy followed and therefore to contacts with its competitors.
A fortiori
, Total France never received instructions from its parent company concerning the policy which it was to follow in regard to the marketing of paraffin waxes and slack wax.
The alleged autonomous definition by Total France of its commercial strategy
In the first place, it should be borne in mind that Total SA acknowledged, in its reply to the statement of objections, that it had played a role of institutional coordination, control of the coherence of strategic direction and control of the most important investments within the group.
In the second place, even on the assumption that it is shown to be true, the fact that a subsidiary has its own local management and its own resources does not prove, in itself, that that company decides upon its conduct on the market independently of its parent company. The division of tasks between subsidiaries and their parent companies and, in particular, the fact that a wholly-owned subsidiary is entrusted with the management of day-to-day activities is normal practice in large undertakings composed of a multitude of subsidiaries ultimately owned by the same holding company. Consequently, in the case of a wholly-owned or virtually wholly-owned subsidiary directly involved in the infringement, the evidence adduced in that regard is not capable of rebutting the presumption that decisive influence over the subsidiary’s conduct was effectively exercised by the parent company and by the holding company.
In the third place, the Commission stated, at recital 578 to the contested decision, that Total SA ‘also list[ed] certain other matters such as human resources policy, keeping consolidated accounts, and determination of the fiscal policy for the group, and some other horizontal operational tasks, including industrial security, environment, ethics treasury, financing etc. which were in the hands of Total SA for the whole group’. Those factors further undermine the applicant’s position that it enjoyed full organisational autonomy within the group.
The Commission therefore did not make an error of assessment when it considered that the evidence relating to the organisational structure of the group and the allegedly autonomous definition of Total France’s commercial policy had not enabled the presumption that the parent company effectively exercised decisive influence of the commercial conduct of the subsidiary on the market to be rebutted.
The small proportion of sales of paraffin waxes in Total France’s turnover
The applicant observes that the ‘waxes and paraffin’ activity accounts for only a very small proportion of its turnover and that it accounts for an even smaller proportion of the turnover of the Total group.
However, according to the case‑law, the fact that the sector or the activity affected by the infringement accounts for only a small percentage of the overall activities of the group or the parent company is not such as to prove the autonomy of the subsidiary vis-à-vis its parent company and, accordingly, has no impact on the application of the presumption that the parent company effectively exercised decisive influence over the commercial conduct of the subsidiary on the market (judgment of 30 September 2009 in Case T‑168/05
Arkema
v
Commission
, not published in the ECR, paragraph 79; see also, to that effect,
Bolloré and Others
v
Commission
, paragraph 68 above, paragraph 144, and Case
T-314/01
Avebe
v
Commission
[2006] ECR II-3085
).
It follows that the applicant’s arguments must be rejected as irrelevant.
The allegations that Total France did not inform Total SA of its activity on the market
The applicant claims that the reporting of the paraffin waxes activity to Total SA was limited to general financial information and did not involve any communication relating to the commercial policy followed and therefore to the contacts with its competitors.
In that regard, it is sufficient to observe that this Court rejected identical arguments in
Arkema
v
Commission
(paragraph 522 above, paragraphs 77 and 78). It recalled that it is not because of a parent-subsidiary relationship in which the parent company instigates the infringement or,
a fortiori
, because of the parent company’s involvement in the infringement, but because they constitute a single undertaking that the Commission is able to address the decision imposing fines to the parent company of a group of companies. The fact that there was no specific policy of informing Total SA about the paraffin waxes market or that Total SA was not aware of the infringement cannot demonstrate Total France’s autonomy.
Consequently, the applicant’s arguments in that regard must also be rejected.
The allegations that Total France was not subject to instructions from Total SA
The applicant observes that it never received instructions from Total SA concerning the policy that it must follow concerning the marketing of waxes and paraffins and slack wax.
In that regard, it must be considered that the point to which the applicant refers is to a large extent a corollary of the fact that it has separate legal personality from Total SA, that, according to the allocation of tasks within the group, it is responsible for ‘refining and marketing’ and that its management was given autonomy with respect to the management of day-to-day business in that sphere. If those factors, which are characteristics of the functioning of a subsidiary within a group of a comparable size to the applicant’s group, were sufficient to rebut the presumption applied by the Commission because they proved that the parent company could not exercise decisive influence over its subsidiary, that would render meaningless not only such a presumption but also the very concept of an economic unit between parent company and subsidiary and, ultimately, the concept of ‘undertaking’ as defined in the case‑law.
Furthermore, it should be observed that identical arguments were rejected by this Court in
Arkema
v
Commission
(paragraph 522 above, paragraphs 76 and 80), since they were factors that are not capable of rebutting the presumption that the parent company does in fact exercise decisive influence over the commercial conduct of the subsidiary on the market.
The present arguments must therefore also be rejected, for the same reasons.
Last, for the sake of completeness, it should be emphasised that none of the arguments put forward by the applicant in order to rebut the presumption at issue is capable of demonstrating that the mechanisms described at paragraphs 501 and 502 above, which habitually lead to the alignment of the commercial policy of the subsidiary with that of the parent company, did not operate normally and that the economic unit of the group was severed.
It follows from all of the foregoing that the Commission was correct to consider that the applicant and Total SA had not succeeded in rebutting the presumption that Total SA exercised decisive influence over the commercial policy of its subsidiary and that, accordingly, they formed an undertaking for the purposes of Article 81 EC.
In the light of the foregoing, the applicant’s eleventh plea must be rejected in its entirety.
11.
Twelfth plea, raised at the hearing, alleging breach of the applicant’s rights of defence
At the hearing the applicant claimed that there had been a breach of its rights of defence owing to the inclusion in the value of sales used in calculating the amount of the fine of the turnover of the other companies in the Total group.
The Commission contends that this plea is inadmissible, since it was not raised in the application.
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 of the Court 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.
It must be stated that the applicant did not put forward any argument before the hearing concerning an alleged breach of its rights of defence owing to the inclusion of the turnover of other companies in the Total group in the value of sales used in calculating the amount of the fine.
This plea must therefore be rejected as inadmissible.
12.
Eighth plea, alleging the unlawfulness of point 24 of the 2006 Guidelines
The applicant maintains that the calculation method laid down in point 24 of the 2006 Guidelines is unlawful.
As a preliminary point, it should be borne in mind that, according to point 24 of the 2006 Guidelines:
‘In order to take fully into account the duration of the participation of each undertaking in the infringement, the amount determined on the basis of the value of sales … will be multiplied by the number of years of participation in the infringement. Periods of less than six months will be counted as half a year; periods longer than six months but shorter than one year will be counted as a full year.’
In the present case, the applicant claims that, according to the contested decision, it participated in the infringement for only 12 years and 7 months (from 3 September 1992 until 28 April 2005) for paraffin waxes and for 6 years and 6 months (from 30 October 1997 until 12 May 2004) for slack wax, whereas it was penalised for periods of 13 and 7 years respectively, or 11 additional months, representing an overestimate of around 5% of the duration of its participation in the infringement. It submits that the 2006 Guidelines, requiring the Commission to proceed in that way, breach the principles of proportionality, equal treatment and the presumption of innocence and infringe Article 23(3) of Regulation No 1/2003.
The Commission claims that, when setting the amount of the fine, including at the various stages of calculating the amount of the fine, it has a wide margin of discretion.
In that regard, it should be observed that 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 the provisions of Regulation No 1/2003, as interpreted by the Court of Justice (
Dansk Rørindustri and Others
v
Commission
, paragraph 492 above, paragraph 267 and Case T‑21/05
Chalkor
v
Commission
[2010] II‑1895, paragraph 62).
However, according to the case‑law, when setting the amount of the fine, the Commission is bound to comply with the general principles of law, in particular the principles of equal treatment and proportionality, as developed in the case‑law of the Courts of the Union (Case
T-279/02
Degussa
v
Commission
[2006] ECR II-897
, paragraphs 77 and 79, and
Schunk and Schunk Kohlenstoff-Technik
v
Commission
, paragraph 497 above, point 41).
Likewise, 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 (
JFE Engineering and Others
v
Commission
, paragraph 41 above, paragraph 538), 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).
It should also be borne in mind that, in Case
T-220/00
Cheil Jedang
v
Commission
[2003] ECR II-2473
, paragraphs 134 to 139, and
BASF and UCB
v
Commission
(paragraph 267 above, paragraphs 219 and 220), this Court has already adjusted the multiplier applied by the Commission to reflect the duration of the infringement in order better to reflect the actual duration of the applicant’s participation, with the aim of thus ensuring the proportionality of the fine by reference to the duration of the infringement and to avoid discrepancies in the treatment of the undertakings penalised in the same decision.
The Court considers that it is also necessary to adopt such an approach in the present case.
In the first place, it should be noted that, in holding the applicant liable for a considerable number of days in respect of which no participation in the infringement was established, the Commission breached the principle of proportionality, since the amount of the fine as thus calculated does not reflect the duration of the infringement in an appropriate manner (see paragraph 432 above).
In the second place, it should be borne in mind that, as is apparent from the case‑law cited at paragraph 384 above, 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 treatment is objectively justified.
In the present case, in application of point 24 of the 2006 Guidelines, the Commission, when determining the duration of the applicant’s participation in the infringement relating to paraffin waxes, assimilated its participation of 7 months and 28 days to a participation of a full year. In the case of ExxonMobil, 11 months and 20 days and, in Sasol’s case, 11 months and 27 days were also regarded as a full year.
It follows that, for the last year of the applicant’s participation in the infringement, it was held liable for 4 months and 3 days, during which no unlawful conduct was established as against it, whereas in ExxonMobil’s case only 10 extra days and in Sasol’s case only three extra days were added to the actual duration of their participation in the infringement for the purposes of calculating the amount of the fine.
In so doing, the Commission treated different situations in the same way.
Nor was such treatment objectively justified, since its sole origin was the calculation method provided for in point 24 of the 2006 Guidelines. The aim of that provision is to ensure that the amount of the fine is proportionate to the duration of an undertaking’s participation in the infringement. It cannot therefore constitute objective justification for unequal treatment, in so far as the result of its strict application in the present case is the establishment of a manifestly disproportionate duration both by comparison with the actual duration of the applicant’s participation in the cartel and in the light of the treatment of the other participants.
Consequently, it must be concluded that the Commission breached the principle of equal treatment.
In the third place, it should be observed that the other arguments put forward by the Commission did not justify the approach taken in the present case either.
In Joined Cases
T-259/02 to T-264/02 and T-271/02
Raiffeisen Zentralbank Österreich and Others
v
Commission
[2006] ECR II-5169
, paragraphs 465 to 467, cited by the Commission, first, the Court had considered that the applicants could not validly claim that the Commission should reduce the rate of increase of the starting amount of the fine for the period during which the intensity of the cartel had been lower by comparison with other periods. Second, it held that the Commission could lawfully fix a rate of increase of 12% for an infringement of average duration, since the maximum rate of 10% applied, according to the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (
OJ 1998 C 9, p. 3
), only to infringements of long duration. Those complaints have nothing in common with those presented by the applicant in the present case.
Likewise, at paragraph 112 of the judgment in Case
T-68/04
SGL Carbon
v
Commission
[2008] ECR II-2511
, the Court rejected the argument which SGL Carbon derived from the application of an alleged ‘principle of decreasing fines’, which is not put forward by the applicant in the present case.
Last, as regards the reference to
Dansk Rørindustrie and Others
v
Commission
(paragraph 492 above, paragraph 336), it should be observed that the Court of Justice examined this Court’s assessment of a question of proportionality specific to the logic of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS], so that that analysis is not relevant in the present case, since the Commission applied the 2006 Guidelines.
In the fourth place, it should be emphasised that the calculation of the coefficient inferred from the duration with respect to the slack wax aspect of the infringement is flawed in the same way as was described at paragraphs 548 and 554 above with respect to paraffin waxes.
At recital 611 to the contested decision, the Commission stated that the period of the applicant’s participation had lasted from 30 October 1997 until 12 May 2004. That period is equivalent to 6 years, 6 months and 12 days. However, in application of point 24 of the 2006 Guidelines, the Commission considered that the applicant had participated in the infringement for a period of 7 years, thus adding 5 months and 18 days to the actual period of the applicant’s participation. In the case of Esso Société Anonyme Française, the period added consisted of only 2 months and 21 days.
In the light of the foregoing, as the Commission breached the principle of proportionality and the principle of equal treatment, the present plea must be upheld and the contested decision must be annulled in regard to the applicant as concerns the determination of the multiplier reflecting the duration of its participation in the infringement, without there being any need to adjudicate on the lawfulness of point 24 of the 2006 Guidelines. The consequences that must be drawn for the determination of the amount of the fine will be examined at paragraph 566 et seq. below.
13.
The exercise of the Court’s unlimited jurisdiction and the determination of the final amount of the fine
It should be borne in mind that review of the lawfulness of decisions adopted by the Commission is supplemented by the unlimited jurisdiction conferred on the Courts of the Union by Article 31 of Regulation No 1/2003, in accordance with Article 229 EC. That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed. The review provided for in the Treaties therefore implies, in accordance with the requirements of the principle of effective judicial protection set out in Article 47 of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (
OJ 2000 C 364, p. 1
), that the Courts of the Union exercise their review both de lege and de facto and that they are empowered to assess the evidence, annul the contested decision and vary the amount of fines (see, to that effect, Case
C-3/06 P
Groupe Danone
v
Commission
[2007] ECR I-1331
, paragraphs 60 to 62, and Case
T-368/00
General Motors Nederland and Opel Nederland
v
Commission
[2003] ECR II-4491
, paragraph 181).
It is therefore for the Court, in the exercise of its unlimited jurisdiction, to assess, on the date on which it adopts its decision, whether the applicant received a fine the amount of which properly reflects the gravity and the duration of the infringement in question, in such a way that the fines are proportionate in the light of the criteria set out in Article 23(3) of Regulation No 1/2003 (see, to that effect, Case
T-156/94
Aristrain
v
Commission
[1999] ECR II-645
, paragraphs 584 to 586, and
Cheil Jedang
v
Commission
, paragraph 546 above, paragraph 93).
It must, however, be pointed out that the exercise of unlimited jurisdiction does not amount to a review undertaken of the Court’s own motion, and it must be borne in mind that proceedings before the Courts of the European Union are inter partes.
It should be borne in mind that, in order to calculate the amount of the fine imposed on the applicant, the Commission took into account, to reflect the gravity of the infringement, 18% of the annual value of sales of paraffin waxes and 15% of the annual value of sales of slack wax. The amounts thus obtained were multiplied, to reflect the duration of the infringement, by a coefficient of 13 for paraffin waxes and 7 for slack wax. In total, including the ‘entry fee’ the Commission used multipliers of 14 for paraffin waxes and 7 for slack wax.
In order to redress the illegalities established at paragraph 561 above, in adjusting the amount of the fine imposed on the applicant in order to take account of the precise duration of its participation in the infringement, the multiplier used to reflect the duration of its participation in the infringement must be fixed at 12.64 in the case of paraffin waxes (12 years, 7 months and 28 days) and at 6.53 in the case of slack wax (6 years, 6 months and 12 days).
Following the application of the coefficient of 1.7 for deterrence, the amount of the fine is set at EUR 121 626 710 for paraffin waxes and EUR 3 833 132 for slack wax, so that the total amount of the fine imposed on the applicant is EUR 125 459 842.
Last, the Court considers, in the exercise of its unlimited jurisdiction, that the amount of the fine as thus set is appropriate, in the light of the gravity and the duration of the infringement committed by the applicant.
Costs
Under Article 87(3) of the Rules of Procedure, the Court may order that costs be shared or that the parties bear their own costs if each party succeeds on some and fails on other heads.
In the present case, a single plea put forward by the applicant, out of 11 pleas in the application, has been upheld. In addition, it should be observed that the size of the application exceeded by more than 40% the maximum number of pages of pleadings, as determined in paragraph 15 of the Practical directions to parties. Accordingly, it is fair in the circumstances of the case to decide that the applicant is to bear nine tenths of its own costs and pay nine tenths of the Commission’s costs. The Commission will bear one tenth of its own costs and pay one tenth of those incurred by the applicant.

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

1.
Sets the amount of the fine imposed on Total Raffinage Marketing in Article 2 of Commission 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) at EUR 125 459 842;

2.
Dismisses the action as to the remainder;

3.
Orders Total Raffinage Marketing to bear nine tenths of its own costs and to pay nine tenths of the costs of the European Commission and orders the Commission to bear one tenth of its own costs and to pay one tenth of the costs incurred by Total Raffinage Marketing.

Czúcz
Labucka
O’Higgins
Delivered in open court in Luxembourg on 13 September 2013.
[Signatures]
(
*1
)	Language of the case: French.