CELEX: 62010TJ0418
Competition
Agreements, decisions and concerted practices
European market for prestressing steel
Price fixing, market sharing and the exchange of commercially sensitive information
Single, complex and continuous infringement
Agency agreement
Imputability to the principal of the unlawful conduct of the agent
Lack of awareness by the principal of the unlawful conduct of the agent
Participant in a component of the infringement and awareness of the overall plan
2006 Guidelines on the method of setting fines
Proportionality
Principle that penalties must fit the individual offender
Unlimited jurisdiction

Subject-matter of the dispute
The present action has been brought against Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/38344 — Prestressing Steel), imposing penalties on a cartel between suppliers of prestressing steel (‘PS’) who took part in quota-fixing, customer-sharing, price-fixing and the exchange of commercially sensitive information relating to price, volume and customers at European, regional and national levels.
The initial decision was addressed by the European Commission to:
—
ArcelorMittal SA,
—
ArcelorMittal Wire France SA,
—
ArcelorMittal Fontaine SA,
—
ArcelorMittal Verderio Srl,
—
Emesa-Trefilería, SA (‘Emesa’),
—
Industrias Galycas, SA (‘Galycas’),
—
ArcelorMittal España, SA,
—
Trenzas y Cables de Acero PSC, SL (‘Tycsa’),
—
Trefilerías Quijano SA (‘TQ’),
—
Moreda-Riviere Trefilerías, SA (‘MRT’),
—
Global Steel Wire, SA (‘GSW’),
—
Socitrel — Sociedade Industrial de Trefilaria, SA (‘Socitrel’),
—
Companhia Previdente — Sociedade de Controle de Participações Financeiras, SA (‘Companhia Previdente’),
—
voestalpine Austria Draht GmbH, now voestalpine Wire Rod Austria GmbH, the second applicant (‘Austria Draht’),
—
voestalpine AG, the first applicant,
—
Fapricela Indústria de Trefilaria, SA (‘Fapricela’),
—
Proderac — Productos Derivados del Acero, SA (‘Proderac’),
—
Westfälische Drahtindustrie GmbH (‘WDI’),
—
Westfälische Drahtindustrie Verwaltungsgesellschaft mbH & Co. KG (‘WDV’),
—
Pampus Industriebeteiligungen GmbH & Co. KG (‘Pampus’),
—
Nedri Spanstaal BV (‘Nedri’),
—
Hit Groep BV,
—
DWK Drahtwerk Köln GmbH and Saarstahl AG (together ‘DWK’),
—
Ovako Hjulsbro AB,
—
Ovako Dalwire Oy AB,
—
Ovako Bright Bar AB,
—
Rautaruukki Oyj,
—
Italcables SpA (‘ITC’),
—
Antonini SpA,
—
Redaelli Tecna SpA (‘Redaelli’),
—
CB Trafilati Acciai SpA (‘CB’),
—
ITAS — Industria Trafileria Applicazioni Speciali SpA (‘Itas’),
—
Siderurgica Latina Martin SpA (‘SLM’),
—
Ori Martin SA,
—
Emme Holding SpA, formerly and then again called Trafileria Meridionali SpA (‘Trame’).
The initial decision was twice amended by the Commission.
First, on 30 September 2010 the Commission adopted Decision C(2010) 6676 final amending the initial decision (‘the first amending decision’). In essence, the first amending decision had the effect of reducing the amount of the fines imposed on the following companies: ArcelorMittal Verderio, ArcelorMittal Fontaine and ArcelorMittal Wire France, ArcelorMittal España, WDI and WDV.
The first amending decision was addressed to all the addressees of the initial decision.
Second, on 4 April 2011 the Commission adopted Decision C(2011) 2269 final amending the initial decision (‘the second amending decision’). In essence, the second amending decision had, in particular, the effect of reducing the amount of the fines imposed on the following companies: first, ArcelorMittal, ArcelorMittal Verderio, ArcelorMittal Fontaine and ArcelorMittal Wire France; and, second, SLM and Ori Martin. Only those companies were addressees of the second amending decision.
Where appropriate, on the Court’s initiative, all the companies which had brought an action against the initial decision were notified of both amending decisions.
Voestalpine and Austria Draht were questioned by the Court as to the consequences that might be drawn from those amendments of the initial decision for the content of their initial argument and had the opportunity to amend the form of order sought in order to take account of those possible consequences.
Thus, the initial decision, as amended by the first and second amending decisions, constitutes, for the purposes of the present action, ‘the contested decision’.
Twenty eight actions were brought against the initial decision, the first amending decision, the second amending decision or letters sent by the Commission following requests from certain addressees of the initial decision seeking a reappraisal of their ability to pay (Cases T‑385/10
ArcelorMittal Wire France and Others
v
Commission
; T‑388/10
Productos Derivados del Acero
v
Commission
; T‑389/10
SLM
v
Commission
; T‑391/10
Nedri Spanstaal
v
Commission
; T‑393/10
Westfälische Drahtindustrie and Others
v
Commission
; T‑398/10
Fapricela
v
Commission
; T‑399/10
ArcelorMittal España
v
Commission
; T‑406/10
Emesa-Trefilería and Industrias Galycas
v
Commission
; T‑413/10
Socitrel
v
Commission
; T‑414/10
Companhia Previdente
v
Commission
; T‑418/10
voestalpine and voestalpine Wire Rod Austria
v
Commission
; T‑419/10
Ori Martin
v
Commission
; T‑422/10
Trafilerie Meridionali
v
Commission
; T‑423/10
Redaelli Tecna
v
Commission
; T‑426/10
Moreda-Riviere Trefilerías
v
Commission
; T‑427/10
Trefilerías Quijano
v
Commission
; T‑428/10
Trenzas y Cables de Acero
v
Commission
; T‑429/10
Global Steel Wire
v
Commission
; T‑436/10
Hit Groep
v
Commission
; T‑575/10
Moreda-Riviere Trefilerías
v
Commission
; T‑576/10
Trefilerías Quijano
v
Commission
; T‑577/10
Trenzas y Cables de Acero
v
Commission
; T‑578/10
Global Steel Wire
v
Commission
; T‑438/12
Global Steel Wire
v
Commission
; T‑439/12
Trefilerías Quijano
v
Commission
; T‑440/12
Moreda-Riviere Trefilerías
v
Commission
; T‑441/12
Trenzas y Cables de Acero
v
Commission
; and T‑409/13
Companhia Previdente and Socitrel
v
Commission
).
Background to the dispute
I –
The sector to which the proceedings relate
A –
Product
The cartel in respect of which the Commission imposed sanctions concerned PS. That expression refers to metal wires and strands made of wire rod and, in particular, (a) steel used for prestressed concrete, which is used in making balconies, foundation piles and pipes, and (b) steel used for post-tensioned concrete, which is used in structural engineering, underground engineering and bridge-building (contested decision, recital 2).
The PS product range includes several types of single wires (for example smooth, bright or galvanised wires, indented wires and ribbed wires) and several types of strands (for example, bright, indented, polythene-coated or metallic coated). PS strands are composed of three or seven wires. PS is sold in several diameters. However, special strands, that is to say, galvanised or sheathed — greased or waxed –, and stays, that is to say, galvanised, coated strand and galvanised wire used in bridge-building, were not taken into consideration by the Commission (contested decision, recitals 3 and 4).
It is also stated in the contested decision that in many countries technical approval by national authorities is mandatory. The certification procedures take around six months (contested decision, recital 5).
B –
The supply structure
Taken together, and according to the contested decision, the members of the cartel controlled around 80% of sales within the European Economic Area (EEA). In most countries several of the larger producers were present along with some local producers. Most of those larger producers were part of metallurgical groups which also produced wire rod, a raw material of PS and its most important cost element. Whereas non-integrated companies were obliged to purchase their own raw materials on the market, integrated undertakings generally relied on supplies within their group. Throughout the period of the cartel found in the contested decision, the industry reported substantial and lasting overcapacities of PS (contested decision, recitals 98 and 99).
In 2001, the value of PS sales in the EEA came to approximately EUR 365 million, for a total volume of around 600000 tonnes for that year. Those sales were, for 20% to 25%, of PS wire and, for 75% to 80%, of PS strand, those averages being slightly different from country to country. Italy was the country with the highest consumption of PS (around 28% of PS sales within the EEA). Other large consuming countries were Spain (16%) and the Netherlands, France, Germany and Portugal (8% to 10% each) (contested decision, recital 100).
C –
The demand structure
According to the contested decision, the demand structure for PS was very heterogeneous. Producers of prefabricated building materials and specialised engineering companies use PS, for example in constructions designed to stabilise buildings or bridges. The clientele consisted of a very small number of large customers — for example, Addtek International Oy AB (‘Addtek’), which has since become Consolis Oy AB, which represented 5% to 10% of PS consumption within the European Union — and a large number of smaller customers (contested decision, recitals 101 and 102).
Commercial habits varied from one Member State to another. PS producers and their customers often concluded six- or 12-month framework contracts. Thereafter, depending on demand, customers ordered tonnages within the volume agreed at the agreed price. Contracts were regularly extended following further negotiations (contested decision, recital 103).
D –
Trade within the European Union and the EEA
As reported in the contested decision, sales volumes of PS during the period affected by the cartel show that trade between EU Member States was intensive. PS was produced and marketed throughout the EEA (contested decision, recital 104).
II –
Voestalpine and Austria Draht
Austria Draht is an Austrian producer of strands. From 24 February 1988 until 3 December 2002, its capital was owned as to 95% by Voest-Alpine Stahl Gesellschaft mbH and as to 5% by Donauländische Baugesellschaft mbH. Following an internal restructuring, on 3 December 2002, voestalpine Bahnsysteme GmbH, the full legal successor of Voest-Alpine Stahl Gesellschaft, acquired 99.95% of Austria Draht’s share capital. Both Voest-Alpine Stahl Gesellschaft and voestalpine Bahnsysteme are wholly-owned subsidiaries of the Austrian company voestalpine (contested decision, recitals 44 and 45).
In Italy, Austria Draht entrusted sales of PS to an agent, the Italian company Studio Crema CAP Srl (‘Studio Crema’), which was managed and represented by Mr G. Mr G. was not authorised to sign contracts with Austria Draht’s customers, which were always concluded directly by Austria Draht (contested decision, recital 46).
During its 1 April 2001 to 31 March 2002 business year, voestalpine had a turnover of around EUR 18.27 million within the EEA in the PS sector taken into consideration by the Commission. That turnover resulted exclusively from sales by Austria Draht. During the fiscal year 1 April 2009 to 31 March 2010, voestalpine’s worldwide consolidated turnover was EUR 8.55 billion (contested decision, recital 47).
III –
Administrative procedure
On 9 January 2002, the Bundeskartellamt (the German competition authority) sent the Commission documents relating to a case before a German local labour court concerning the dismissal of a former WDI employee. That employee asserted that he had been involved in an infringement of Article 101 TFEU concerning PS. In that context, he provided an account of the undertakings involved and first information about the infringement (contested decision, recital 105).
A –
First leniency application and immunity granted to DWK
On 18 June 2002, DWK submitted a statement to the Commission relating to an infringement of Article 101 TFEU concerning PS, which involved DWK and other undertakings. In that context, DWK made clear that it expected to benefit from the Commission Notice of 19 February 2002 on immunity from fines and reduction of fines in cartel cases (
OJ 2002 C 45, p. 3
; ‘the Leniency Notice’) (contested decision, recital 106).
On 3 July 2002, representatives of DWK met the Commission and discussed the leniency programme. On 19 July 2002, the Commission granted DWK conditional immunity from fines under point 8(b) of the Leniency Notice, since it was the first to submit evidence which would enable the Commission to find an infringement of Article 101 TFEU in connection with an alleged EU-wide cartel of PS producers (contested decision, recital 107).
B –
Inspections and requests for information
On 19 and 20 September 2002, the Commission conducted inspections at the premises of, among others, DWK, WDI, Nedri, Tréfileurope, Tycsa, Redaelli, CB, Itas, ITC, SLM and Edilsider (the company belonging to a sales agent of Tréfileurope Italia Srl, which subsequently became ArcelorMittal Verderio), together with their respective subsidiaries or associated undertakings, in accordance with Article 14(2) and (3) of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [101 TFEU] and [102 TFEU] (OJ, English Special Edition 1959-1962, p. 87) (contested decision, recital 108).
Beginning on 19 September 2002, the Commission sent a number of requests for information, pursuant to Article 11 of Regulation No 17 and Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (
OJ 2003 L 1, p. 1
), to the undertakings to which the initial decision was addressed, their parent companies, other undertakings, certain individuals (a retired employee of Redaelli, and subsequently its commercial advisor, and a sales agent of Tréfileurope, via Edilsider) and certain trade associations (contested decision, recital 109).
On 7 and 8 June 2006, the Commission conducted an inspection pursuant to Article 20 of Regulation No 1/2003 at the premises (‘studio’) of a family member of a former employee of Redaelli (contested decision, recital 114).
C –
Other leniency applications and the Commission’s replies
Some of the addressees of the contested decision, such as ITC, Nedri, SLM, Redaelli and WDI, submitted official leniency applications pursuant to the Leniency Notice. Tycsa confirmed the existence of the anti-competitive arrangements, but did not apply for leniency (contested decision, recital 110).
ITC applied for leniency on 21 September 2002, submitting contemporaneous evidence concerning the meetings held between PS producers between 1979 and 2002. On 11 November 2002 it also submitted a corporate statement. On 10 January 2003 the Commission granted ITC a provisional reduction of fines in the order of 30% to 50%, on condition that it continued to satisfy the conditions laid down in paragraph 21 of the Leniency Notice (contested decision, recital 111).
On 17 October 2002, Tycsa replied to a request for information, acknowledging the facts and providing self-incriminating evidence. On 21 October 2002, in reply to a request for information, Redaelli submitted self-incriminating evidence and on 20 March 2003 it submitted a formal application to benefit from the Leniency Notice. On 23 October 2002, in reply to a request for information, Nedri submitted evidence, at the same time requesting to benefit from the Leniency Notice. On 30 October 2002, while replying to a request for information, SLM applied for a reduction of fines. On 4 November 2002, and subsequently on 6 March 2003 and 11 June 2003, Tréfileurope submitted self-incriminating information in reply to a request for information and also a corporate statement seeking to benefit from the Leniency Notice. On 17 March 2004, Galycas replied to a request for information, acknowledging the facts and making certain incriminating statements. On 17 March 2004, WDI submitted a corporate statement seeking to benefit from the Leniency Notice. On 28 June 2007, in the course of other contacts with the Commission, ArcelorMittal submitted an application for leniency, containing mainly the contemporaneous handwritten notes of a former employee of Emesa, covering the period 1992 to 2002 (contested decision, recital 112).
Following the leniency applications, the Commission sent ArcelorMittal, Nedri and WDI letters dated 19 September 2008, in which it informed them that immunity from fines was not available and that, pursuant to point 26 of the Leniency Notice, it intended to apply a reduction of fines within the limits prescribed in point 23(b) of that notice. On the same day, the Commission also sent letters to Redaelli and SLM, rejecting their leniency applications (contested decision, recital 113).
D –
Initiation of the procedure and statement of objections
On 30 September 2008, the Commission adopted a statement of objections, which was directed at a number of companies, including voestalpine and Austria Draht.
All the addressees of the statement of objections submitted written observations in reply to the objections raised by the Commission.
E –
Access to the file, hearing and ability to pay
The addressees of the statement of objections were able to have access to the Commission’s file, in the form of a copy on DVD. At the same time, those companies also received a list of the documents in the investigation file, indicating the extent to which each document was accessible. They were informed that the DVD gave them access to all the documents which the Commission had been able to obtain during the investigation, apart from documents or parts of documents containing business secrets and other confidential information. Access to the documents related to leniency was granted at the Commission’s premises.
A hearing took place on 11 and 12 February 2009. All the addressees of the statement of objections, apart from HIT Groep, Emesa and Galycas, took part.
Fourteen undertakings also claimed that they were unable to pay, within the meaning of point 35 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’). They submitted evidence in support of their claims.
F –
Requests for further information
The Commission subsequently sent requests for information to GSW, MRT, Tycsa, TQ, Companhia Previdente and Socitrel, in order to clarify certain points concerning, in particular, their corporate structure. Those companies replied between 6 March and 15 April 2009.
The Commission also sent requests for information to all the addressees of the initial decision, in order to establish the value of sales of the relevant products and also the group turnover. All the addressees replied to those requests.
IV –
Contested decision
The contested decision relates to a cartel of PS suppliers that participated in quota fixing, customer sharing, price fixing and exchanging of sensitive commercial information relating to price, volume and customers at European (Zurich Club, Club Europe, etc.) regional and national (Club Italian, Club España) level. According to recital 1 to the contested decision, those undertakings thereby committed a single continuous infringement of Article 101(1) TFEU and, from 1 January 1994, of Article 53(1) of the EEA Agreement. The illegal conduct lasted from at least the beginning of 1984 until 19 September 2002.
The investigation involved 18 undertakings. At recitals 122 to 133 to the contested decision, the cartel arrangements forming the subject-matter of the procedure are described in general terms, set out at paragraph 67 et seq. below.
Voestalpine and Austria Draht are both held liable for their participation in the cartel between 15 April 1997 and 19 September 2002 (contested decision, Article 1).
For that infringement, voestalpine and Austria Draht received, jointly and severally, a fine of EUR 22 million (contested decision, Article 2).
Procedure and forms of order sought
By application lodged at the Court Registry on 15 September 2010, voestalpine and Austria Draht brought the present action.
By decision of 29 October 2010, the Court (First Chamber) informed the applicants that they could adapt their pleas and the form of order sought in order to take account of the amendments made by the first amending decision.
Voestalpine and Austria Draht did not submit observations on the first amending decision in their reply, which was lodged on 1 June 2011.
By decision of 6 June 2011, the Court asked the Commission to provide it with certain documents.
On 29 June 2011, the Commission issued the second amending decision.
On 1 August 2011, voestalpine and Austria Draht submitted their observations on the second amending decision.
On 14 October 2011, voestalpine and Austria Draht submitted a letter, which was placed on the file on 8 November 2011, to which, in reliance on Article 66(2) of the Rules of Procedure of the General Court of 2 May 1991, they attached documents amplifying the offers of proof in support of the explanations supplied in the application.
The documents in question constitute statements, drawn up and communicated following the lodging of the reply, whereby a manager of Redaelli, a manager of SLM and a manager employee of ITC assert that Mr G. did not represent the applicants at Club Italia meetings.
In the abovementioned letter of 14 October 2011, voestalpine and Austria Draht also ask the Court to adopt a measure of inquiry within the meaning of Article 68(1) of the Rules of Procedure of 2 May 1991, with the aim of the abovementioned managers of Redaelli and SLM being examined as witnesses.
The written procedure was initially closed on 20 October 2011, when the Commission lodged, in the language of the case, the rejoinder and its comments on the observations submitted by voestalpine and Austria Draht on the second amending decision.
On 24 November 2011, the Commission submitted its observations on voestalpine’s and Austria Draht’s letter of 14 October 2011, placed on the file on 8 November 2011, which had entailed the re-opening of the written procedure.
On 24 February 2012, the Commission submitted a corrigendum to the rejoinder.
The composition of the Chambers of the Court having been altered as from 23 September 2013, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present case was therefore assigned on 3 October 2013.
The preliminary report referred to in Article 52(2) of the Rules of Procedure of 2 May 1991 was communicated to the Sixth Chamber on 19 March 2014.
On 28 April 2014, in the context of measures of organisation of procedure adopted under Article 64 of its Rules of Procedure of 2 May 1991, the Court asked the parties to answer a series of questions and the Commission to produce certain documents, including a copy of the file communicated to the applicants during the administrative procedure.
On 13 June 2014, the parties submitted their replies to those requests.
On 16 July 2014, in the context of measures of inquiry adopted under Article 65 of its Rules of Procedure of 2 May 1991, the Court directed the Commission to produce the documents which it had refused to produce in reply to the measures of organisation of procedure adopted on 28 April 2014.
On 23 July 2014, the Commission produced the requested documents, to which the applicants were given access before the hearing.
The parties presented oral argument and answered the written and oral questions put by the Court at the hearing on 2 October 2006.
Voestalpine and Austria Draht claim that the Court should:
—
annul the contested decision;
—
in the alternative, reduce the fine imposed on them and set in Article 2 of the contested decision;
—
order the Commission to pay the costs.
The Commission contends that the Court should:
—
dismiss the appeal in its entirety;
—
order the applicants to pay the costs.
Law
In essence, voestalpine and Austria Draht take issue with the Commission for having imposed a fine of EUR 22 million on them for having participated in a single, complex and continuous infringement, namely a ‘complex of agreements and concerted practices in the [PS] sector in the internal market’ (‘the cartel’ or ‘the single infringement’), consisting so far as the applicants were concerned:
—
in particular, in Austria Draht’s participation in Club Italia, one of the regional agreements of the cartel, through its agent in Italy, Mr G., who also worked for another member of the cartel (CB);
—
furthermore, in Austria Draht’s sporadic involvement, shown by clear indicia, in anti-competitive discussions at European level, which meant that it was aware of the European level of the cartel at an early stage.
In that context, the applicants criticise, in the first plea, the fact that the unlawful conduct of Austria Draht’s agent for Italy was imputed to the principal, on the ground that such imputation of liability infringes Article 101 TFEU and Article 53 of the EEA Agreement, and, in the second plea, the finding that Austria Draht participated in a single infringement. Apart from the fact that Austria Draht was never aware of the unlawful conduct of its agent within Club Italia, it was also always unaware of the European dimension of the cartel. Austria Draht was never associated with the pan-European cartel arrangements from which in any case it always distanced itself.
Those observations on the single infringement lead the applicants to challenge, in the third plea, the fine and the amount thereof. In particular, the applicants claim that the fine is disproportionate, since they were not aware of the unlawful conduct of Austria Draht’s agent for Italy (Club Italia) and they did not participate in the other components of the cartel (Club Zurich, Club Europe, Club España, the allocation of the customer Addtek, etc.). In any event, the value of the sales to be taken into consideration when determining the amount of the fine could therefore not be the value of the applicants’ European PS sales.
I –
Preliminary observations
A –
Content of the contested decision
It follows from Article 1 of the contested decision that voestalpine and Austria Draht infringed Article 101 TFEU and, from 1 January 1994, Article 53 of the EEA Agreement by participating, from 15 April 1997 to 19 September 2002, in a ‘continuing agreement and/or concerted practice in the [PS] sector in the internal market and, as of 1 January 1994, within the EEA’.
1. Components of the cartel and characterisation of the single infringement
In recital 122 to the contested decision, the cartel is described as ‘a pan-European arrangement, consisting of a Zurich and a European phase, and/or, as the case may be, in national/regional arrangements’. Recitals 123 to 135 to the contested decision set out briefly those different agreements and concerted practices, which are subsequently described in detail and assessed under Article 101 TFEU and Article 53 of the EEA Agreement.
Put simply, the cartel was composed of the following arrangements:
—
the Zurich Club, or the first phase of the pan-European agreement. That agreement lasted from 1 January 1984 until 9 January 1996 and concerned quota-fixing by country (Germany, Spain, France, Italy, Austria and Benelux), customer-sharing, prices and the exchange of commercially sensitive information. Its members were Tréfileurope, Nedri, WDI, DWK and Redaelli, which represented several Italian undertakings at least from 1993 and 1995, subsequently joined by Emesa in 1992 and Tycsa in 1993;
—
Club Italia, a national arrangement that lasted from 5 December 1995 to 19 September 2002. That agreement concerned the fixing of quotas for Italy and also exports from Italy to the rest of Europe. Its members were the Italian undertakings Redaelli, ITC, CB and Itas, subsequently joined by Tréfileurope and Tréfileurope Italia (on 3 April 1995), SLM (on 10 February 1997), Trame (on 4 March 1997), Tycsa (on 17 December 1996), DWK (on 24 February 1997) and Austria Draht (on 15 April 1997);
—
the Southern Agreement, a regional arrangement negotiated and concluded in 1996 by the Italian undertakings Redaelli, ITC, CB and Itas, with Tycsa and Tréfileurope in order to determine the penetration rate of each of the participants in the Southern countries (Belgium, Spain, France, Italy and Luxembourg) and to undertake to negotiate quotas jointly with the other Northern European producers;
—
Club Europe, or the second phase of the pan-European agreement. That agreement was concluded in May 1997 by Tréfileurope, Nedri, WDI, DWK, Tycsa and Emesa (known as ‘the permanent members’ or ‘the six producers’) and ended in September 2002. The agreement was intended to overcome the crisis in the Zurich Club, to share new quotas (calculated over the period from the third quarter of 1995 to the first quarter of 1997), to share customers and fix prices. The six producers agreed on coordination rules, including the appointment of coordinators responsible for the implementation of the arrangements in several countries and for coordination with other interested companies active in the same countries or in respect of the same customers. Their representatives regularly met at different levels in order to monitor the implementation of the arrangements. They exchanged commercially sensitive information. In the event of discrepancy with the agreed trade behaviour, a compensation scheme was applied.
—
coordination in respect of the customer Addtek. In the context of that pan-European arrangement, the six producers, joined occasionally by the Italian producers and Fundia, also maintained bilateral (or multilateral) contacts and participated in price-fixing and customer-sharing on an ad hoc basis, if it was in their interest to do so. For example, Tréfileurope, Nedri, WDI, Tycsa, Emesa, CB and Fundia coordinated together on prices and volumes for the customer Addtek. Those projects related mainly to Finland, Sweden and Norway, but also the Netherlands, Germany, the Baltic States and Central and Eastern Europe;
—
discussions between Club Europe and Club Italia. During the period between at least September 2000 and September 2002, the six producers, and also ITC, CB, Redaelli, Itas and SLM met regularly with the aim of integrating the Italian companies into Club Europe as permanent members. The Italian undertakings wished to increase the Italian quota in Europe, while Club European maintained the status quo. To that end, meetings were held within Club Italia in order to define a uniform position, meetings were held within Club Europe in order to examine that position and define its own position, and meetings were held between participants in Club Europe and Italian representatives in order to agree on the allocation of the Italian quota on a specific market. The undertakings involved exchanged commercially sensitive information. For the purposes of redistributing the European quota with the aim of including the Italian producers, those undertakings agreed to use a new reference period (from 30 June 2000 to 30 June 2001). Those undertakings also reached an understanding on the overall volume of exports to Europe by the Italian undertakings, which the Italian undertakings shared among themselves for each country. At the same time, they discussed prices, as the members of Club Europe sought to adopt, on a European scale, the price-fixing mechanism applied within Club Italia;
—
Club España. Alongside the pan-European arrangement and Club Italia, five Spanish undertakings (Trefilerías Quijano, Tycsa, Emesa, Galycas and Proderac, the latter from May 1994) and two Portuguese undertakings (Socitrel, from April 1994, and Fapricela, from December 1998) agreed, for Spain and Portugal, and for a period from at least December 1992 until September 2002, to keep their market shares stable and to fix quotas, to allocate customers, including for public works contracts, and to fix prices and payment conditions. In addition, they exchanged commercially sensitive information.
In the Commission’s view, all the arrangements described in paragraph 69 above display the characteristics of a single infringement of Article 101 TFEU and Article 53 of the EEA Agreement (contested decision, recitals 135 and 609 and section 12.2.2).
In particular, the Commission considered that the abovementioned arrangements were part of an overall scheme which laid down the lines of action of the cartel members in all the geographic areas and that those undertakings ‘restricted their individual commercial conduct in order to pursue an identical anti-competitive object and a single identical anti-competitive economic aim, namely to distort or eliminate normal competitive conditions for PS in the EEA, and to establish an overall equilibrium, notably by fixing quotas and prices, allocating customers and exchanging sensitive commercial information’ (contested decision, recital 610 and section 9.3).
The Commission stated in that respect:
‘The plan, which was subscribed to by DWK, WDI, Tréfileurope, Nedri, Tycsa, Emesa, Fundia, Austria Draht, Redaelli, CB, ITC, Itas, SLM, Trame, Proderac, Fapricela, Socitrel, Galycas and Trefilerías Quijano (not all at the same time), was developed and implemented over a period that lasted at least 18 years, through a complex of collusive arrangements, specific agreements and/or concerted practices, pursuing the same common purpose of restricting competition between them and using similar mechanisms to pursue this common purpose (see section 9.3.1). Even at times when an arrangement did not work smoothly, other arrangements continued to function normally’ (contested decision, recital 612).
2. Evidence taken into consideration in respect of Austria Draht and voestalpine
Austria Draht and voestalpine were found to have participated in the cartel referred to in Article 1 of the contested decision during the period from 15 April 1997 until 19 September 2002.
The main factors on which their participation was established are as follows.
a) Contract with Mr G.
It is apparent from the contested decision that, from 1984, Austria Draht entrusted its marketing and sales in Italy to an agent, Studio Crema, which was managed and represented by Mr G. Mr G. was not authorised to sign contracts, which were always concluded directly between Austria Draht and the customer by express confirmation of any order placed with Mr G. (contested decision, recital 46).
b) Club Italia (from 15 April 1997 to 19 September 2002)
The Commission considered that Austria Draht had participated in Club Italia from 15 April 1997 to 19 September 2002 (contested decision, recitals 124 and 385 et seq., and recitals 479 to 483 of section 9.2.1.8, entitled ‘Individual participation in Club Italia’).
In particular, it is apparent from the contested decision that ‘[n]umerous contemporaneous documents and corroborative statements of ITC, Redaelli, Itas, CB, SLM, Tréfileurope and DWK show that between at least early 1995 [and] the date of the Commission’s inspections on 19 and 20 September 2002 … CB, ITC, Itas, Redaelli, Tréfileurope and Tréfileurope Italia, Tycsa, SLM, Trame and the pan-European producers DWK and Austria Draht attended anti-competitive meetings at which they engaged in: (1) disclosure and exchange of commercially sensitive information, in particular relating to customers, pricing and sales volumes, (2) market allocation through quota fixing both within the Italian market and regarding exports from Italy to the rest of Europe …, (3) price fixing reacting to the raw material cost development, including the fixing of minimum prices/price increases in Italy and the other European countries and of a surcharge (“extra”) … and (4) customer allocation’. In addition, ‘[a] monitoring system through an independent third party, …, as well as a compensation mechanism were also well in place …’ (contested decision, recital 385).
In order to establish Austria Draht’s individual participation in Club Italia, the Commission stated that it had evidence that that undertaking ‘systematically participated in over 40 meetings of Club Italia between 15 April 1997 and 19 September 2002 and [that on] several occasions, its absence was explicitly mentioned, indicating that it was expected to attend the meetings’ (contested decision, recital 479).
In a footnote to the contested decision, the Commission referred, in particular, to two sets of meetings: first, to ‘at least’ 14 meetings at which Mr G. was present and at which Austria Draht’s case was discussed and, second, to ‘another 16 meetings’ at which Austria Draht’s case was discussed in Mr G.’s absence. In that regard, the Commission observed as follows:
‘Annex 3 [to the contested decision]: In at least 14 meetings Mr [G.] is present and Austria Draht’s case is discussed: 15.04.1997 (quota/customer allocation and price fixing); 24.06.1997 (search for a “market equilibrium” and information exchange on prices); 11.03.1998 (quota allocation and price fixing discussions, Austria Draht mentioned but without entries); 30.03.1998 (quota allocation discussions); 18.05.1998 (quota allocation and price fixing discussions); 19.10.1998 (customer allocation); 18.01.1999 (quota allocation and price fixing discussions); 14.12.1999 (quota allocation discussions); 12.01.2000 (quota allocation discussions); 19.09.2000 (quota allocation discussions); 10.06.2001 (quota allocation); 23.10.2001 (Austria Draht mentioned but without entries); 11.01.2002 (information exchange on past year and tentative quota allocation for 2002), 30.04.2002 (it is expressly stated that Mr [G.] should guarantee the quantity otherwise [Austria Draht] would be “kicked out” by Summer); In the evidence of another 16 meetings, Mr [G.]’s presence is not mentioned (in a few meetings he is explicitly reported as absent) but Austria Draht’s data are nevertheless discussed: 07.04.1997 (quota allocation, information exchange); 13.05.1997 (information exchange, i.e. that Mr [G.] has offered a particular price to a client (named) further to an explicit order from Austria Draht); 14.10.1997 (quota allocation discussions); 16.12.1997 (quota allocation discussions, information exchange); 22.12.1997 and 14.01.1998 (tables with detailed data on Austria Draht, quota and customer, …; 16.07.1998 (Austria Draht mentioned but without concrete entries); 06.05.1999 (fax on allocation of customers and quota for amongst others Austria Draht); 13.05.1999 (information exchange); 31.05.1999 (quota allocation discussions); 10.07.2000 (quota allocation discussions); 27.09.2000 (information exchange); 13.07.2001 (e-mail containing a detailed excel list of quota and customer allocation of strands per company for 2001) and 04.02.2002 (e-mail containing a detailed excel list of proposals for quota and customer allocation of strand per company for 2002); 23.07.2001 (quota allocation discussions); 25.07.2001 (quota allocation discussions/information exchange).’
That footnote also refers to a third series of meetings or internal notes:
‘In [nine] meetings (or internal notes) Mr [G.] is explicitly mentioned as the representative of Austria Draht: 15.04.1997; 12.05.1997; 13.05.1997; 24.06.1997; 22.10.1997; 11.03.1998; 18.05.1998; 29.11.1999 and 17.01.2000. Austria Draht is explicitly reported absent, again showing that its presence was expected, in the meetings of 07.09.1998 and 12.07.1999; in the meeting of 14.10.1997 Mr [G.]’s absence was considered [to be] unjustified, and in the meeting of 15.05.2002 it was expressly requested that Mr [G.] would be present at the meeting of 5/6.06.2002. Note also the meetings where it was stated that Austria Draht had to be contacted: 20.09.1999 and Summer 2002.’
As for the beginning of Austria Draht’s individual participation in Club Italia, the Commission stated that:
‘In 1996 and before, Austria Draht did not participate in the Italian arrangement, as appears from the minutes of a meeting of 13.02.1996 … However, the Commission has clear proof that Austria Draht started participating in Club Italia as of 1997, and at the latest on 15.04.1997 when it was explicitly reported present through its sales agent Mr [G.] … At that meeting, a quota was allocated to Austria Draht and it was explicitly stated that Austria Draht would not supply a particular group of customers (named) … This meeting must be seen in the context of the meetings which took place just before and thereafter: (i) at the meeting of 17.12.1996, a table was circulated indicating the allocation of tons per client and the appointment of lead suppliers for a number of clients on the Italian market for 1997. Despite the fact that the columns for Austria Draht were left blank, the fact that Austria Draht was considered in the table is an indication that discussions between parties were at least envisaged; (ii) This finds confirmation in the meeting of 04.03.1997 where information on Austria Draht’s volume on the Italian market was exchanged; (iii) Even if Austria Draht was not reported present on 07.04.1997, the Commission notes that concrete volume was allocated to Austria Draht; (iv) A report on a visit of Tréfileurope to CB of 24.06.1997 confirms that anti-competitive discussions with Austria Draht were ongoing and that Austria Draht was acting “through Mr [G.]”. Given this context, the Commission considers 15.04.1997 as the starting date of Austria Draht’s participation in Club Italia’ (contested decision, recital 480).
As regards the imputation of Mr G.’s conduct to Austria Draht, the Commission stated the following at recitals 481 to 483 to the contested decision:
‘(481)
The fact that Austria Draht participated in the meetings in Club Italia via its sales agent, Mr [G.], is confirmed by the statements of DWK and ITC and by contemporaneous documents from ITC and Tréfileurope. The cartel participants also perceived Austria Draht as part of the cartel through Mr [G.] …
(482)
Austria Draht admits that it had entrusted its entire commercial policy on the Italian market to … Studio Crema (which was represented by its Managing Director Mr [G.]) since 1984. Mr [G.] had a stringent obligation to report to Austria Draht, and he did not bear any financial risks for the transactions and actions undertaken, Austria Draht was solely responsible for all risks associated inter alia with non-delivery, defective delivery and customer insolvency and remunerated Mr [G.] on the basis of a fixed percentage by reference to the volume (by client) it had sold. Mr [G.] had a monthly reporting duty in writing to Austria Draht on its actions, and in particular on the competitors’ activities and the “sales and market relationships” in the representation area (Italy). All the elements above clearly show Austria Draht’s full control over the actions of its agent, Mr [G.] …
(483)
Given the strict agency relationship and Mr [G.]’s regular attendance at the Club Italia meetings on quotas, prices and customers …, it is clear that Mr [G.] communicated sensitive commercial information on Austria Draht’s position to the other Club Italia participants and obtained information at the meetings to the benefit of Austria Draht. The Commission thus considers that Austria Draht participated in Club Italia from 15 April 1997 to 19 September 2002.’
c) Club Europe and pan-European system
In order to establish the single and continuous nature of the infringement that voestalpine and Austria Draht were found to have committed, and in particular their ‘[i]ndividual awareness of participation in a larger scheme’ (see title of section 12.2.2.4 of the contested decision), the Commission proceeded as follows:
‘(652)
Austria Draht admits that it participated in a few Club Europe meetings, but claims that there were no anti-competitive discussions at those meetings. Austria Draht should not be held liable as a direct participant in the Zurich Club or Club Europe … There are, however, clear indications that Austria Draht was sporadically involved in anti-competitive discussions at pan-European level and therefore was aware of the pan-European level of the cartel as of an early stage.
(653)
In 1995-1996, thus well before the date upheld by the Commission as the starting date of Austria Draht’s participation in the infringement (15 April 1997), Austria Draht participated in meetings of the Zurich Club where amongst others the possible organisation of a new European quota arrangement was discussed. Also, in the Club Italia meeting of 16 December 1997 it was noted that Austria Draht “was not part of that Club [Europe] but wanted to be kept informed”. In several other subsequent Club Italia meetings, which Mr [G.], representative of Austria Draht, attended, participants were debriefed on the discussions and agreements in Club Europe … Furthermore, Austria Draht admits that it participated in several Club Europe meetings … Among these, at least the meeting of 28 February 2000 was the occasion for discussions on volume and prices on the European market and at the meeting of 27 September 2001, Austria Draht was invited to join the expanded Club Europe. There are further several indications that during the pan-European expansion period …, Austria Draht was involved in quota and customer allocation discussions regarding particular countries and was present through Mr [G.] in at least six Club Europe expansion meetings including at the meeting of 6 November 2001 at which Mr [G.] was moreover indicated as possible country coordinator for Italy together with Mr [A.] of Itas and Mr [C.] of CB.
(654)
The Commission concludes that Austria Draht, while participating in Club Italia, was or should have been aware that the collusion in this Club was part of an overall plan to stabilize the PS market in order to avoid price decline, which Club Italia shared with the pan-European arrangements.’
3. Addressees of the contested decision and individual duration of liability
In order to define the liability of the companies concerned, the Commission distinguishes, at recitals 769 to 789 to the contested decision, the situation of Austria Draht and that of voestalpine, without contemplating that of Studio Crema.
a) Situation concerning Austria Draht
In order to define Austria Draht’s liability, the Commission considered that the latter had participated directly in Club Italia through its agent in Italy from 15 April 1997 until 19 September 2002 (contested decision, recital 769).
In order to substantiate that assertion, the Commission first of all rejected Austria Draht’s argument that Mr G., its agent in Italy, did not represent it at cartel meetings. Austria Draht relied in that regard on a statement by Mr G., who denies having represented Austria Draht at Club Italia meetings, and on a statement by Tréfileurope Italia’s agent, Mr V., who believes that Austria Draht was not a member of that club and that at the meetings which Mr V. attended Mr G. did not participate in the cartel agreements on behalf of Austria Draht, which was clear to the other participants. Austria Draht also observed that, for only five of the 60 Club Italia meetings cited by the Commission, it was specified that Mr G. had acted on behalf of Austria Draht and that at the other meetings Mr G. was presented as representing CB (without reference to Austria Draht) or without reference to the undertaking represented (contested decision, recital 770).
In response to that argument, the Commission stated that Austria Draht’s ‘involvement in the anti-competitive discussions via its sales agent Mr [G.] [was], however, sufficiently demonstrated: [f]irst, the two statements submitted by Austria Draht are not credible: Mr [G.]’s statement is given post factum, merely prepared in the context of Austria Draht’s reply to the [statement of objections], and Mr [V.]’s statement only gives his personal opinion limited to meetings in which he participated himself. Both statements are moreover contracted by the evidence’ (contested decision, recital 771).
In the Commission’s view, the evidence in question is as follows (contested decision, recital 772):
—
two leniency applicants (DWK and ITC) confirm that Austria Draht participated in the cartel meetings through its sales agent, Mr G.;
—
that is corroborated by a considerable amount of contemporaneous evidence;
—
Austria Draht’s case was regularly discussed and it was allocated quotas and customers throughout the infringement period until the date of the inspections. Thus, Mr G. attended at least 14 meetings at which Austria Draht’s case was discussed; Mr G. was absent from 16 other meetings, but Austria Draht’s data were none the less discussed and, finally, at nine meetings Mr G. was explicitly presented as participating on behalf of Austria Draht;
—
the other cartel participants also clearly perceived Austria Draht as part of the cartel through Mr G. and insisted on the need for Austria Draht’s ‘compliance’ with the cartel;
—
the fact that Mr G. also represented CB at some or several of the meetings listed in Annex 3 to the contested decision does not alter the evidence that he was also representing Austria Draht. It should be noted that at most of the meetings CB itself attended with its own employees, so that Mr G.’s role as representative of CB can be considered less important than his role as representative of Austria Draht, which did not participate directly, but entrusted its entire commercial activity in Italy to Mr G.
In order to counter Austria Draht’s argument that it could not be held liable for Mr G.’s conduct, because there was no economic entity between them, as Mr G. was an independent and non-exclusive sales agent over whom Austria Draht had no possibility of control, the Commission stated the following in the decision (contested decision, recital 774):
—
it is clear from the agency agreement and from Austria Draht’s statement that Mr G. was a genuine agent of Austria Draht;
—
the financial risks for Mr G. were very limited. First, contracts were concluded only between Austria Draht and its customer, and Austria Draht could accept or reject orders negotiated by the agent. Second, Austria Draht was solely responsible for the risks associated with, inter alia, non-delivery, defective delivery and customer insolvency. Third, remuneration was on the basis of a fixed percentage of the volume sold to each customer (reference is then made to paragraph 133 of the judgment of 11 December 2003 in
Minoan Lines
v
Commission
, T‑66/99, ECR, ‘the judgment in
Minoan Lines
’,
EU:T:2003:337
);
—
as they bore no, or limited, financial or commercial risks, Mr G. or Studio Crema must be regarded as an auxiliary organ forming part of Austria Draht’s undertaking. Like a commercial employee, they form an economic unit with that undertaking (reference is then made to paragraph 480 of the judgment of 16 December 1975 in
Suiker Unie and Others
v
Commission
, 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, ECR, ‘the judgment in
Suiker Unie
’,
EU:C:1975:174
);
—
that is in keeping with the Commission Notice of 13 October 2000 — Guidelines on Vertical Restraints (
OJ 2000 C 291, p. 1
, ‘the Guidelines on Vertical Restraints’);
—
consequently, Austria Draht must be held liable for Mr G.’s participation in the cartel meetings.
As regards the fact that Mr G. also acted on behalf of another participant in the cartel, CB, and that the agency was not exclusive in the strict sense, the Commission considered that that did not alter its conclusion, but reinforced it (contested decision, recital 775).
The Commission stated the following in that regard:
‘(775)
Indeed, according to settled case-law, if the agent has a “very considerable amount of business for its own account, as an independent dealer, on the product market in question”, there is no such exclusivity and hence no economic unit with the principal [reference is then made to paragraph 544 of the judgment in
Suiker Unie
]. This is not the case here. Mr [G.] was not active on his own behalf on the market in question, did therefore not conduct a considerable amount of business for his own account as an independent dealer and did not bear significant risks, but rather represented two competitors in the cartel meetings at the same time.
(776)
In the Commission’s view, the fact that two competitors used the same representative in the cartel meetings constitutes a co-ordination enhancing factor, facilitating the cartel behaviour, rather than discharging the principals from their responsibility. A different conclusion would allow companies participating in a cartel through an agent an easy route to escape liability simply by sharing their agent with another cartel participant. In any event, in this case one should also note that CB was mostly present itself at cartel meetings and that, therefore, Mr [G.]/[Studio Crema] generally acted as representative of Austria Draht.’
Last, the Commission noted that ‘the lack of control, awareness or (retroactive) approval of the cartel participation of its agent, which Austria Draht invokes, cannot be valid arguments to escape liability’ (contested decision, recital 777).
The Commission put forward the following arguments in that respect:
—
Austria Draht forms an economic unit with its agent (contested decision, recitals 697, 480 and 481) and is therefore liable for its agent’s participation in the cartel irrespective of Austria Draht’s awareness, control or approval (or lack/absence of awareness, control or approval) [reference is then made to paragraph 54 of the judgment of 15 June 2005 in
Tokai Carbon and Others
v
Commission
, T‑71/03, T‑74/03, T‑87/03 and T‑91/03,
EU:T:2005:220
, and to the judgment of 10 September 2009 in
Akzo Nobel and Others
v
Commission
, C‑97/08 P, ECR,
EU:C:2009:536
) (contested decision, recital 777);
—
furthermore, if an undertaking decides to delegate its commercial activity in a particular country or market to a genuine agent, it is under an obligation to put in place the necessary mechanisms to ensure its control (contested decision, recital 777);
—
in addition, ‘even if there is no direct proof of instructions/debriefings on anti-competitive meetings between Austria Draht and Mr [G.], Austria Draht’s behaviour was influenced by its agent’s participation in the anti-competitive meetings’. The Commission considers that, ‘[i]ndeed, Mr [G.] regularly attended the Club Italia cartel meetings where [he] provided amongst others sensitive commercial information on quotas, prices and customers of Austria Draht to competitors and received similar commercially sensitive information from its competitors and where he also agreed with these competitors on prices, client and quota allocation’. The Commission adds that ‘[t]his information must have influenced Austria Draht’s commercial operation in Italy (through Mr [G.])’. Moreover, ‘it is clear from the agency contract and the internal reports submitted by Austria Draht, that Mr [G.] kept Austria Draht regularly informed about the developments on the Italian market, including as regards competitors and the sales and market relationships in Italy’. Last, it observes that ‘[i]t can therefore be expected that Mr [G.] passed on at least the most relevant commercially sensitive information obtained during cartel meetings to Austria Draht’ (contested decision, recital 778).
Consequently, the Commission considered that ‘Mr [G.] and Austria Draht should be regarded as a single economic entity and Austria Draht should be held liable for Mr [G.]’s cartel participation’ (contested decision, recital 779).
In reply to Austria Draht, moreover, which generally denied having participated in the cartel meetings, the Commission emphasised that the evidence available sufficiently showed that Austria Draht had been involved in Club Italia on a continuous basis, without interruption, as described in recital 772 and Annex 3 to the contested decision (contested decision, recital 780).
Thus, the Commission observed that between September 1998 and summer 2002 Austria Draht had been explicitly reported as absent on a number of occasions, which implied that its present had been expected by the other cartel participants (contested decision, recital 780).
Likewise, the Commission stated that at the meeting of 30 April 2002 the cartel participants had threatened that Austria Draht would be ‘kicked out’ of the cartel if it failed to guarantee volume ‘by Summer (2002)’, which clearly showed that Austria Draht was still participating in the cartel (contested decision, recital 780).
Furthermore, in reply to Austria Draht, which observed, in the first place, that most of the contemporaneous documents relating to quotas, prices or customers in the framework of Club Italia mentioned the core Italian players but not Austria Draht, and that those that did so did not conclusively show Austria Draht’s involvement; in the second place, that it was possible that the references to its supplies in the documents in the file were mere estimations by the other parties, information on its past supplies, information released by customers and data taken from public information, in particular because market transparency was allegedly high and because figures relating to Austria could only concern Austria Draht, since it was the only Austrian producer; and, in the third place, that there was no proof that Mr P. controlled Austria Draht’s figures, the Commission recognised that ‘[n]ot all documents related to Club Italia show[ed] Austria Draht’s participation’. In the Commission’s view, ‘[t]his can be easily explained by the fact that Austria Draht was not a core member of that Club like Redaelli, ITC, CB and Itas … and therefore attended Club Italia meetings to a less regular extent than these core Club Italia participants’. The Commission considered, however, that ‘Austria Draht’s cartel participation was never interrupted between 15 April 1997 and 19 September 2002’ (contested decision, recitals 781 and 782).
In addition, the Commission stated that it was not credible to claim that the information exchanged concerning Austria Draht was publicly available or constituted mere estimations, given the detailed, confidential and recent nature of the information exchanged during the entire period of Austria Draht’s participation in the cartel. According to the Commission, ‘[s]uch information could thus have come only from Austria Draht directly or through its sales agent Mr [G.]’ (contested decision, recital 782).
Last, the Commission considered that ‘the absence of controls by Mr [P.] [a retired employee of Redaelli, subsequently commercial advisor, see paragraph 26 above] [could not] be taken as being a significant, let alone decisive factor, to rebut Austria Draht’s participation in the meetings in light of the evidence against Austria Draht and the fact that Austria Draht was not regarded as a core member of Club Italia so that controls by Mr [P.] [might] have been considered less relevant for it’ (contested decision, recital 782).
In conclusion, the Commission decided that ‘Austria Draht should therefore be held liable for its cartel activities, and in particular for its participation in Club Italia from 15 April 1997 until 19 September 2002’ (contested decision, recital 783).
b) Situation concerning voestalpine
As for voestalpine, the Commission considered that that company must be held jointly and severally liable with Austria Draht for the infringement period between 15 April 1997 and 19 September 2002, since it exercised decisive influence over its subsidiary (contested decision, recitals 784 to 789), which is not disputed by the parties in the present case.
4. Calculation of the amount of the fine imposed on voestalpine and Austria Draht
By way of preliminary observation, the Commission states that the amount of the fine was calculated by reference to the 2006 Guidelines (contested decision, recital 918 et seq.). In the case of voestalpine and Austria Draht, the fine of EUR 22 million was calculated as follows.
First, voestalpine and Austria Draht were held liable for an overall cartel on the PS market within the EEA. Accordingly, in order to determine the basic amount of the fine, the Commission stated that it had taken into consideration, in accordance with point 13 of the 2006 Guidelines, ‘the value of the undertakings’ sales of the goods or services to which the infringement relates in the relevant geographic area within the EEA’ during the last full business year of its participation in the infringement (contested decision, recital 929 et seq.).
For Austria Draht, the value of sales taken into account was EUR 18207306 (first amending decision, paragraph 5). This was the value of sales of PS relating to the geographic area concerned by the infringement, namely, for the period in which voestalpine and Austria Draht were found to have participated in the infringement: Germany, France, Italy, the Netherlands, Belgium, Luxembourg, Spain, Austria, Portugal, Denmark, Sweden, Finland and Norway (contested decision, recitals 931 and 932).
Second, the percentage to be applied to the value of sales as thus calculated depends on the gravity of the infringement as such. In that regard, the Commission took into account, among the relevant circumstances of the present case, 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 (contested decision, recital 936 et seq.).
As regards the nature of the infringement, the Commission took into account the fact that the entire cartel provided for market-sharing, customer-allocation and horizontal price-fixing (contested decision, recital 939).
The Commission also took into account the fact that the undertakings involved in the infringement held a combined market share of around 80% (contested decision, recital 946) and that the infringement covered a significant part of the EEA. On that point, the Commission stated that, contrary to Austria Draht’s contention, its turnover in Portugal and Spain should not be excluded from the value of sales, on the ground that it was not active in Club España, since those two countries were within the geographic scope of Club Italia, in which Austria Draht had participated (contested decision, recitals 947 and 948). However, for Socitrel, Proderac, Fapricela and Fundia, undertakings that participated only in Club España (covering only Spain and Portugal) or, in Fundia’s case, the coordination concerning Addtek, and for which knowledge of the single and continuous infringement could be established only at a very late stage of the infringement (17 May 2001 for Socitrel, Proderac and Fapricela and 14 May 2001 for Fundia), the Commission took account of the more limited geographic scope when determining the proportion of the value of sales. In the Commission’s view, the situation was different for the other participants in Club España (Emesa and Galycas, Tycsa and Trefilerías Quijano), which participated simultaneously in different levels of the cartel or for which knowledge of the single and continuous infringement could be established at a much earlier stage. Likewise, for participants in Club Italia, the situation was different from the situation of Socitrel, Proderac and Fapricela, since the geographic scope of Club Italia largely coincided with that of the pan-European agreements and was thus much larger than the geographic scope of Club España (Spain and Portugal) (contested decision, recital 949).
As for the implementation of the arrangements, the Commission considered that although they were not always entirely successful, the arrangements were implemented (contested decision, recital 950).
Given the specific circumstances of the case and the criteria referred to above, the Commission considered that the proportion of the value of sales to be taken into account was 16% for Fundia, 18% for Socitrel, Fapricela and Proderac and 19% for all the other undertakings, including the applicants (contested decision, recital 953).
Third, the duration of the infringement was fixed at five years and five months, from 15 April 1997 until 19 September 2002, in the case of voestalpine and Austria Draht (contested decision, recital 956).
Fourth, as regards the percentage to be included in the basic amount, independently of the duration of an undertaking’s participation in the infringement, the Commission concluded that an amount of 16% for Fundia, 18% for Socitrel, Fapricela and Proderac and 19% for all the other undertakings, including the applicants, was appropriate (contested decision, recital 962).
In answer to Austria Draht, which claimed that, since it was not aware of the overall pan-European arrangement, the Commission should not apply an additional amount in its case or, if it did so, it should apply only a multiplier set at the lower level (15%), the Commission observed that Austria Draht was aware of the overall pan-European arrangement (contested decision, recitals 652 to 654) and that it had also participated in Club Italia in meetings at which prices had been fixed, customers allocated and quotas shared (contested decision, recital 478 et seq.), so that the percentage applicable to Austria Draht should not be different from that applicable to other undertakings participating in similar practices (contested decision, recitals 958 and 959).
Fifth, the Commission rejected the mitigating circumstances put forward by voestalpine and Austria Draht during the administrative procedure. These consisted, in particular, in arguments relating to negligence (contested decision, recital 976), the minor role played by the applicants in the cartel (contested decision, recital 982 et seq.), their participation in only a part of the cartel (contested decision, recitals 996 to 998), the non-implementation of the agreements (contested decision, recital 1013 et seq., in particular recitals 1016 and 1018 to 1022) and the finding that the principal alone was liable for the acts of the agent, while the agent was not held liable (contested decision, recital 1034).
In the absence of any mitigating circumstances, the Commission considered that there was no reason to depart from the basic amount calculated according to the methodology set out in the 2006 Guidelines, which resulted in a fine of EUR 22 million (contested decision, recital 1057, and recital 1072 as regards the application of the limit of 10%).
B –
Outline of the principles
1. Proof of the existence and duration of the infringement
In the first place, it should be borne in mind that it is clear from the case-law that it is for the Commission to prove not only the existence of a cartel but also its duration. In particular, as regards proof of an infringement of Article 101(1) TFEU, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement. Any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding the infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubt on that point, in particular in proceedings for annulment and/or variation of a decision imposing a fine. In the latter situation, it is necessary to take account of the principle of the presumption of innocence, which is one of the fundamental rights which are protected in the European Union legal order and has been affirmed by Article 48(1) of the Charter of Fundamental Rights of the European Union. Given the nature of the infringements in question and the nature and degree of the severity 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. It is accordingly necessary for the Commission to produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place (see judgment of 17 May 2013 in
Trelleborg Industrie and Trelleborg
v
Commission
, T‑147/09 and T‑148/09, ECR,
EU:T:2013:259
, paragraph 50 and the case-law cited).
Furthermore, it is normal for the activities which anti-competitive agreements entail to take place clandestinely, for meetings to be held in secret, and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between operators, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. 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 judgment in
Trelleborg Industrie and Trelleborg
v
Commission
, cited in paragraph 116 above,
EU:T:2013:259
, paragraph 52 and the case-law cited).
In addition, according to the case-law, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (judgment in
Trelleborg Industrie and Trelleborg
v
Commission
, cited in paragraph 116 above,
EU:T:2013:259
, paragraph 53 and the case-law cited).
2. Concept of a single infringement, in the sense of a complex infringement
In the second place, still according to settled case-law, an infringement of Article 101(1) TFEU and Article 53 of the EEA Agreement can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Thus, when the different actions form part of an ‘overall plan’ because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (judgments of 8 July 1999 in
Commission
v
Anic Partecipazioni
, C‑49/92 P, ECR,
EU:C:1999:356
, paragraph 81; of 7 January 2004 in
Aalborg Portland and Others
v
Commission
, 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, ECR,
EU:C:2004:6
, paragraph 258; and of 6 December 2012 in
Commission
v
Verhuizingen Coppens
, C‑441/11 P, ECR,
EU:C:2012:778
, paragraph 41).
An undertaking which has participated in such a single and complex infringement, by its own conduct, which met the definition of an agreement or concerted practice having an anti-competitive object within the meaning of Article 101(1) TFEU and was intended to help to bring about the infringement as a whole, may thus also be responsible for the conduct of other undertakings followed in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (judgments in
Commission
v
Anic Partecipazioni
, cited in paragraph 119 above,
EU:C:1999:356
, paragraphs 83, 87 and 203;
Aalborg Portland and Others
v
Commission
, cited in paragraph 119 above,
EU:C:2004:6
, paragraph 83; and
Commission
v
Verhuizingen Coppens
, cited in paragraph 119 above,
EU:C:2012:778
, paragraph 42).
An undertaking may thus have participated directly in all the forms of anti-competitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, an undertaking may have participated directly in only some of the forms of anti-competitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such a case, the Commission is also entitled to attribute liability to that undertaking in relation to all the anti-competitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (judgment in
Commission
v
Verhuizingen Coppens
, cited in paragraph 119 above,
EU:C:2012:778
, paragraph 43).
Conversely, if an undertaking has directly taken part in one or more of the forms of anti-competitive conduct comprising a single and continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other offending conduct planned or put into effect by those other participants in pursuit of the same objectives, or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for the conduct in which it had participated directly and for the conduct planned or put into effect by the other participants, in pursuit of the same objectives as those pursued by the undertaking itself, where it has been shown that the undertaking was aware of that conduct or was able reasonably to foresee it and prepared to take the risk (judgment in
Commission
v
Verhuizingen Coppens
, cited in paragraph 119 above,
EU:C:2012:778
, paragraph 44).
That cannot, however, relieve the undertaking of liability for conduct in which it has undeniably taken part or for conduct for which it can undeniably be held responsible. However, a Commission decision categorising a global cartel as a single and continuous infringement can be divided in that manner only if the undertaking in question has been put in a position, during the administrative procedure, to understand that it is also alleged to have engaged in each of the forms of conduct comprising that infringement, hence to defend itself on that point, and only if the decision is sufficiently clear in that regard (judgment in
Commission
v
Verhuizingen Coppens
, cited in paragraph 119 above,
EU:C:2012:778
, paragraphs 45 and 46).
Last, the fact that an undertaking has not taken part in all aspects of a cartel or that it played only a minor role in the aspects in which it did participate must be taken into consideration when the gravity of the infringement is assessed and if and when it comes to determining the fine (judgments in
Commission
v
Anic Partecipazioni
, cited in paragraph 119 above,
EU:C:1999:356
, paragraph 90, and
Aalborg Portland and Others
v
Commission
, cited in paragraph 119 above,
EU:C:2004:6
, paragraph 86, and
Commission
v
Verhuizingen Coppens
, cited in paragraph 119 above,
EU:C:2012:778
, paragraph 45).
3. Concept of distancing in the event of participation in a meeting
In the third place, it is also settled case-law that it is sufficient for the Commission to establish that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, in order to prove to the requisite legal standard 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 (see judgment in
Aalborg Portland and Others
v
Commission
, cited in paragraph 119 above,
EU:C:2004:6
, paragraph 81 and the case-law cited).
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. In that regard, a party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery. That complicity constitutes a passive mode of participation in the infringement which is therefore capable of rendering the undertaking liable in the context of a single agreement (judgment in
Aalborg Portland and Others
v
Commission
, cited in paragraph 119 above,
EU:C:2004:6
, paragraphs 82 and 84).
Nor is the fact that an undertaking does not act on the outcome of a meeting having an anti-competitive purpose such as to relieve it of responsibility for the fact of its participation in a cartel, unless it has publicly distanced itself from what was agreed in the meeting. The fact that an undertaking has not taken part in all aspects of a cartel or that it has played only a minor role in the aspects in which it did participate is not material to the establishment of the existence of an infringement on its part. Those factors must be taken into consideration only when the gravity of the infringement is assessed and if and when it comes to determining the amount of the fine (judgment in
Aalborg Portland and Others
v
Commission
, cited in paragraph 119 above,
EU:C:2004:6
, paragraphs 85 and 86).
Where the liability of undertakings for anti-competitive conduct results, according to the Commission, from their participation in meetings having such conduct as their purpose, it is for the Court to ascertain whether those undertakings had the opportunity, both during the administrative procedure and before that Court, to rebut the findings thus made and, where appropriate, to prove circumstances which cast the facts established by the Commission in a different light and thus allow another explanation of the facts to be substituted for the one adopted by the Commission (judgment in
Aalborg Portland and Others
v
Commission
, cited in paragraph 119 above,
EU:C:2004:6
, paragraph 87).
It is in the light of the content of the contested decision and in consideration of the principles set out above that the Court must appraise the parties’ arguments, which were set out in detail in the Report for the Hearing communicated by the Court.
II –
First plea, alleging that the Commission was wrong to consider that the applicants participated in a component of the single infringement through their agent in Italy
In the first plea, voestalpine and Austria Draht claim that, although they did not participate in the cartel characterised by the Commission, they received a fine of EUR 22 million on the ground that their agent in Italy, Mr G., attended certain Club Italia meetings. However, that circumstance alone does not entitle the Commission to consider that, through that agent, they infringed Article 101 TFEU and Article 53 of the EEA Agreement.
In the context of this plea, the applicants rely, first, on the role played by Mr G., who performed the essential part of his activities on behalf of CB; second, on the statements made by Mr G., Mr V. (Tréfileurope) and a number of companies involved in the infringement, which show that Austria Draht did not participate in Club Italia; third, on the various factors put forward to prove that Austria Draht participated in Club Italia through Mr G., which are not conclusive; fourth, on the imputation of Mr G.’s conduct to Austria Draht, although they do not form an economic unit and there is no evidence that Austria Draht was aware of the unlawful acts committed by its agent; and, fifth, and in the alternative, on the duration of the infringement taken into consideration by the Commission, since in any event no participation by the applicants in Club Italia could be established before January 2000.
A –
Imputation of the agent’s conduct to the principal
In order to define Austria Draht’s liability, the Commission considered that Austria Draht had participated directly in Club Italia through its agent in Italy from 15 April 1997 until 19 September 2002. In doing so, the Commission rejected in the contested decision the observations submitted by the applicants concerning the absence of an economic unit between agent and principal, the fact that the agent assumed the economic risk, the fact that the agent was not an exclusive agent in the strict sense and the principal’s lack of awareness of the unlawful conduct of the agent. Following its analysis, the Commission considered at recital 779 to the contested decision that ‘Mr [G.] and Austria Draht should be regarded as a single economic entity and Austria Draht should be held liable for Mr [G.]’s cartel participation’ (see paragraphs 85 to 94 above).
It is in the light of that reasoning that the Court must examine whether the Commission is entitled to conclude, for the purposes of the application of Article 101 TFEU or Article 53 of the EEA Agreement, that Austria Draht must assume liability for the conduct of its agent in Italy.
1. Conditions of the imputability of the agent’s conduct to the principal
It is clear from settled case-law that in competition law the term ‘undertaking’ must be understood as designating an economic unit for the purpose of the subject-matter of the agreement in question, even if in law that unit consists of several persons, natural or legal (judgments of 12 July 1984 in
Hydrotherm Gerätebau
, 170/83, ECR,
EU:C:1984:271
, paragraph 11, and in
Minoan Lines
, cited in paragraph 89 above,
EU:T:2003:337
, paragraph 121).
Such an economic unit consists in a unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in Article 101(1) TFEU or Article 53(1) of the EEA Agreement. Where a group of companies constitutes one and the same undertaking the Commission is entitled to impute liability for an infringement committed by the undertaking and to impose a fine on the company responsible for the actions of the group in the context of the infringement (see, to that effect, judgment in
Minoan Lines
, cited in paragraph 89 above,
EU:T:2003:337
, paragraph 122).
For the purposes of applying the competition rules, formal separation of two companies, resulting from their having distinct legal identity, is not decisive. The test is whether or not there is unity in their conduct on the market (judgment in
Minoan Lines
, cited in paragraph 89 above,
EU:T:2003:337
, paragraph 123).
Thus, it may be necessary to establish whether two companies that have distinct legal identities form, or fall within, one and the same undertaking or economic entity adopting the same course of conduct on the market (judgment in
Minoan Lines
, cited in paragraph 89 above,
EU:T:2003:337
, paragraph 124).
The case-law shows that this sort of situation arises not only in cases where the relationship between the companies in question is that of parent and subsidiary. It may also occur, in certain circumstances, in relationships between a company and its agent or intermediary. In so far as the application of Article 101 TFEU or Article 53 EEA is concerned, the question whether a principal and his agent or intermediary form a single economic entity, the agent or intermediary being an auxiliary organ forming part of the principal’s undertaking, is an important one for the purposes of establishing whether given conduct falls within the scope of those provisions. Thus, it has been held that if an agent/intermediary works for the benefit of his principal he may in principle be treated as an auxiliary organ forming an integral part of the latter’s undertaking, who must carry out his principal’s instructions and thus, like a commercial employee, forms an economic unit with that undertaking (see, to that effect, judgment in
Suiker Unie and Others
v
Commission
, cited in paragraph 89 above,
EU:C:1975:174
, paragraph 480, and judgment in
Minoan Lines
, cited in paragraph 89 above,
EU:T:2003:337
, paragraph 125).
In the case of two companies having a vertical relationship, such as a principal and its agent or intermediary, two factors have been taken to be the main parameters for determining whether there is a single economic unit: first, whether the intermediary takes on any economic risk and, second, whether the services provided by the intermediary are exclusive (judgment in
Minoan Lines
, cited in paragraph 89 above,
EU:T:2003:337
, paragraph 126).
In so far as concerns the assumption of economic risk, it has already been held that an agent could not be regarded as an auxiliary organ forming part of its principal’s business where the agreement entered into with the principal confers upon the agent or allows it to perform duties which from an economic point of view are approximately the same as those carried out by an independent dealer, because under the agreement the agent accepts the financial risks associated with sales or the performance of the contracts entered into with third parties (judgment in
Suiker Unie
, cited in paragraph 89 above,
EU:C:1975:174
, paragraph 482, and judgment in
Minoan Lines
, cited in paragraph 89 above,
EU:T:2003:337
, paragraph 127).
As regards the exclusive nature of the services provided by the agent, it has also been held that where, at the same time as it conducts business for the account of its principal, an agent undertakes, as an independent dealer, a very considerable amount of business for its own account on the market for the product or service in question, that tends not to suggest economic unity (judgment in
Suiker Unie
, cited in paragraph 89 above,
EU:C:1975:174
, paragraph 544, and judgment in
Minoan Lines
, cited in paragraph 89 above,
EU:T:2003:337
, paragraph 128).
2. Agency agreement and assumption of the economic risk
The applicants essentially assert that, since Mr G. represented both CB and Austria Draht and since the activities carried out on behalf of CB were more important in terms of revenue than those carried out on behalf of Austria Draht, the element associated with the exclusivity of the services provided by the agent is not satisfied. Accordingly, in the absence of the second element referred to in the judgment in
Minoan Lines
, cited in paragraph 89 above (
EU:T:2003:337
), it cannot be concluded that there was an economic unit.
However, in order to determine whether there was an economic unit between Mr G. and Austria Draht, and as established in the case-law cited above, it is first necessary to know to what extent the agent bears the financial risks associated with sales or the performance of the contracts entered into with third parties as regards the activities for which he was appointed by the principal. The first element referred to in the judgment in
Minoan Lines
, cited in paragraph 89 above (
EU:T:2003:337
), cannot be disregarded.
In that regard, it should be borne in mind that the contract between Austria Draht and Studio Crema states that, in accordance with Austria Draht’s instructions, Mr G. is charged with selling Austria Draht’s PS in Italy ‘for and on behalf of’ Austria Draht. That contract requires Mr G., in particular, not to transact ‘on his own behalf’ and to ‘comply strictly with [Austria Draht’s] directions, instructions on prices and conditions as to payment, sales and delivery’. The contract also states that ‘the goods will be supplied and invoiced’ by Austria Draht. According to the terms of the contract, a sale is thus concluded only between Austria Draht and the customer and not between Mr G. and the customer (contested decision, recital 774, and agency agreement, Article 2).
That contract is therefore to be analysed as an agency agreement. It covers a situation in which ‘a legal or physical person (the agent) is vested with the power to negotiate and/or conclude contracts on behalf of another person (the principal), either in the agent’s own name or in the name of the principal, for the … purchase of goods or services supplied by the principal’ (see, to that effect, the definition of ‘agency agreements’ in point 12 of the Guidelines on Vertical Restraints, concerning the assessment of vertical agreements under Article 101 TFEU).
Furthermore, as the Commission observes in recital 774 to the contested decision, the contract does not stipulate that Mr G. is to bear the ‘risks associated with non-delivery, defective delivery and customer insolvency’ in respect of the activities for which he was appointed by Austria Draht. No provision of the contract suggests that Mr G. is responsible for financing stocks or that he is required to make specific investments in order to represent Austria Draht in Italy. The economic risk associated with sales negotiated by Mr G. and concluded with Austria Draht in Italy is therefore essentially borne by the principal and not by its agent.
Before the Court, the applicants do not contradict such an appraisal of the economic risk. They merely claim that Mr G. assumed certain expenses (costs of legal advice and travelling expenses, expenses linked with the incidental obligations associated with the conclusion of the contracts, translation costs, etc.), which may be regarded as ancillary to the activities entrusted to Mr G. or as covered by the fixed nature of the remuneration paid by Austria Draht in the form of commission. Such expenses cannot establish that any economic risk borne by Mr G. was other than negligible or limited under the activities entrusted by Austria Draht.
In the present case, the Commission is correct to consider that, in accordance with the case-law cited above, when Mr G. acted on behalf of Austria Draht in Italy he did so without assuming an economic risk in such a way that his contract with Austria Draht would entrust him with or allow him to undertake functions economically similar to those of an independent trader.
3. Impact of the fact that the agent represents two undertakings
As for the second element relied on in the judgment in
Minoan Lines
, cited in paragraph 89 above (
EU:T:2003:337
), the Commission acknowledges in recital 775 to the contested decision that the fact that Mr G. was also acting on behalf of another cartel participant, CB, had the consequence that the agency was not exclusive in the strict sense.
None the less, as the Commission submits, and contrary to the applicants’ suggestion, the particular characteristics of the present case cannot preclude outright any possibility of establishing the existence of an economic unit between Mr G. and Austria Draht so far as the activities entrusted to him under the agency agreement are concerned.
In that regard, although, alongside the activities carried out on behalf of Austria Draht, Mr G.was also carrying out activities on behalf of CB, the Commission is correct to note that, in the present case, ‘Mr [G.] was not active on his own behalf on the market in question [and] did not therefore conduct a significant amount of business for his own account as an independent dealer’ (contested decision, recital 775) (see, by analogy, judgment in
Suiker Unie
, cited in paragraph 89 above,
EU:C:1975:174
, paragraph 544, and judgment in
Minoan Lines
, cited in paragraph 89 above,
EU:T:2003:337
, paragraph 128).
In fact, instead of representing one principal for business purposes, Mr G. represented two, namely, essentially, CB, which generated the bulk of Studio Crema’s income (around 75% during the period of the infringement which the applicants are found to have committed), but also Austria Draht, which also generated a not insignificant proportion of that income (around 25% during that period).
In such a situation, in order to determine the existence of an economic unit between the agent and one of his principals, it is necessary to ascertain whether that agent is in a position, as regards the activities entrusted to him by that principal, to act as an independent trader free to determine his own business strategy. If the agent is not in a position to act in that way, the functions which he carries out on behalf of the principal form an integral part of the latter’s activities.
Thus, as the Commission states in recital 774 to the contested decision, the decisive factor in determining the existence of an economic unit between Mr G. and Austria Draht lies in the assessment of the financial risks associated with sales or the performance of the contracts concluded with third parties through Mr G. If Mr G. acts as an emanation of Austria Draht, he may then be treated as an ‘auxiliary organ forming an integral part of Austria Draht’s undertaking and thus [as] a commercial employee’, which would not be the case if he acted as an independent trader.
In the present case, it has already been established that the agency agreement between Mr G. and Austria Draht did not allow Mr G. to act, within the sense of competition law, as an independent trader so far as the activities in respect of which he had been appointed were concerned.
Furthermore, as regards the nature of the relationship between Mr G. and CB, it is also clear from the file that Mr G.’s conduct cannot be compared, from the aspect of Article 101(1) TFEU and Article 53(1) of the EEA Agreement, to that of an independent trader in PS produced by CB. Mr G. carried out, on behalf of CB, duties similar to those of a sales manager. The absence of a written agency agreement between Mr G. and CB does not establish that the activities entrusted to him by that company were carried out by an independent trader and not on behalf of and at the risk of CB. On the contrary, it may be considered that he was therefore acting as an auxiliary organ, integrated within that undertaking. Proof, as the applicants have observed, may be seen in the fact that Mr G. presented himself at the hearing before the Commission as a member of the team representing CB.
It follows from the foregoing that, although the present case differs from the situations previously assessed in the case-law, especially in the judgment in
Minoan Lines
, cited in paragraph 89 above (
EU:T:2003:337
), where the exclusivity of the agent’s representation of the principal was clear from his contract and from the performance of that contract (paragraphs 131 and 132 of the judgment), the double representation by Mr G. of CB and Austria Draht cannot upset the finding that, so far as the activities entrusted to Mr G. by Austria Draht were concerned, Mr G. was not in a position to carry out duties economically comparable with those of an independent trader.
In conclusion, as stated in the contested decision, Mr G., or Studio Crema, which he represents, ceases to be an independent economic operator when the scope of the agency agreement concluded with Austria Draht is assessed in the light of competition law, since Mr G. does not bear, or bears to a very limited extent, the financial risks resulting from the contracts of sale concluded through him with Austria Draht and since he operates
de facto
as an auxiliary organ forming part of that company.
None of the arguments put forward by the applicants on that point can undermine such a conclusion. A large part of that argument refers to the content of the judgments in
Suiker Unie
, cited in paragraph 89 above (
EU:C:1975:174
), and
Minoan Lines
, cited in paragraph 89 above (
EU:T:2003:337
), which cannot be simply extended to the present case to support the claim that, merely because there is no exclusive link in the strict sense between Mr G. and Austria Draht, they cannot form an economic unit.
Likewise, the fact that Mr G. also works for CB and that the activities carried out on behalf of CB represent the essential part of Studio Crema’s income by comparison with that generated with Austria Draht cannot suffice to demonstrate Mr G.’s commercial independence. As already stated, Mr G. could be regarded as constituting at the same time an economic unit with CB and an economic unit with Austria Draht. That applies, reciprocally, for CB and Austria Draht, only in respect of, and to the extent of, the activities entrusted to Mr G. by each of those companies.
For that reason, however, the Commission is not entitled to take the view that, ‘[i]n any event, in this case one should also note that CB was mostly present itself at cartel meetings and that, therefore, Mr [G.]/Studio Crema … generally acted as representative of Austria Draht’ (contested decision, recital 776
in fine
). In the absence of proof that would substantiate such an assertion, Mr G.’s presence at a Club Italia meeting can mean nothing other than the presence at that meeting of a person who (i) performed duties comparable to those of a sales manager on behalf of CB and (ii) was also Austria Draht’s agent in Italy. In the light of the double representation carried out by Mr G., which enabled him to have access to commercially sensitive information coming from two sources, the Commission was none the less correct to observe that that particular circumstance was a coordination-enhancing factor in the context of the cartel (contested decision, beginning of recital 776).
As regards the Commission’s practice in taking decisions on which the applicants rely with reference to Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Article [101 TFEU] and Article 53 of the EEA Agreement (Case COMP/F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene Rubber) and Commission Decision C(2008) 5476 final of 1 October 2008 relating to a proceeding under Article [101 TFEU] and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle Waxes), such a practice is also incapable of proving that there could not be an economic unit between Mr G. and Austria Draht in the present case. On the contrary, the details of those cases consistent with the logic previously explained in the judgment in
Minoan Lines
, cited in paragraph 89 above, (
EU:T:2003:337
), where the Court had, as regards those cases, referred to the exclusive nature of the representation in question, although that does not prevent the Commission from taking Mr G.’s specific ‘double representation’ situation into account, is it did in the present case.
Consequently, the Commission was correct to consider in the present case, essentially in the light of the agency agreement, that Mr G. was acting on behalf of Austria Draht, which assumed the economic risk of that representation. In the present case, Mr G. must in fact be regarded as an auxiliary organ forming part of the undertaking of Austria Draht (or Austria Draht and voestalpine together) and, like a commercial employee, he constitutes a single economic entity with that undertaking.
4. Lack of awareness, control and approval
At this stage, the applicants claim that the objective situation just defined does not suffice for the agent’s unlawful conduct to be imputed to the principal. It is still necessary to establish the extent to which the principal was or may have been informed of that conduct.
In that regard, and in the first place, the Commission considered that it was not required to make a ruling on ‘the lack of control, awareness or (retroactive) approval of the cartel participation of [the] agent’, since such arguments ‘cannot be valid arguments to escape liability’ (contested decision, recital 777). The Commission also stated that, since ‘Austria Draht form[ed] an economic unit with its agent’, it ‘[was] therefore liable for the latter’s cartel participation irrespective of Austria Draht’s (lack of) awareness, control or approval thereof’ (contested decision, recital 777).
In the second place, the Commission supplemented the preceding analysis by observing that, ‘even if there [was] no direct proof of instructions/debriefings on anti-competitive meetings’ between Mr G. and Austria Draht, it was ‘clear from the agency contract and the internal reports submitted by Austria Draht in answer to a request for information from the Commission, that Mr [G.] kept Austria Draht regularly informed about the developments on the Italian market’ and that it could therefore be ‘expected that Mr [G.] passed on at least the most relevant commercially sensitive information obtained during cartel meetings to Austria Draht’ (contested decision, recital 778).
On this point, the applicants rely on the solution found in the judgment in
Minoan Lines
, cited in paragraph 89 above (
EU:T:2003:337
). In fact, that judgment does not reject outright, but responds in depth and in detail to an argument comparable to the applicants’ argument in the present case, where the principal relies before the Court on its alleged lack of awareness of the activities carried out by the agent and also on the lack of authorisation or approval of such activities (judgment in
Minoan Lines
, cited in paragraph 89 above,
EU:T:2003:337
, paragraph 139).
In that judgment, the Court ascertained whether, first, the offending acts committed by the agent formed part of the activities entrusted by the principal; second, the principal had been regularly informed of the activities entrusted to the agent, including offending acts committed by that agent; and, third, the principal had prohibited its agent from carrying out such acts (judgment in
Minoan Lines
, cited in paragraph 89 above,
EU:T:2003:337
, paragraphs 140 to 146).
In answer to the principal’s argument relating to the lack of awareness or approval of the acts of its agent, the Court found as follows in paragraph 147 of the judgment in
Minoan Lines
, cited in paragraph 89 above (
EU:T:2003:337
), that it follows from the considerations set out in that case that establishing the tariffs and conditions applicable on the applicant’s ships on the international routes fell within the sphere of activities of its agent, that the principal was regularly informed of the actions undertaken by its agent, including the contacts which it maintained with the other companies, for which the agent sought prior or a posteriori authorisation, and, last, that the principal had both the power and the right to forbid its agent from undertaking certain actions, even if it exercised that right only after the Commission had conducted its investigation.
It should also be observed that, in its general conclusion on the complaints relating to the incorrect application of Article 101(1) TFEU (then Article 81(1) EC) in that the actions of the agent were wrongly imputed to the principal, the Court linked the finding of the existence of an economic unit to the result of the preceding examination (judgment in
Minoan Lines
, cited in paragraph 89 above,
EU:T:2003:337
, paragraph 148), stating that it was clear from an examination of the telexes exchanged between the principal and the agent and between the agent and the other companies which had participated in the infringement, from the principal’s replies to the Commission’s requests for information, and from the other circumstances which the Court had considered in the judgment, that the agent had acted on the market vis-à-vis third parties, customers, sub-agents and competitors of the principal as an organ of the principal and that the two companies therefore formed one and the same economic unit or undertaking for the purposes of applying Article 81 EC. The Court inferred that, in those circumstances, the Commission was entitled to impute to the principal the conduct which had been sanctioned in the decision at issue as contrary to Article 81 EC and in which the agent had played an important part.
In the light of that analysis, the Commission cannot, on the one hand, state that ‘there is no direct proof of instructions/debriefings on anti-competitive meetings’ between Mr G. and Austria Draht, and, on the other, observe that it is ‘clear from the agency contract and the internal reports submitted by Austria Draht [in answer to a request for information] that Mr [G.] kept Austria Draht regularly informed about the developments on the Italian market’, and conclude that it can therefore be ‘expected that Mr [G.] passed on at least the most relevant commercially sensitive information obtained during cartel meetings to Austria Draht’ (see paragraph 166 above).
In principle, it ought to have been possible for the Commission to identify among the monthly written reports sent to Austria Draht by Mr G. concerning the general sales and market conditions, including the activities of competitors in the sphere of his representation, which were communicated to the Commission by Austria Draht in reply to a request for information, the various items of commercially sensitive information that Mr G. may have communicated to Austria Draht, but also the indications that would have enabled Austria Draht to be aware that Mr G. was participating, on Austria Draht’s behalf and on its account, in anti-competitive practices relating to quotas, prices and customers on the occasion of the various meetings in which he participated.
In the absence of such elements, and although the cartel had not yet been reported and numerous documents contemporaneous with the facts existed within Club Italia that would explain how it operated, it cannot be presumed that, as the Commission presumes, Mr G. reported to Austria Draht the gist of everything that he was able to know and do within Club Italia. Such a conclusion could be reached only if the agent’s monthly written reports contained indications to that effect. Accordingly, if, after examining those documents, the Commission concludes, as it does in the contested decision, that ‘there is no direct proof of instructions/debriefings on anti-competitive meetings’, it cannot refuse to draw the necessary conclusions from such an assertion by stating that it is still possible to infer the contrary.
In that context, it must be stated that there is no evidence to show that Austria Draht may have had, through Mr G., the slightest information about the anti-competitive conduct of its agent on the occasion of the various Club Italia meetings in which he participated. That, moreover, was acknowledged by the Commission at the hearing. The Commission cannot therefore presume awareness which it has not established.
None the less, in circumstances such as those of the present case, where the agent acts on behalf of and on account of the principal without assuming the economic risk of the activities entrusted to him, the anti-competitive conduct of that agent in the context of those activities can be imputed to the principal, just as the offending acts committed by an employee can be imputed to the employer, even without proof that the principal was aware of the agent’s anti-competitive conduct.
In fact, as stated above, it is clear from the agency agreement that it was in full knowledge of the facts that Austria Draht entrusted the marketing of its products in Italy to Mr G., who was already acting as intermediary for CB, one of the main Italian operators. Austria Draht had also provided itself with the means to control the results obtained by Mr G., since he could not be regarded as an independent trader and since, in any event, the sales which he negotiated could be concluded only by Austria Draht.
In such circumstances, even in the absence of any awareness of the offending acts committed by Mr G. in the context of the activities entrusted to him, Austria Draht remained the main beneficiary of those acts, as the applicants acknowledged at the hearing.
It follows from the foregoing that, in the present case, the Commission is entitled, first, to conclude that there was an economic unit between the agent and the principal as regards the activities entrusted to Mr G. by Austria Draht and, second, to consider that, because of that economic unit, it is possible to impute to the principal the offending acts committed by Mr G. on behalf of Austria Draht in the context of the activities entrusted to him, without there being any need to show that the principal was aware of those acts.
It is therefore necessary to establish the content of the offending acts committed by Mr G. on behalf of Austria Draht in the context of the activities entrusted to him.
B –
Evidence of the agent’s unlawful conduct
First of all, it is appropriate to limit the assessment of the content of the offending acts imputable to Austria Draht solely to the evidence relating to Club Italia, the only component of the single infringement in which Austria Draht is expressly found to have participated in the contested decision, and which it did though the intermediary of Mr G. (contested decision, recitals 769 to 783). The evidence relating to other components of the cartel, and in particular to Club Europe, some of which was relied on by the Commission in the context of the present plea, will be examined mainly under the second plea, as regards the characterisation of a single infringement with regard to the applicants.
In order to establish that Austria Draht participated in Club Italia, the Commission states that it has evidence that Austria Draht ‘systematically participated in over 40 meetings of Club Italia between 15 April 1997 and 19 September 2002 and on several occasions, its absence was explicitly mentioned, indicating that it was expected to attend the meetings’ (contested decision, recital 479). That evidence is mentioned in the contested decision (see paragraphs 78 to 81 above), as is the Commission’s rejection of the arguments put forward by the applicants during the administrative procedure in order to challenge the finding that they were represented by Mr G. at those meetings (see paragraphs 86 to 88 above) or to support the general assertion that Austria Draht did not participate in those meetings (see paragraphs 95 to 100 above).
Before the Court, the applicants claim in essence that the references in the contested decision to Austria Draht’s participation in Club Italia meetings do not support the conclusion that it participated in the cartel. In particular, the applicants maintain that the fact that Austria Draht’s case was discussed at 14 meetings in the presence of Mr G. and other individuals does not constitute proof that Austria Draht participated in the cartel, as Mr G.’s participation is not the same as Austria Draht’s participation, and also that it is not generally possible to know what the charges against Austria Draht are.
In response to that argument, it should be recalled at the outset that it follows from the foregoing that in the present case the Commission is correct to impute to Austria Draht the offending acts committed by Mr G. in the context of the activities entrusted to him.
It is therefore necessary to ascertain how Mr G.’s conduct at the various Club Italia meetings in which he participated may be considered to be contrary to Article 101(1) TFEU and Article 53 of the EEA Agreement. In that regard, and as the applicants observe, that task is made more difficult by the fact that Mr G. was also representing CB, one of the main players in Club Italia. On that point, however, the Commission took care to state that, for the 14 meetings most characteristic of Mr G.’s participation in the cartel on behalf of Austria Draht, not only did the discussions take place in Mr G’s presence, but, in addition ‘Austria Draht’s case’ was discussed (contested decision, footnote accompanying recital 479).
As the applicants claim that, so far as the 14 meetings in question are concerned, the Commission is in breach of its obligation to adduce proof and to state reasons, in particular as regards the charges against Austria Draht in that regard, it is appropriate to examine in turn the various items of evidence relied on in the contested decision in order to establish that Mr G. engaged in unlawful conduct in the context of the activities entrusted to him by Austria Draht.
1. The meeting of 15 April 1997
The first of the 14 meetings on which the Commission relies in the contested decision is the meeting of 15 April 1997, which dealt with ‘quota/customer allocation and price-fixing’ (contested decision, footnote accompanying recital 479). In the column relating to that meeting in Annex 3 to the contested decision, the Commission stated that the following were represented: Redaelli, CB, Itas, ITC, Tréfileurope, SLM, Tycsa, DWK and Austria Draht (through Mr G.).
In the column relating to that meeting in Annex 3 to the contested decision, the Commission presents the points covered by the meeting of 15 April 1997 as follows:
—
‘fixing raw material prices and sales prices in France, Spain and Germany’;
—
‘[d]iscussion on sales made by Redaelli to a number of customers and on offers made to customers by SLM and CB, customers and sales quotas’;
—
‘[i]t was also stated that Austria Draht would not supply to a particular group of customers [and an] [i]nformation exchange [took place] on the prices charged by Mr [G.] to a number of clients’;
—
‘[d]etailed overview of sales made by the companies Redaelli, Itas, CB, ITC, Tréfileurope, Tycsa, Trame, SLM, DWK, Austria Draht [and] discussion on quota allocation (with indication of a concrete percentage) for the same companies’;
—
‘[d]iscussion about the possibility of applying surcharges, studies of imports and a question about exports’.
That information comes essentially from ITC, which provided a contemporaneous minute of the meeting of 15 April 1997, apart from the last piece of information, which comes from Tréfileurope and sets out the substance of a brief statement in the leniency application concerning that meeting (see Annex G.3 to the Commission’s reply to the measures of organisation of procedure, for ITC, and Annex H.1 of the Commission’s reply to the measure of inquiry, for Tréfileurope).
Taken as a whole, the information originating in the ITC minute, which is particularly relevant, because it was drawn up at a time when the cartel had not yet been discovered, and Tréfileurope’s statement, which confirms the sense of that minute, makes it possible to establish the starting point of Austria Draht’s participation in Club Italia through Mr G.
First, in general, Mr G.’s participation in that meeting enabled him to be present at discussions the anti-competitive content of which is clear upon examination of the ITC minute. That is so of the information relating to ‘fixing raw material prices and sales prices in France, Spain and Germany’ (see the first indent of paragraph 187 above) and ‘[d]iscussion on sales made by Redaelli to a number of customers and on offers made to customers by SLM and CB, [on] customers and [on] sales quotas’ (see the second indent of paragraph 187 above). Such information enabled Mr G. to coordinate his activities, in particular those entrusted to him by Austria Draht in Italy, with those of the undertakings represented at the meeting of 15 April 1997.
Second, as concerns, more specifically, Austria Draht, the ITC minute shows, first of all, that ITC’s representatives considered that Mr G. was participating in the meeting on behalf of Austria Draht and not on behalf of CB, which was represented by Mr [C].
Third, it is also clear from that minute that the participants in the meeting discussed quantities relating to the different undertakings referred to at that meeting, including Austria Draht (see the fourth indent of paragraph 187 above). Admittedly, the degree of precision corresponding to each of those undertakings in a table in the ITC minute is not the same, since the data communicated for the first group of participants (Redaelli, CB, Itas and ITC) and the second group of participants which was added (Tréfileurope and Tycsa) are precise, whereas, for a third group of undertakings (Trame, absent from that meeting, SLM, DWK and Austria Draht), the figures are rounded. The fact none the less remains that that table shows that Austria Draht’s case was discussed, since, with 2000 tonnes, Austria Draht represented 2.6% of the 78000 tonnes discussed at that meeting.
Fourth, the ITC minute also mentions that at the meeting of 15 April 1997 Austria Draht’s particular situation was discussed (see the third indent of paragraph 187 above). In that regard, it is reasonable to think that Mr G., as Austria Draht’s agent in Italy, took part in that discussion.
As regards the point that Austria Draht did not supply a particular group of customers, it may be considered that, as the applicants claim, that is to be explained by those customers’ lack of solvency. Any operator carrying out or seeking from specialist bodies an assessment of the available accounting information could have been aware of that. Such an explanation, put forward by the applicants without being proved, seems as likely as the Commission’s suggestion that the failure to make supplies is evidence of anti-competitive conduct, which is not clear from the minute, which does not state the reason for not supplying the customers referred to.
In that respect, the doubt must operate to the advantage of the applicants.
On the other hand, as regards the indication that information was exchanged on the prices charged by Mr G. to a number of clients, it must be stated that the ITC minute does indeed mention the name of Mr G., who represented Austria Draht at that meeting, according to ITC, above the names of several customers (including the customer ‘PAMA’), together with figures that in all likelihood correspond to the price charged to each of those customers. Such information shows that Mr G. participated directly in anti-competitive activities at that meeting.
In conclusion, it is clear from the evidence relating to the Club Italia meeting of 15 April 1997 (i) that Mr G. can reasonably be considered to be the individual who disclosed to the participants in that meeting information on the prices charged to a number of his customers and (ii) that merely by his presence at that meeting Mr G. was able to obtain information on the main operators active business in Italy, relating in particular to quota-allocation and price-fixing.
That evidence establishes to the requisite legal standard the beginning of Austria Draht’s participation in Club Italia through Mr G.
2. The meeting of 24 June 1997
The second meeting is the meeting held on 24 June 1997, which concerned the ‘search for a “market equilibrium” and information exchange on prices’ (contested decision, footnote accompanying recital 479). In the column relating to that meeting in Annex 3 to the contested decision, the Commission stated that Messrs [C.], father and son, were present on behalf of CB, as well as two representatives of Tréfileurope, and that Mr G. had joined the participants at the end of the meeting.
The content of that meeting is described as follows by Tréfileurope in a document drawn up on 2 July 1997 reporting on a visit to CB (see Annex B.6 to the defence):
‘Report on a visit [by Mr Th. of Tréfileurope] to [CB]: “… Mr [C. (of CB)] did not appreciate the action at the beginning of the year that resulted in a lower turnover for his undertaking and an increase for ITC, on which he then declared war. He asked his agent to visit all customers and this resulted in serious reductions in prices, so our objective fell to 1100 lire. He thinks it is still possible to find a market equilibrium for Italy and is working towards that with ITAS, SLM and Austria (Draht) (through Mr [G.]) and wants to exclude ITC. We are asked to join. I replied that we were in favour but that the decision had to come from our board. Mr [G.] (sales agent for Mr [C.] + Austria) joined us at the end of the meeting. CB prices are between 1000 and 1500 lire. Mr [C.] wants to raise them by 50 lire to cover the rise in FM. Today 1050 lire seems a fair price to him. CB’s goal is the French market as it obtained a homologation 6 months ago for large strand but has not yet made any sales. It has just launched homologation for notched wire and small strands in T 5.2 — 2060. It wants a market share of 2000 tons on the French market. …’
That document, which was drawn up at a time when the cartel had not yet been discovered, shows the nature of the relationship that Mr G. may have had with CB. It is thus clear from that document that that relationship was emphasised by Mr C. of CB to Tréfileurope to show that CB could coordinate the conduct of several market players, including Austria Draht, on whose behalf Mr G. was also acting. Although the conversation on prices covered only CB’s prices and not Austria Draht’s, there was also a reference to the possibility of finding an equilibrium on the Italian market at a certain level, and to do so with Austria Draht, through Mr G., in spite of the price war launched by ITC.
In the light of that document, it may be concluded that Mr G. was prepared to work alongside Mr C. of CB within Club Italia, or had no objections to doing so, both as representative of CB and as representative of Austria Draht.
3. The meeting of 11 March 1998
The third meeting is the meeting held on 11 March 1998. It concerned ‘quota allocation and price fixing discussions’, while ‘Austria Draht [is] mentioned but without entries’ (contested decision, footnote accompanying recital 479). In the column relating to that meeting in Annex 3 to the contested decision, the Commission stated that the following were represented: Redaelli, CB (through Mr G.), Itas, ITC (three individuals) and Austria Draht (through Mr G.).
In the column relating to that meeting in Annex 3 to the contested decision, the Commission sets out the points covered at the meeting of 11 March 1998, as follows:
—
‘[t]he participants again discuss the price for the second quarter, which should rise to 1150 lire per kilo’;
—
‘[e]valuation of the needs of certain customers’;
—
‘[e]xchange of information on tons supplied in January and February by ITC, Redaelli, AFT, Itas, CB, Austria Draht, SLM, Trame and Tycsa’.
That information comes from a document seized at ITC’s premises and also from a document supplied by ITC, namely two different minutes of the meeting of 11 March 1998 (see Annexes A.19 and A.20 to the application).
Those documents show, first of all, that on one occasion the word ‘Austria’ is mentioned alongside the name of a customer for whom there is a reference to a supply by SLM, which was not represented at that meeting. That reference is followed by a question mark. For that reason, such a reference cannot in itself be decisive, since Mr G. would undoubtedly have been able to remove any doubt as to whether that customer was supplied by Austria Draht.
Likewise, as regards the discussion of ‘quota allocation and price fixing’, the data relating to that aspect of the meeting are not very conclusive so far as Austria Draht is concerned. In fact, as the Commission already observes, no data are mentioned on the line devoted to Austria Draht in the relevant minute of ITC. That is also the case for other operators, such as Tréfileurope, Itas or CB, for which the corresponding lines are made ‘without entries’. That suggests that Austria Draht’s situation was raised at the meeting of 11 March 1998 without any of the participants in that meeting, therefore including Mr G., being in a position to or wishing to provide any information in that regard.
Generally, however, examination of the ITC minutes establishes that the participants in the meeting of 11 March 1998 discussed supplies made and prices offered to certain customers and that they made reference to a price desired for the second quarter of 1998. The participation in that meeting of Mr G., who represented, in particular, Austria Draht in Italy, therefore enabled him to be aware of that information, which, in the absence of evidence capable of calling such an assessment into question, permits the conclusion that he was in a position to act thereafter in the light of such information on customers and prices for the benefit of the undertakings which he represented.
4. The meeting of 30 March 1998
The fourth meeting is the meeting held on 30 March 1998. It concerned ‘quota allocation discussions’ (contested decision, footnote accompanying recital 479). In the column relating to that meeting in Annex 3 to the contested decision, the Commission indicated that the following were represented: Redaelli, CB (through Mr C. and Mr G.) Itas, ITC, Tréfileurope and Tycsa. In the introduction to that annex, however, the Commission made clear that a reference to Mr G. in connection with Club Italia must be understood in the light of the fact that he was representing both CB and Austria Draht.
In the column relating to that meeting in Annex 3 to the contested decision, the Commission presents the points covered by the meeting of 30 March 1998 as follows:
—
‘[t]he participants again discuss the case for raising the price from 1100 to 1150 lire per kilo’;
—
‘[n]ext meeting with SLM (Mr [Ch.]) set at 17 April. Discussion on allocation of volume (expressed in tons) to CB, ITC, Tréfileurope, Itas, Redaelli, Tycsa, SLM and A(ustria Draht). Reference to the fact that Tycsa increases its price’;
—
‘Italian market meeting’.
That information comes, in the case of that mentioned in the first indent of paragraph 210 above, from a minute drawn up by ITC at the material time, in the case of the information mentioned in the second indent of that paragraph, from a minute drawn up by Itas at the material time and, for the information mentioned in the third indent of that paragraph, from a table mentioning meetings attached to the leniency application submitted by Tréfileurope, which in this instance merely sets out a brief and vague assertion as concerns the meeting of 30 March 1998 (see Annexes G.2 and G.3 to the Commission’s reply to the measures of organisation of procedure, in the case of ITC, and Annex H.3 to the Commission’s reply to the measure of inquiry, in Tréfileurope’s case).
In the light of the minutes drawn up by ITC and Itas, it must be held that, at that meeting, the discussions actually covered the prices offered to certain customers, an agreement on prices and on quantities concerning different customers. The price of 1150 lire per kilo was also seen as an objective for April 1998.
Furthermore, it is clear from the ITC minute that a list of customers was envisaged, with, for each customer, the identification or one or more quantities in consideration of the number of suppliers.
In that list, the expression ‘+ Austria’, which in all likelihood refers to Austria Draht, is indicated alongside the name of the customer ‘PAMA’, for which the quantities stated are ‘350/+350’.
Although that is the only mention of Austria Draht’s involvement in those discussions, it forms part of a more general framework in which a large amount of information on customers and prices was exchanged, which permits the conclusion that Mr G., who represented, in particular, Austria Draht in Italy, participated during the meeting of 30 March 1998 in discussions the content of which constitutes an infringement of Article 101(1) TFEU and Article 53 of the EEA Agreement.
5. The meeting of 18 May 1998
The fifth meeting is the one held on 18 May 1998. It concerned ‘quota allocation and price fixing discussions’ (contested decision, footnote accompanying recital 479). In the column relating to that meeting in Annex 3 to the contested decision, the Commission indicated that the following were represented: Redaelli, CB (through Mr G.), Itas, ITC, Tréfileurope, Tycsa and Austria Draht (through Mr G.).
In the column relating to that meeting in Annex 3 to the contested decision, the Commission presented the points covered at the meeting of 18 May 1998 as follows:
—
‘[e]xchange of information about supplies to the 10 main customers of each producer’;
—
‘[t]he participants discuss the prices charged and to be charged (not below 1100 lire per kilo). They also discuss the price offered by DWK to a customer’;
—
‘[d]iscussion on allocation of quota between Tréfileurope, Tycsa, ITC, Itas, CB, Redaelli and Austria Draht (concrete number of tons added)’;
—
‘[a] table is produced showing some 20 customers divided up among CB, Itas, Redaelli, ITC, Tycsa and Tréfileurope’.
That information comes from three sources: a minute drawn up by ITC at the material time, a minute drawn up by Itas at the same time and a table mentioning meetings attached to the leniency application submitted by Tréfileurope, which merely sets out a brief and vague assertion concerning the meeting of 18 May 1998 (see Annexes G.4 and G.5 to the Commission’s reply to the measures of organisation of procedure, for ITC and Itas, and Annex H.3 of the Commission’s reply to the measure of inquiry, for Tréfileurope).
In the light of the minutes drawn up by ITC and Itas, it should be observed that at that meeting the discussions did concern prices and supplies relating to different customers. The ITC minute mentions a detailed table concerning customers, with precise indications relating to CB, Itas, Redaelli, ITC, Tycsa and Tréfileurope. There is no mention in that regard of Austria Draht, in particular when reference is made to the situation of the customer ‘PAMA’.
For its part, the minute drawn up by Itas presents, on the occasion of a report of the quantities sold in April, precise data relating to Tréfileurope, Tycsa, ITC, Itas, CB and Redaelli, which together represent 5456 tonnes. Alongside that report is, first of all and in isolation, the reference ‘Austr 100’ and, subsequently, other rounded data relating to the six undertakings referred to above, which together represent 5600 tonnes. The reference to Austria Draht in that minute is therefore clearly not of the same nature as those made, for example, in respect of CB.
In spite of the imprecise and unique nature of the figure available concerning Austria Draht, the fact none the less remains that, by his presence at the meeting of 18 May 1998, Mr G. was able to obtain information of an anti-competitive nature on prices and customers supplied by the main producers operating in Italy.
6. The meeting of 19 October 1998
The sixth meeting is the one held on 19 October 1998. It concerned ‘customer allocation’ (contested decision, footnote accompanying recital 479). In the column relating to that meeting in Annex 3 to the contested decision, the Commission stated that the following were represented; Redaelli, Itas, ITC, Tréfileurope and ‘[Mr G.]’. As already stated, in the introduction to that annex the Commission made clear that a reference to Mr G. was to be understood in the light of the fact that he was representing both CB and Austria Draht.
According to the evidence on which the Commission relies, the meeting of 19 October 1998 gave rise to ‘[d]iscussion on clients and their suppliers (listed client by client) among Redaelli, SLM, CB, Itas, SLM, Trame, AFT, ‘TY’ (Tycsa), ‘AD’ (Austria Draht)’. The information in that regard comes from a minute drawn up by ITC at the material time (see Annex B.10 to the defence, p. 2001 et seq.).
It is clear from the first page of that minute that, within a list of numerous customers, the initials ‘AD’, probably meaning Austria Draht, are placed alongside the name of the customer ‘RDB centro’ together with the reference ‘1005 total’ or ‘1095 total’, while the following page contains the indication ‘RDB centro Itas 1100 B’.
Whether the reference is to quantities supplied or, what is more likely, to prices charged, the reference to Austria Draht logically originates with Mr G.
In any event, by participating in the meeting of 19 October 1998, Mr G. was able to have access to detailed information on certain customers supplied by and the prices charged by competitors of the companies which he represents, which constitutes an infringement of Article 101(1) TFEU and Article 53 of the EEA Agreement.
7. The meeting of 18 January 1999
The seventh meeting is the one held on 18 January 1999. It concerned ‘quota allocation and price fixing discussions’ (contested decision, footnote accompanying recital 479). In the column relating to that meeting in Annex 3 to the contested decision, the Commission stated that the following were represented: Redaelli, CB (through Mr G.), Itas, ITC, Tréfileurope, Tycsa and Trame. As already stated, in the introduction to that annex, the Commission made clear, however, that a reference to Mr G. must be understood in the light of the fact that he was representing both CB and Austria Draht.
In the column relating to that meeting in Annex 3 to the contested decision, the Commission presents the points covered in the meeting of 18 January 1999 as follows:
—
‘[d]iscussions about customers and prices (including the extra) for the 1st semester. Participants stress the need to set the 1999 price at 1130 lire per kilo plus a diameter surcharge’;
—
‘[d]iscussion about the quotas (expressed in percentage): a detailed table dated 18 January 1999 is exchanged (originating from Redaelli Tecna) indicating quotas and a delta for Redaelli, Itas, CB, ITC ‘N’, ITC ‘S(ud)’, TE (=Tréfileurope)’;
—
‘[v]olume (expressed in tons) is also provided for A(ustria) D(raht), Tycsa, Trame, DWK, SLM’.
That information comes from a minute drawn up by ITC at the material time and from two documents found at Redaelli’s premises (see Annex C.1 to the reply, p. 35, for ITC, and Annex G.13 to the Commission’s reply to the measures of organisation of procedure, for Redaelli).
As regards the ITC minute, examination of that document does not establish a direct connection with Austria Draht, since it makes no reference to that company. None the less, the data set out in the minute, such as, for example, the indication relating to the price ‘1130 + extra’ for the first semester, are sufficient to support the conclusion that Mr G.’s presence at that meeting enabled him to obtain information of an anti-competitive nature that could benefit Austria Draht, which he represented in Italy.
Upon reading the two documents found at Redaelli’s premises, it is first of all possible to assert that the main operators on the Italian market, namely Redaelli, CB, Itas, ITC and Tréfileurope, shared amongst themselves a ‘quota’ of 100% representing 64713 tonnes. The word ‘quota’ actually refers to total sales in 1998, as is clear from the first of those documents and confirmed by the detail of the data set out in the table showing the allocation of that 100%.
Those two documents also show that, below that allocation of the 100%, handwritten annotations were made to add other operators, called ‘outsiders’, in the first of those documents. These were initially Austria Draht and Tycsa, than, after handwritten corrections, Tycsa, Austria Draht, Trame, SLM and DKW. The quantities added increase the quantity from 64713 tonnes to 84000 tonnes. In that regard, it should be noted that the volume attributed to Austria Draht in that exercise, like the volume attributed to Tycsa, is precise and not rounded, as in the case of Trame, SLM and DKW. The figure given for Austria Draht thus increased from the initial ‘607’ to, following the handwritten correction, ‘1812’.
In the light of Mr G.’s presence at that meeting, it is reasonable to think that he is at the origin of the changes made to the volume supplied by Austria Draht in 1998.
8. The meeting of 14 December 1999
The eighth meeting is the one held on 14 December 1999. It concerned ‘quota allocation discussions’ (contested decision, footnote accompanying recital 479). In the column relating to that meeting in Annex 3 to the contested decision, the Commission stated that the following were represented: Redaelli, CB (through Mr F. and Mr G.), Itas, ITC, Tréfileurope and SLM. As already indicated, in the introduction to that annex the Commission stated, however, that a reference to Mr G. was to be understood in the light of the fact that he was representing both CB and Austria Draht.
According to the evidence relied on by the Commission, the meeting of 14 December 1999 was a ‘[m]eeting discussing clients and allocating tons to “Red(aelli)”, “Italc(ables)”, “CB”, “Itas”, “SLM” and “A(ustria) D(raht)”’.
That information comes from a minute drawn up at the material time by SLM and from a minute drawn up by ITC at the same time, which provides no information beyond identifying the undertakings and their representatives (see Annex B.10 to the defence, p. 215, for SLM, and Annex C.1 to the reply, p. 41, for ITC).
As regards Austria Draht, examination of the SLM document shows that it includes the reference ‘AD 400’ among three other references, ‘RE 4000’, ‘SLM 300’ and ‘Itas 300’. That reference shows that, for one particular customer, the allocation referred to above was mentioned, which confirms that the allocation of quotas was discussed with regard to, in particular, Austria Draht. Other references of that type are made in the SLM document, but without mentioning Austria Draht, which also shows that those present discussed certain of their customers.
9. The meeting of 12 January 2000
The ninth meeting is the one held on 12 January 2000. It concerned ‘quota allocation discussions’ (contested decision, footnote accompanying recital 479). In the column relating to that meeting in Annex 3 to the contested decision, the Commission stated that the following were represented: ITC, Itas, Tréfileurope and Mr G. As already indicated, in the introduction to that annex, the Commission made clear that a reference to Mr G. must be understood in the light of the fact that he was representing both CB and Austria Draht.
In the column relating to that meeting in Annex 3 to the contested decision, the Commission presents the points covered at the meeting of 12 January 2000 as follows:
—
‘[d]etailed table with overview of the sales made by “Red(aelli)”, “ITC”, “CB”, “Itas”, “THE” (Tréfileurope), “SLM”, “TM” (Trame), “TY” (Tycsa), “DWK” and “AD” (Austria Draht)’;
—
‘[d]iscussion among the producers present on rules subdividing quotas and customers among them. The rules were meant to apply also to SLM, Trame, Tycsa, DWK and A(ustria) D(raht). Customers that had not been assigned to a particular company could not be contacted by that company unless the company to which the customer had been assigned was first asked for its opinion. The rules also indicate that any producer that has exceeded its quota during a given quarter should have its quota reduced the following quarter. Penalties for failure to comply with quotas are also discussed as a possibility’;
—
‘CB confirms that the meeting concerned customer allocation and the rebalancing of quotas’;
—
‘Tréfileurope confirms the Italian market meeting’.
That information comes essentially from handwritten notes made by ITC at the material time and from statements made by CB and Tréfileurope after the inspections (see Annex B.10 to the defence, pp. 216 and 7, for ITC).
Examination of ITC’s handwritten notes relating to that meeting show that mention is made on the first page to a table setting out for various operators active in Italy figures relating to three references (‘1’, ‘2’ and ‘3’), while a last line states the total. For the column corresponding to Austria Draht, ‘300’ is given for reference ‘1’, ‘=’ for reference ‘2’ and ‘600’ for reference ‘3’. Those figures are less precise than those given for the other operators, but they are placed at the same level in the table and not elsewhere, which might suggest a distinction or separation.
Four names appear under the table, including Mr G.’s. There is also an indication ‘RDB 1080 Base!’, which may refer to a price to be charged. The second page of the document mentions the rules referred to by the Commission (second indent of paragraph 239 above). There is then an express reference to AD.
That document therefore supports the findings made by the Commission in the contested decision concerning the meeting of 12 January 2000, namely, as regards Austria Draht, and in addition to the exchange of commercially sensitive information, that Austria Draht actually participated, through Mr G., in defining certain rules on customer allocation and perhaps even price fixing with respect to one customer.
10. The meeting of 19 September 2000
The 10th meeting is the one held on 19 September 2000. It concerned ‘quota allocation discussions’ (contested decision, footnote accompanying recital 479). In the column relating to that meeting in Annex 3 to the contested decision, the Commission stated that the following were represented: Redaelli, CB (Mr C. and Mr G.), ITC, Itas, Tréfileurope and SLM. As already stated, in the introduction to that annex, the Commission made clear that a reference to Mr G. was to be understood in the light of the fact that he was representing both CB and Austria Draht.
In the column relating to that meeting in Annex 3 to la contested decision, the Commission presented the points covered by the meeting of 19 September 2000 as follows:
—
‘[c]ontrol fixed from 2 till 7 October’;
—
‘[e]xchange of information about exports. SLM wants to stay out of Club Europe. Approval in France within one month and Europe within 6 months. Germany immediately’;
—
‘[p]roposal list made by [Mr V.] [Tréfileurope]: detailed allocation of sales quotas (expressed in tons and in percentages) to Redaelli, ITC, Itas, CB, AFT, SLM, Trame, Tycsa, DK, A(ustria) D(raht) and TE (Tréfileurope)’;
—
‘CB confirms the meeting: sharing out the customers in the Italian market’;
—
‘ Tréfileurope confirms it as well’.
That information comes essentially from a minute drawn up by ITC at the material time and from statements made by CB and Tréfileurope after the inspections (see Annex B.10 to the defence, p. 218, for ITC and administrative file, pp. 16113-16).
In the light of that minute, it is apparent that, apart from a discussion of SLM’s commercial development, the discussions at that meeting covered, in particular, a proposal made by Mr V. to allocate 120000 tons, from which it can be seen that the share envisaged for Austria Draht came to 2400 tons, or 2% of that quantity. That document therefore endorses what is reported in the contested decision (see the third indent of paragraph 245 above).
11. The meeting of 10 June 2001
The 11th meeting is the one held on 10 June 2001. It concerned ‘quota allocation’ (contested decision, footnote accompanying recital 479). In the column relating to that meeting in Annex 3 to the contested decision, the Commission stated that the following were represented: Redaelli, ITC, Itas, Tréfileurope, SLM and Mr G. As already stated, that reference to Mr G. must be understood in the light of the fact that he was representing both CB and Austria Draht.
According to the evidence relied on by the Commission, the meeting of 10 June 2001 concerned a ‘[t]able showing market share in tons and in percentage for ITC, Redaelli, CB, SLM, Itas, [Tréfileurope] on the one hand (= 89% or 106800 tons), and de Trame, [Tycsa], DWK and Austria [Draht] on the other hand: 13200 tonnes (= 11%)’.
That information comes from a document found at ITC’s premises, which actually mentions the figures indicated above. The reference to ‘Austria’, in all likelihood ‘Austria Draht’, appears in that table with the comment ‘ ‘1 920’ tons (or ‘2000’ in another case), which represents 1.6% of the quantities mentioned (120000 tons). That document endorses what is reported in the contested decision (see Annex B.10 to the defence, p. 220).
12. The meeting of 23 October 2001
The 12th meeting is the one held on 23 October 2001. On that occasion, ‘Austria Draht [is] mentioned but without entries’ (contested decision, footnote accompanying recital 479). In the column relating to that meeting in Annex 3 to the contested decision, the Commission stated that the following were represented: Redaelli, CB, ITC, Itas, Tréfileurope, SLM and Mr G. As already stated, that reference to Mr G. must be understood in the light of the fact that he was representing both CB and Austria Draht.
According to the evidence relied on by the Commission, the meeting of 23 October 2001 concerned ‘[s]ales quotas set for Italian producers’ and ‘[c]omparison with actual sales on 30 September 2001 (74814 tons)’; that information was accompanied by a ‘[q]uestion mark for Trame, Spagnia, Austria and DWK’. That information comes from a document found at ITC’s premises (see administrative file, pp. 5106-07).
In the light of that document, it is apparent that the reference to ‘Austria’, in all likelihood ‘Austria Draht’, in a table setting out sales on 30 September 2001, in a total amount of 74814 tonnes, and drawing a comparison between what could actually be planned sales and sales made, is accompanied by a question mark, as for Trame, DWK and Spagnia.
That meeting can therefore be relied on only to establish that by his presence, Mr G., who was representing in particular Austria Draht in Italy, had access to anti-competitive information, including the abovementioned information on sales by Redaelli, CB, Itas, ITC, Tréfileurope and SLM, and also to other information on the price charged by certain operators trading in Italy, which is also on the ITC minute, that was capable of influencing his conduct on the market.
13. The meeting of 11 January 2002
The 13th meeting is the one held on 11 January 2002, which concerned ‘information exchange on past year and tentative quota allocation for 2002’ (contested decision, footnote accompanying recital 479).
In the column relating to that meeting in Annex 3 to the contested decision, the Commission stated that the following were represented: CB, ITC, Itas, Tréfileurope, SLM and Mr G. As already stated, that reference to Mr G. must be understood in the light of the fact that he was representing both CB and Austria Draht.
In the column relating to that meeting in Annex 3 to the contested decision, the Commission presented the points covered by the meeting of 11 January 2002 as follows:
—
‘[d]iscussions about customers’;
—
‘[e]xchange of detailed information about quantities sold by producers (Italian producers: Red, Itas, CB, ITC, SLM, [Tréfileurope (AFT)] and foreigners: Austria [Draht], DWK and Tycsa) in Italy in 2001’;
—
‘[d]iscussion about Trame’;
—
‘[r]egarding producers, planned and actual volumes and differences between the two for ITC, Redaelli, CB, SLM, Itas, AFT. Next meeting on 22 January, concrete proposals: reducing as much as possible the number of joint customers’.
That information comes from a minute drawn up at the material time by ITC and from a minute drawn up at the same time by SLM (see annexes G.8 and G.9 to the Commission’s reply to the measures of organisation of procedure, for ITC and SLM).
Two series of comments are called for following examination of those documents.
In the first place, in the light of the minute drawn up by ITC, it is apparent that the meeting concerned quantities sold in 2001, or a total of 112522 tons (see the second indent of paragraph 257 above). In that regard, it may be noted that the quantities relating to certain operators placed in a column on the left of the table in that minute, namely Redaelli, Itas, CB, ITC, Tréfileurope (AFT) and SLM, are stated precisely, unlike those relating to other operators placed in a column on the right of the table, namely Trame, Austria (in all likelihood Austria Draht, with 1300 tons) and DWK, for which the quantities are rounded and accompanied by question marks. As for Tycsa, its name, which was initially placed on the right, was crossed out and placed on the left of the table, still with the same quantity (4200 tons). That difference between the first six operators and the others is confirmed by the fact that the ITC minute also contains a table relating to quantities over three years (1999, 2000 and 2001) in which only Itas, CB, ITC, Tréfileurope (AFT), SLM (without any figures for 1999) and Redaelli are mentioned appear (see the fourth indent of paragraph 257 above). The above comments may also be made upon reading the SLM minute.
In the light of those documents, it can therefore be stated that the operators whose situations were discussed within Club Italia were divided into two categories. There is a main category, consisting of Redaelli, CB, Itas ITC and also Tréfileurope and, at least from 2000, SLM. For the operators in that category, the participants in the meeting of 11 January 2002 were in a position to have precise figures over three years. There is also a secondary category, consisting of Trame, Austria Draht and DWK, for which the proposed figures are clearly estimated and seem to have been used for the sole purpose of evaluating the total quantities sold in 2001 when the figures relating to the main operators had been presented.
In the second place, upon reading the content of the discussion on customers set out in ITC’s and SLM’s minutes (see the first indent of paragraph 257 above), it is possible to note references to comments by SLM and Redaelli. Likewise, Mr G.’s name appears again in those minutes in connection with that discussion, in particular as regards the customer ‘Fioroni x Algeria’, for which a price is mentioned (‘1115’ lire). While it is reasonable to think that that customer may be a customer of CB and not of Austria Draht, the fact none the less remains that, by his presence at the meeting of 11 January 2002 and his intervention, Mr G. participated in discussions having an anti-competitive content that may be of benefit to the entities which he represents.
Taken as a whole, the evidence on which the Commission relies does indeed make it possible to establish what is reported in the contested decision, although the degree of precision of the information exchanged at that meeting was not the same, depending on the category of operators concerned, as the information relating to Redaelli, CB, Itas, ITC, Tréfileurope and SLM is more precise and more complete than that relating to, at least, Trame, Austria Draht and DWK.
14. The meeting of 30 April 2002
The 14th meeting is the one held on 30 April 2002. On that occasion, it is ‘expressly stated that Mr G. should guarantee the quantity otherwise [Austria Draht] would be “kicked out” by Summer’ (contested decision, footnote accompanying recital 479). In the column relating to that meeting in Annex 3 to the contested decision, the Commission stated that the following were represented: Redaelli, ITC, Itas, Tréfileurope, SLM and Mr G. As already stated, that reference to Mr G. must take account of the fact that he was representing both CB and Austria Draht.
According to the evidence relied on by the Commission, the meeting of 30 April 2002 concerned ‘[the] imports situation in Italy (description of ‘dangers’) and on SLM leaving the club’; at the meeting, it was ‘threatened … that Austria Draht would be kicked out of the cartel if it would omit to guarantee volume “by Summer (2002)”’.
That information comes from a minute drawn up at the material time by ITC. It is apparent from that minute that, as regards ‘Austria’, or probably Austria Draht, the following is stated: ‘[Mr G.] deve garantire quantità altrimenti entro l’estate lo liquidano’. That statement appears in the list of different dangers (‘pericolo’) (see Annex A.16 to the application).
The above expressions give rise to discussion between the parties.
The applicants, which state that they were not given the opportunity before the adoption of the contested decision to comment on the Commission’s presentation of the facts, claim that the context was not taken into consideration. They thus question why a member of the cartel should be excluded when it does not import the agreed volume. The statement relating to Austria Draht does not permit the conclusion that there was a threat to exclude it, as the word ‘lo’ refers to ‘[Mr G.’] and the translation of ‘liquidare’ as ‘kick out’ is incorrect. So far as the participants in that meeting were concerned, ‘Austria’ was a ‘danger’ and could not be regarded as a member of Club Italia.
The Commission maintains that the interest of the participants in the meeting in the stabilisation of quotas and price levels by avoiding excessive supply in Italy is clear. In the present case, it is reasonable to consider that, so far as Austria Draht’s representation by Mr G. is concerned, Mr G. had to comply with the quota which had been allocated to him.
In the present case, the likelihood is that the participants in the meeting asked Mr G., as the representative of Austria Draht in Italy, to ensure that the quota which had been allocated to him would be observed. In general, that meeting may also be relied on in order to establish that, by his presence, Mr G. was put in a position to be aware of the dangers perceived by the main operators active in Italy, which enabled him to act accordingly.
To summarise: first, it is apparent from the foregoing that, upon examination of the documents relating to the 14 Club Italia meetings referred to in the contested decision, at which Mr G.’s presence is established, it is possible to find that he participated in anti-competitive agreements for and on behalf of Austria Draht, including the discussions on volumes and prices.
Second, it should also be observed that it is apparent from those documents that Austria Draht was perceived as a secondary operator, whose conduct had to be assessed, which sometimes led to estimates of the quantities sold or to questions in that regard, although it was not associated, as such, in the coordination put in place by the main operators on the Italian market. The role played by Austria Draht within Club Italia is not therefore strictly comparable with that played by the main operators active on the market, such as Redaelli, CB, Itas, ITC, Tréfileurope and, subsequently, SLM.
Third, in spite of the marginal role played by Austria Draht as an operator on the Italian market, where it was perceived as a secondary operator, it is apparent that, on several occasions within the infringement period, the main operators on that market took note of or highlighted the fact that Austria Draht was represented by Mr G., who also represented CB in Club Italia. That double representation was therefore a bonus both for those operators, who were able to influence a factor of competition, and for Mr G., who was able to act on the basis of the detailed information which he obtained while participating in Club Italia meetings.
15. The other meetings and documents referred to in the contested decision
The foregoing conclusions are reinforced by examination of the documents pertaining to the other meetings listed in the contested decision, namely those at which Austria Draht’s situation was discussed without Mr G.’s presence being reported and those at which his presence is reported and it is even stated that he was representing Austria Draht, although the discussions did not specifically concern Austria Draht’s situation.
By way of example, it should be observed that, on the occasion of the meeting of 22 December 1997, at which at least ITC was present, according to what is stated in the column relating to that meeting in Annex 3 to the contested decision, a series of tables were communicated relating to the quantities ‘alloc’ (probably allocated) to different customers by different suppliers, including ‘Austria’ (in all likelihood Austria Draht). A table drawn up on the occasion of that meeting corresponds to the customers supplied by Redaelli, ITC, Itas, Tréfileurope, SLM, Trame and Austria Draht.
In the table concerning Austria Draht, it is possible to see what quantity is supplied by that operator and also by the other operators in question to nine customers, while the names of two other customers were added manually, with a reference for each of them (‘PAMA’ and ‘RDB’) to the quantity supplied by Austria Draht (‘200’ tons). Those various tables show that the members of Club Italia had very precise information about the quantities supplied and the operators used, from the largest to the smallest, by the various Italian customers (see Annex B.10 to the defence, pp. 179 and 180, and administrative file, pp. 5333, 40-46).
Likewise, a number of documents in the file show that precise information on quantities sold by Austria Draht and others to their Italian customers was known by the members of Club Italia (see, for example, Annex 3 to the decision and Annex 10 to the defence, pp. 188 to 197, the tables ‘Trefolo 2001’, also set out at pp. 221 to 229). That information allowed the different members of Club Italia to know what share to give to Austria Draht.
Taken together, those documents show that precise information was continuously disclosed within Club Italia on the quantities sold by each of the members to the different customers, including with respect to Austria Draht.
Consequently, all of the abovementioned documents show, to the requisite evidential standard, that Austria Draht participated, through Mr G. and in so far as the activities entrusted to him are concerned, in the various practices decided upon within Club Italia.
C –
The various statements relied on by the parties
The statements relied on by the applicants, whether made following the statement of objections or in the context of applications for immunity or a reduction of the fine, cannot suffice to call into question the conclusion formulated in paragraph 279 above, which is based essentially on an examination of information contemporaneous to the cartel at issue taken from minutes of the various meetings attended by the participants in that cartel.
That contemporaneous information shows that Mr G. was perceived by the other members of Club Italia as a person representing Austria Draht in Italy. It also supports the view that, as Austria Draht’s agent for Italy, Mr G. provided the members of club with information relating to his activities and that, in any event, he obtained detailed information on Austria Draht’s competitors’ activities on the Italian market.
Furthermore, as the Commission states, that information is corroborated by the statements made by ITC and DWK in connection with their leniency applications. Thus, ITC, which provided a large number of documents relating to Club Italia, clearly states that Mr G. participated in those meetings on behalf of CB, but also as ‘Austria Draht’s representative in Italy’. Likewise, when referring to Mr G., DWK states that he is the ‘representative of [CB] and of Austria Draht in Italy’ (see Annexes B.4 and B.5 to the defence).
The content of Mr G.’s statement, indicating in essence that he participated in the Club Italia meetings on behalf of CB and that he never carried out anti-competitive activities on behalf of Austria Draht or communicated to that undertaking the information obtained at Club Italia meetings, and the statement submitted on behalf of Mr V. (Tréfileurope), from which it is apparent that Mr G. never participated in cartel agreements on behalf of Austria Draht, is therefore not sufficient to call into question the inferences that can be drawn from the abovementioned evidence, which to a large extent is contemporaneous with the facts. In the face of that evidence, those statements are, as such, insufficient to contradict the inferences that can be drawn from the other evidence in the file. In particular, reference should be made on that point to what emerges from the available evidence concerning the meeting of 24 June 1997 (see paragraphs 199 to 202 above), which shows that CB presented Mr G. to Tréfileurope and said that he represented Austria Draht and that, through him, in particular, it would be possible to find an equilibrium on the Italian market (see Annexes A.2 and A.3 to the application and Annex B.6 to the defence).
The same applies to the content of the three statements provided by the applicants on 14 October 2011, namely those of a manager of ITC and a manager of Redaelli, dated 27 July 2011, and that of a manager of SLM, dated 18 July 2011, which assert, in essence, that Mr G. acted at the cartel meetings solely for and on behalf of CB and that, although those three individuals were aware that Mr G. was also representing Austria Draht, he never provided information about that company. Those statements, made at the stage of the contentious proceedings, are not sufficient to call into question the inferences that may be drawn from the other evidence in the file. While those statements, too, show that the representatives of those three undertakings were aware that Mr G. was Austria Draht’s representative in Italy, the assertions which they contain and which are designed to establish that Mr G. acted solely on behalf of CB do not alter the fact that Mr G.’s mere presence at the Club Italia meetings enabled him to be aware of confidential information about customers and prices. Furthermore, it is clear from the file that, on a number of occasions and in the absence of any other reasonable explanation, it is reasonable to think that the individual who communicated information relating to Austria Draht’s particular situation is Mr G.
As for the statements made on behalf of other undertakings that participated in Club Italia, which were mentioned by the parties, it is apparent that, although CB did not mention Austria Draht as a member of Club Italia, that may be explained by the fact that Mr G. mainly represented CB and not Austria Draht and that he was regarded as part of CB (see, for example, his presence at the hearing before the Commission, in the delegation representing CB). It follows from the facts, however, and in particular from Tréfileurope’s report of the meeting with CB on 24 June 1997, that Mr G. was introduced by CB as a person representing CB, but also Austria Draht, from which he could therefore derive an advantage. Nor, as regards SLM, Redaelli and Trame, is the fact that those undertakings do not expressly mention Austria Draht among the various members of Club Italia not sufficient to call into question the inferences that can be drawn from the other evidence in the file. However, that failure to mention Austria Draht reinforces the general impression to emerge from the evidence described above, that in any event Austria Draht was regarded as a secondary operator so far as the Italian market was concerned.
D –
Duration of the infringement in which Austria Draht was found to have participated
As regards Club Italia, it is apparent to the requisite evidential standard from the file that Austria Draht’s participation in the cartel commenced at the meeting of 15 April 1997 and ended on 19 September 2002, when the Commission carried out inspections at the premises of, among others, Redaelli, CB, Itas, ITC and Tréfileurope.
Consequently, the file shows to the requisite evidential standard that Austria Draht and, in consequence, voestalpine participated in Club Italia, through Mr G., to whom Austria Draht had entrusted the marketing of its PS in Italy, from 15 April 1997 until 19 September 2002.
E –
Conclusion on the first plea
It follows from the foregoing that the Commission has established to the requisite legal standard the reasons why Mr G.’s conduct within Club Italia could be imputed to Austria Draht and to voestalpine so far as the activities entrusted to him in Italy are concerned.
The first plea must therefore be rejected.
III –
Second plea, alleging that the Commission erred in considering that the applicants participated in a single infringement combining, in particular, Club Italia and Club Europe
In the second plea, voestalpine and Austria Draht claim that, even if the Commission is entitled to impute to Austria Draht the unlawful conduct within Club Italia of its agent in Italy, it cannot impute to Austria Draht participation in a single infringement combining Club Italia and the other anti-competitive arrangements, as it did in the contested decision. In particular, the applicants maintain that Austria Draht did not participate in the pan-European agreements and that it was not aware, and could not be aware, of the overall plan.
The applicants’ argument that Austria Draht’s non-participation in Zurich Club, the Southern Agreement or Club Europe should be sufficient for a finding that they did not participate in the single infringement must be rejected at the outset. It follows from the case-law that an undertaking may be found to have committed such an infringement if it is shown that intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk. Thus, an undertaking may have participated directly in only a part of the anti-competitive conduct constituting the single infringement, but also have been aware of all of the other unlawful conduct or have been able reasonably to foresee it and been ready to take the risk, in which case the Commission is entitled to impute to that undertaking liability for the entire unlawful conduct constituting such an infringement (see, to that effect, paragraphs 119 to 124 above).
In the present case, that is the approach taken by the Commission, which found that Austria Draht participated in the single infringement owing, in particular, to its participation in Club Italia through Mr G., its agent in Italy, and also to clear indicia suggesting that Austria Draht was sporadically involved in anti-competitive discussions at European level, which meant that it was aware of the European level of the cartel at an early stage (see paragraph 64 above).
In that regard, although it is clear that the objectives of Club Italia and Club Europe did not coincide and might even be contradictory, since the main operators in Club Europe sought, in particular, to coordinate their activities to oppose exports to Northern Europe by the main operators in Club Italia, which sought to facilitate those exports in order to sell their production, the fact none the less remains that, as the contested decision correctly points out, the overall plan that characterises the single infringement defined by the Commission lies in the pursuit of an objective common to all those operators, the plan to restrict competition on the market for PS, whether taken at European level or at national level. That overall plan was designed to implement and ensure compliance with a general balance between the various arrangements constituting the single infringement, including those discussed within Club Europe and those discussed within Club Italia (contested decision, recitals 610 to 621).
That observation having been made, it is appropriate to examine the parties’ arguments relating to the different elements taken into consideration by the Commission in the contested decision in order to characterise the applicants’ participation in a single infringement.
A –
Participation in a component of the single infringement
In order to establish that the applicants participated in a single infringement, the Commission stated, first of all, that Austria Draht had ‘directly participated in … Club Italia through its sales agent in Italy, … [Mr G.], from 15 April 1997 onwards until 19 September 2002’ (contested decision, recital 769) (see paragraphs 76 to 82 above).
It follows from the examination carried out under the first plea that, although the Commission does not have, in the present case, evidence to show that Austria Draht may have had the slightest information on the anti-competitive conduct of its agent at the various Club Italia meetings in which he participated, it is none the less entitled, for the reasons stated in the contested decision in that regard, to conclude that agent and principal formed an economic unit as regards the activities entrusted to Mr G. by Austria Draht (see paragraphs 167 to 178 above).
The fact that Austria Draht was unaware of its agent’s anti-competitive conduct is irrelevant, however, both for the purposes of characterising Austria Draht’s participation in Club Italia and for the purpose of satisfying the condition linked with participation in a component of the single infringement when establishing that the undertaking participated in such an infringement. In either case, it must be considered that, since Mr G. and Austria Draht together form an economic unit, the principal is liable under competition law for the unlawful conduct of the agent in the context of the activities entrusted to him.
When Mr G. acted within Club Italia on behalf of Austria Draht, that is to say, in the context of the activities entrusted to him, he is deemed to have acted for Austria Draht and thus renders his principal liable.
B –
Awareness of the pan-European level of the cartel
It should be noted that the Commission expressly states in the decision that ‘Austria Draht should not be held liable as a direct participant in the Zurich Club or Club Europe’ (contested decision, recital 652).
Examination of the facts confirms, moreover, that such an assessment is correct, since it is not apparent from the file that the Commission was in a position to find that the applicants, for territories other than Italy in which Austria Draht sold PS, engaged in conduct of the same type as it can impute to Austria Draht, through Mr G., in the case of Club Italia. Thus, although it is possible, in the light of the evidence relied on in the first plea, to identify the names of Austria Draht’s Italian customers and to see Austria Draht’s name (or at least the initials ‘AD’) in the quota allocation tables for Italy, such indications appear only with respect to the Italian territory.
However, although it states that Austria Draht is not considered liable for direct participation in the Zurich Club (which ended before 15 April 1997) or in Club Europe, the Commission also refers to ‘clear indications that Austria Draht was sporadically involved in anti-competitive discussions at pan-European level and therefore was aware of the pan-European level of the cartel as of an early stage’ (contested decision, recital 652) (see paragraph 83 above).
1. Evidence relied on in the contested decision
In order to prove ‘individual awareness of participation in a larger scheme’, the Commission put forward a number of items of evidence relating to Austria Draht (see paragraph 83 above).
First, the Commission observed that, as early as 1995-1996, or well before 15 April 1997, the date taken as the starting point of Austria Draht’s participation in the infringement, Austria Draht had attended meetings of the Zurich Club, where a possible new quota arrangement was discussed. The Commission relies here, as an example, on the minutes of the meetings of 28 May 1995 and 9 January 1996 (contested decision, recital 653).
Second, according to the Commission, Austria Draht acknowledged having participated in a number of meetings of Club Europe, which, it maintained, did not have an anti-competitive content. These were the meetings held on 14 October 1998, 9 November 1998, 28 February 2000 and 27 September 2001. In that regard, the Commission considered that, at least in the case of the meeting of 28 February 2000, the question of volumes and prices had been discussed. Likewise, the contested decision states that at the meeting of 27 September 2001 a manager of Austria Draht had been invited by an employee of DWK to participate in the expanded Club Europe (contested decision, recitals 652 and 653).
Third, the Commission observed that, at the 16 December 1997 Club Italia meeting (which Mr G. did not attend), it was mentioned that Austria Draht ‘was not part of … Club [Europe] but wanted to be kept informed’. Next, the Commission observed that, at subsequent Club Italia meetings, which Mr G. attended on behalf of Austria Draht, participants were informed about the discussions and agreements in Club Europe. Last, the Commission stated that there were several indications that, during the pan-European expansion period, Austria Draht had been involved in quota and customer allocation discussions regarding particular countries and had been present through its agent in Italy, Mr G., at least six meetings devoted to the expansion of Club Europe (the meetings held on 27 September 2001, 10 and 11 October 2001, 6 November 2001, at which Mr G. was also indicated as possible country coordinator for Italy, together with Mr A. (Itas) and Mr C. (CB), 5 and 6 June 2002, 1 July 2002 and 2 July 2002) (contested decision, recital 653).
On the basis of those factors, the Commission concluded that ‘Austria Draht, while participating in Club Italia, was or should have been aware that the collusion in [that] Club was part of an overall plan to stabilise the PS market in order to avoid price decline, which Club Italia shared with the pan-European arrangements’ (contested decision, recital 654).
2. Analysis of the evidence relied on in the contested decision
a) Evidence relating to the Zurich Club
As regards the evidence relied on in respect of two Zurich Club meetings in which Austria Draht participated, the content of that evidence should be borne in mind.
The meeting of 28 May 1995
The content of the Zurich Club meeting held on 28 May 1995 is described in Annex 2 to the contested decision. That meeting was held in Barcelona (Spain) on the fringe of a meeting of the Eurostress Information Service (ESIS), the main trade association of PS producers in Europe, of which Austria Draht was a member.
In that regard, it must be borne in mind that, in general, the Commission stated that meetings of ESIS, established in Düsseldorf (Germany), are not considered anti-competitive in themselves. The Commission noted, however, that the cartel participants sometimes met informally on the fringe of those ESIS meetings to discuss and agree on quotas, prices and arrangements with customers. To substantiate that assertion, the Commission relies on the documents sent to it by the Bundeskartellamt, from which the following emerges:
‘The mornings of the first day [of these ESIS meetings] were in fact used by the participants to have informal discussions. The aim of these informal discussions was to come to internal market arrangements …’ (contested decision, recital 97).
In the column relating to the Zurich Club meeting of 28 May 1995 in Annex 2 to the contested decision, the Commission stated that the following were represented: Tréfileurope, Nedri, WDI, DWK, Tycsa and Emesa, that is to say, the permanent members, and also ‘Austria’. According to the Commission, ‘Austria’ means Austria Draht, since Austria Draht confirmed its participation in that meeting in its reply to the statement of objections.
In the column relating to that meeting in Annex 2 to the contested decision, the Commission presents the points covered at the Zurich Club meeting of 28 May 1995 as follows:
—
‘[s]tatement (communicated probably to [a representative of Redaelli]) that the Club accepts to reduce exports [to Italy] and increase the imports (into Europe) from Italy. It is added that “Aldé” is “considered as import”’;
—
‘[c]orrection of numbers for Austria and Spain’;
—
‘[d]iscussion on Italy. Question asked how to meet the export quotas requested by the Italian producers. [A representative of Redaelli] threatens to obstruct any market. He does not want to increase prices and to impose them on the others’;
—
‘Tycsa … asks whether other Club members are ready to give in. The answer is nobody.’;
—
‘[f]ollows a new tentative to set quotas on the basis of sales outlining the number of sales for A[ustria]D[raht], WDI, Köln [DWK], Tréfil[europe], Nedri, Tycsa, Eme[sa]. The Italian producers are separately mentioned: [Redaelli] + [ITC] + [Mr C.] (CB) + Itas’;
—
‘[t]he meeting concludes with 1) the position of the Italian producers ([a representative of Redaelli] offers max 20000 [tons] and question when CB and Itas will accept?) 2) fixing a new meeting date in Amsterdam on 8 June’.
That information comes from Emesa’s reply of 25 October 2002 to a request for information by the Commission, in which Emesa mentioned several ‘unofficial meetings with members of ESIS’, with the aim of ‘discussing prices, quotas and proposed contracts with large customers’, and also from Emesa notes, submitted by ArcelorMittal on 28 June 2007, which include a minute of that meeting prepared by Mr P., Emesa’s representative (see Annex A.41 to the application and administrative file, pp. 11491 and 11500, and Annex B.11 to the defence).
Although examination of the abovementioned documents shows that the minute of the Zurich Club meeting of 28 May 1995 taken by Mr P. includes, in essence, the indications taken into consideration by the Commission in the contested decision, that does not suffice to justify the conclusions drawn from those indications as concerns Austria Draht.
First, it is apparent from Emesa’s reply to the Commission’s request for information that the participants in the Zurich Club meeting of 28 May 1995 were Tréfileurope, Nedri, WDI, DWK, Tycsa and Emesa, as indicated by the names of the individuals given in that reply in connection with that meeting. It also follows from that reply that the names of Austria Draht or of one of its representatives are not among the names of the participants in any of the 21 ‘unofficial meetings with members of ESIS’ referred to by Emesa for the period 9 June 1994 to 27 September 2001.
Second, it is apparent from the applicants’ reply to the statement of objections that, contrary to the Commission’s assertion, Austria Draht confirmed that it was present at the ESIS meeting held in May 1995 and not at the ‘unofficial meeting with members of ESIS’ to which Emesa refers. The applicants also submitted relevant evidence to show that Austria Draht’s representative at the ESIS meeting did not arrive in Barcelona until 29 May, and not on 28 May, the date on which the unofficial meeting referred to by Emesa was held (Annex A.7 to the application, pp. 835 to 837 of the application).
On that point, the Commission claims that it cannot be precluded that Austria Draht’s representative attended the ‘second session’ referred to in Emesa’s notes after arriving in Barcelona. However, that assertion is not accompanied by conclusive evidence, having regard, in particular, to the fact that there is no reference to Austria Draht’s representative in the minute prepared by Mr P. In addition, it is apparent from the contested decision that the Commission acknowledges that the informal meetings held on the fringe of the ESIS meetings generally took place on ‘the mornings of the first day’ (see paragraph 299 above).
Third, as regards the content of the indications taken from Mr P.’s minute of the meeting of 28 May 1995, which are set out in essence in the contested decision (see paragraph 311 above), it should be observed that the only reference that might implicate Austria Draht relates to the fact that, at the ‘first session’, a list was drawn up of the quantities sold by certain operators, and that on that occasion the initials ‘AD’ appear, together with the number ‘947’, followed by the number ‘1500’ and the reference ‘final 1500’ (the last reference is incorrectly given as ‘500’ in the transcribed and translated version accompanying Mr P.’s original notes). The minute drawn up by Mr P. also states such references for WDI, DWK, Tréfileurope, Tycsa, Emesa and Nedri.
When questioned about the significance of that reference, the applicants claimed that, apart from the fact that Austria Draht’s representative was not present at that meeting, it should be observed that the minute prepared by Mr P. refers, when it mentions export quotas to the rest of Europe requested by producers in Italy, to a share estimated at 1.5 for ‘Austria’, which corresponds to the quantity of ‘1500’, sold or requested, not by Austria Draht but by the producers in Italy. The Commission is not in a position to undermine that interpretation, which seems to be conceivable in the light of the minute.
As for the reference ‘Mr T. [the representative of DWK] + Austria’, which appears in the minute prepared by Mr P., there is no particular reason to take the view that that expression could not simply refer to Austria, but must be interpreted as a reference to Austria Draht. In principle, such an interpretation should also have emerged from the list of participants in the unofficial ESIS meetings submitted by Emesa. In addition, it is apparent from the file that it was frequently DWK’s representative who acted as coordinator of the cartel participants for Austria (see, for example, the information relating to the Club Europe meeting of 27 September 2001).
In conclusion, none of the evidence cited by the Commission is capable of establishing in a convincing manner that a representative of Austria Draht participated in the Zurich Club meeting held on 28 May 1995, the content of which, moreover, does not show conclusively that Austria Draht may have taken part in or even been aware of the discussions in the Zurich Club concerning the quota to be granted to the Italian producers in order to reduce the competitive pressure which they exerted outside Italy.
The meeting of 9 January 1996
The content of the Zurich Club meeting held on 9 January 1996 is described in Annex 2 to the contested decision. This meeting was held in Brussels (Belgium), on the fringe of an ESIS meeting.
In the column relating to that meeting in Annex 2 to the contested decision, the Commission stated that the following were represented: Tréfileurope, Nedri, WDI, DWK, Tycsa and Emesa, and also Redaelli and Austria Draht. Thee applicants acknowledge that Mr Ro., one of the managers of Austria Draht, was present at the ESIS meeting (see Annex A.7 to the application, p. 54)
In the column relating to that meeting in Annex 2 to the contested decision, the Commission presents the points covered by the Zurich Club meeting of 9 January 1996 as follows:
—
‘[d]iscussion on Italy: it was noted that the Italian producers at the meeting of 19 September reached an (internal) consensus. Reminder that it is time to find a common solution on a quota system, according to Mr [T.] [of DWK] “whatever that means”’;
—
‘[d]iscussion among Club members on the future of the Club. — Tréfileurope (Mr [P.]) states that everything collapses without a quota system. It is for him not a “mad war”. He observes that the year 1996 is contracted and suggests to wait for “the proposals”’;
—
‘NDI, WDI, Austria Draht and Emesa express doubts to reinforce [a quota system] again and Tycsa recommends professionalism’;
—
‘[s]eem to be in favour of a new quota system: Tycsa, Emesa, Nedri (NDI), Austria Draht and WDI. The French are not. WDI also said it does not see any sense for the Club in this moment’;
—
‘[n]evertheless, a discussion on a tentative allocation of quotas took place. Table discussed (expressed in percentage) per country for information purposes only involving DWK + Trefd[Tréfilarbed], FU[Fontainunion], STCO [Sainte Colombe], WDI, NDI, I [Italy], AU [Austria Draht], SP [Spain i.e. Emesa and Tycsa groups] based on the 1994 market. The countries involved are “D-F-I-NL-UBL-SP-AUS”’.
That information comes from Emesa’s reply of 25 October 2002 to a request for information from the Commission, in which Emesa mentioned several ‘unofficial meetings with members of ESIS’, with the object of ‘discussing prices, quotas and draft contracts with large customers’, and from Emesa’s notes, submitted by ArcelorMittal on 28 June 2007, which include a minute of that meeting drawn up by Mr P., Emesa’s representative (see Annex A.41 to the application, Annexes B.9, B.11 and B.13 to the defence, Annex G.14 to the Commission’s reply to the measures of organisation of procedure).
In the light of those factors, three observations may be made concerning Austria Draht.
First, Austria Draht’s participation in that meeting is not disputed. That is significant, because Austria Draht’s name is not on the list of participants in the unofficial ESIS meetings submitted by Emesa. In addition, unlike the list of participants in the meeting drawn up by Mr P. in his minute of the meeting of 28 May 1995, the minute which he drew up of the meeting of 9 January 1996 refers both to the names of the representatives of the participating undertakings and to the countries which they represent. There is thus a reference to Austria, Holland, Belgium and France, but also to ‘AD’, ‘NDI’, or ‘Mr [P.] [of Tréfileurope]’.
The reference to Austria no longer seems to be an anomaly or an addition to the person of Mr T., the representative of DWK (see paragraph 319 above) and, in any event, Austria Draht’s participation in the meeting is not disputed.
Second, as the Commission claims, it is possible to take the view that, on the occasion of the meeting of 9 January 1996, Austria Draht’s representative was aware of the difficulties encountered by Club Europe in coordinating with Club Italia. It is important to note here that one of the undertakings present at that meeting is Redaelli, which, at the time of the cartel, represented the main operators of Club Italia in their discussions with the Zurich Club. It is thus apparent from the content of that meeting, which is reported in a handwritten minute made at the material time, that, in view of the abovementioned difficulties, it was envisaged that a new system of quotas to be granted to the Italian producers would be put in place in order to reduce the competitive pressure which they exercised outside Italy.
That export quota is one of the key elements of the overall plan characterising the single infringement, since it was intended to coordinate the operators present within the Zurich Club with the competing operators present within Club Italia.
Third, as the applicants submit, it is also possible to observe that Austria Draht, like other undertakings, expressed doubts about the introduction of a quota system. Those doubts may be qualified, however, by the fact that Austria Draht also seemed to be in favour of a new quota system.
In any event, the applicants claim that, just after the Zurich Club meeting of 9 January 1996, it was stated at a Club Italia meeting held on 13 February 1996, where the representatives of Redaelli (the same individual who had attended the meeting of 9 January 1996), CB (Mr C.), ITC and Itas were present, and where the approach to be taken to the foreigners was discussed, that ‘Austria Draht would not enter’ (see the column corresponding to that meeting in Annex 3 to the contested decision and Annex A.42 to the application). That assertion is apparent from a handwritten minute taken by ITC’s representative at that meeting.
Such an indication permits the view that, at least in the opinion of Redaelli’s representative — the principal coordinator between the Zurich Club and Club Italia — the ‘doubts’ expressed by Austria Draht’s representative at the Zurich Club meeting of 9 January 1996, as reported by Emesa’s representative at that meeting, bore more resemblance to actual distancing from the content of the anti-competitive discussions that may have taken place at that meeting.
Likewise, as regards the table mentioned in the minutes of the meeting of 9 January 1996 prepared by Mr P. (see Annex B.13 to the defence), it should be noted that that table, which was said to be presented ‘for information only’, merely reproduces, as regards the column ‘Aus’, the same figures identical as those reproduced in recital 149 to the contested decision for 1994, and concerning which the Commission observed, repeating the information supplied by the leniency applicant, DWK, that ‘Austria Draht would not have participated in the Zurich Club but would have been included in the table only for “the sake of completeness”’.
Furthermore, the applicants claim that, in addition to the elements referred to above, it is apparent from the file that Austria Draht did not participate in the numerous Zurich Club or Club Europe meetings that followed the meeting of 9 January 1996.
In that context, it may be thought that, as the applicants claim, even if Austria Draht’s representative at the ESIS meeting was present at the Zurich Club meeting the content of which is reported in the minute prepared by Mr P., that representative did not supply the slightest information about Austria Draht. It is also possible to consider that, although Austria Draht’s representative may have been aware of the discussions about the quotas to be granted to the Italian producers in order to reduce the competitive pressure which they were exerting outside Italy — and it is not apparent from the documents in the file that he was —, he would then have stated that Austria Draht would not participate in that agreement.
In conclusion, it follows from the foregoing that the Commission is in a position to consider that a representative of Austria Draht was present at the Zurich Club meeting of 9 January 1996 and that on that occasion it was informed of one of the essential elements of the overall plan characterising the single infringement, namely that discussions took place between the permanent members and the main Italian producers, represented by Redaelli, with a view to granting a quota to the Italian producers in order to reduce the competitive pressure which they were exerting outside Italy.
Although the Commission cannot rely on the abovementioned evidence to establish that Austria Draht participated in the Zurich Club, which, moreover, the Commission did not do, it may none the less refer to it, as it does in recital 652 to the contested decision, as ‘[an indication] that Austria Draht was sporadically involved in anti-competitive discussions at pan-European level and therefore was aware of the pan-European level of the cartel as of an early stage’.
The fact that that awareness precedes the beginning of the infringement period defined by the Commission in respect of the applicants is irrelevant in that regard.
b) Evidence relating to Club Europe
As regards the elements put forward by the Commission concerning the Club Europe meetings in which Austria Draht participated directly, through its employees and not through Mr G., its commercial agent for Italy, it is appropriate to recall the content of those elements.
As a preliminary point, it should be observed that, while the Commission refers to at least four Club Europe meetings in the contested decision, namely those held on 14 October 1998, 9 November 1998, 28 February 2000 and 27 September 2001, it also refers in its pleadings to the meeting of 25 September 1997, at which a representative of Austria Draht was present and at which the discussions were about a price agreement, according to what is stated by Nedri in its leniency application. However, the applicants establish convincingly that, contrary to Nedri’s unsubstantiated assertion, Austria Draht’s representative cannot have been present in Düsseldorf in order to attend that meeting, since he was in Salzburg (Austria) on that date (Annex A.7 to the application, p. 46 and pp. 815 and 816). It is also clear that, in the column in Annex 2 devoted to the Club Europe meeting of 25 September 1997, the Commission did not state that a representative of Austria Draht was among the participants.
In that context, it cannot be established conclusively that Austria Draht can have taken part in, or even been aware of, the Club Europe discussions on a pricing agreement at the meeting of 25 September 1997. It should also be stated, more generally, in the light of the evidence put forward on that point by the Commission, that the statements made by Nedri in its leniency application concerning Austria Draht are neither self-incriminating nor corroborated by other evidence supplied by that undertaking.
The meeting of 14 October 1998
The content of that meeting, held in Düsseldorf, is described in Annex 2 of the contested decision, where it is stated in the corresponding column that it concerned ‘EU market developments in 1999’ and that ‘Nedri and Tréfileurope both confirm the presence of Austria Draht’.
The undertakings represented at that meeting were the permanent members and Austria Draht.
That information comes, essentially, from the information supplied by Nedri in its leniency application, where it mentioned the name of a representative of Austria Draht as an individual present and, moreover, from the information submitted on the same basis by Tréfileurope, which referred to the presence of the ‘Austrians’ at that meeting (Annex B.7 to the defence and Annexes H.8 to H.10 to the Commission’s reply to the measures of inquiry).
In the light of the documents supplied to the Commission in that respect, it must be held, however, that the abovementioned information, supplied by undertakings seeking a reduction of their penalty after having been subject to an inspection by the Commission, does not, strictly speaking, establish any factors capable of being characterised as anti-competitive agreements.
In the Commission’s view, the reference to a ‘discuss[ion of] EU market developments’ is a ‘euphemism’ used by Nedri in its leniency application. That assertion, made in 2002 about a meeting held in 1998, does not, however, present the necessary degree of precision to support the inference that Austria Draht could be aware of the overall plan characterising the single infringement.
Likewise, it is clear that the assertions made by Tréfileurope are very general. The reference to the presence of the ‘Austrians’ in Düsseldorf in connection with the meeting of 14 October 1998 is not sufficient to show that on that occasion Austria Draht participated in a meeting having an anti-competitive object on the ground that, according to Tréfileurope, that meeting was part of a series of meetings at which anti-competitive discussions took place.
As such, Austria Draht’s presence at the meeting of 14 October 1998 is not decisive and cannot be relied on by the Commission to establish to the requisite evidential standard that it represents an ‘indication that Austria Draht was sporadically involved in anti-competitive discussions at European level and therefore was aware of the pan-European level of the cartel as of an early stage’. In order to do so, the Commission ought also to have proved the anti-competitive nature of the discussions at issue by producing evidence more precise than general assertions, lacking in clarity or insufficiently precise, made by leniency applicants.
The meeting of 9 November 1998
The content of that meeting, held in Düsseldorf, is described in Annex 2 to the contested decision, where it is stated in the corresponding column that, according to Tréfileurope, the aim of that ‘semi-annual meeting ESIS’ was to ‘discuss EU market developments in 1999’.
Like the preceding information, that information comes essentially from Nedri’s leniency application, which refers to the same individuals as those present at the meeting of 14 October 1998 (Annex B.7 to the defence and Annex H.10 to the Commission’s reply to the measures of inquiry).
In its leniency application, Tréfileurope referred only to the fact that a semi-annual meeting of ESIS took place, without mentioning the individuals present at that meeting (Annex H.9 to the Commission’s reply to the measures of inquiry).
Here, too, it must be held that the mere fact that a representative of Austria Draht was present at an ESIS meeting cannot suffice to establish to the requisite evidential standard that it constitutes an ‘indication that Austria Draht was sporadically involved in anti-competitive discussions at European level and that it was therefore aware of the pan-European level of the cartel as of an early stage’. That meeting is therefore not decisive.
The meeting of 28 February 2000
The content of that meeting, held in Düsseldorf, is described in Annex 2 to the contested decision, where it is stated in the corresponding column that that meeting concerned the ‘[i]mplementation of [the] May 1997 agreement’ and a ‘discussion on realised sales’.
The undertakings represented at that meeting were Tréfileurope, Nedri, WDI, DWK and Tycsa, and also Redaelli, Austria Draht, ITC and Socitrel.
That information comes from Nedri’s leniency application of 23 October 2002 (see administrative file, p. 7593).
The column in Annex 2 to the contested decision relating to the Club Europe meeting of 28 February 2000 also refers to a ‘debriefing’ concerning the ESIS meeting, prepared by that association and dated ‘29 February 2000’, which was communicated to the Commission by Austria Draht (see Annex A.44 to the application), the content of which is as follows:
‘Mr [T.] [of DWK] observed that, despite an increase in volume on the European market, no price increase for PS could be pushed through. Since it is likely that this trend will continue, it should be absolutely fought against [this trend]. It seems, however, not possible to reach this goal.’
Here again, the documents cited by the Commission are not very conclusive as regards Austria Draht.
First, as regards the ‘[i]mplementation of [the] May 1997 agreement] and the ‘discussion on realised sales’ to which Nedri refers, it is apparent from a table relating to that issue cited in Annex 2 to the contested decision that the sales in question were sales made per quarter in 1999 by the permanent members, that is to say, Tréfileurope, Nedri, WDI, DWK, Tycsa and Emesa. There is no reference to Austria Draht in that table.
As for the ‘May 1997 agreement’, it is apparent from Annex 2 to the contested decision that on 12 and 13 May in Lyons (France) an ‘agreement on quotas’ was reached among the permanent members, all of which were present at that meeting. Under that agreement, the six producers were to exchange information on their sales each quarter. Austria Draht is not reported as having been present at that meeting, in respect of which the Commission has information coming from Nedri, Tréfileurope, Emesa and Arcelor España (for the latter, via the Emesa notes submitted in 2007).
On the assumption that a representative of Austria Draht did attend the meeting to which Nedri refers, his presence would have enabled Austria Draht to be informed of the existence of the ‘May 1997 agreement’ and of the content of the sales made in 1999 by each permanent member of Club Europe. In such a case, the Club Europe meeting of 28 February 2000 would indeed constitute an ‘indication that Austria Draht was sporadically involved in anti-competitive discussions at European level and that it was therefore aware of the pan-European level of the cartel as of an early stage’.
Since, however, Austria Draht’s presence at the meeting is mentioned by only one of the participants, namely Nedri, it must be considered that, as such, that assertion cannot suffice to establish that Austria Draht was present at the discussion among the permanent members of the agreement which they concluded in May 1997. Likewise, it is unclear why the information to which Nedri refers might have been discussed before a person representing a company which was not a party to the agreement at issue. It seems more likely that the discussion in question took place outside the official framework of ESIS at an unofficial meeting between the six Club Europe producers.
Second, in the light of the minute of the ESIS meeting prepared by that association and produced by the applicants, it is clear that the list of persons present at the meeting of 28 February 2000 (the meeting referred to by Nedri) and the list for the meeting of 29 February 2000 (the meeting referred to by ESIS) do not coincide. According to Nedri, whose statement is used by the Commission, persons representing Tréfileurope, Nedri, WDI, DWK and Tycsa, and also Redaelli, Austria Draht, ITC and Socitrel, were present at the Club Europe meeting of 28 February 2000. According to the applicants, which refer in that regard to the ESIS minute of the meeting of 29 February 2000, the persons mentioned by Nedri were present at that meeting, but five persons not mentioned by Nedri were also present. It is also clear that Mr K., of Tréfileurope, who according to Nedri was present at the Club Europe meeting of 28 February 2000, is not on the list of persons who, according to ESIS, were present at the meeting of 29 February 2000.
Those discrepancies also suggest that there were two separate meetings, the unofficial Club Europe meeting and the later, official, ESIS meeting.
In that regard, it may also be observed that, as the applicants claim, unlike at the other meetings, the representative of Austria Draht at that ESIS meeting was not one of its traditional representatives, namely one of its management, but an employee of that company. That, in the applicants’ submission, may be explained by the fact that the ESIS meeting in question was to be devoted, in particular, to a technical standard (standard EN 10138). In that context, it seems even less likely that the representatives of the permanent members would decide to involve in their discussions not one of the managers of Austria Draht but one of its employees whom they had not previously met.
In conclusion, the Commission is not in a position to establish convincingly that a representative of Austria Draht participated in the Club Europe meeting of 28 February 2000.
The meeting of 27 September 2001
The content of that meeting, held in Düsseldorf, is described in Annex 2 to the contested decision. In the column of that annex relating to that meeting, the Commission presents the points covered by the meeting as follows:
—
‘Nedri …: informal meeting at the margin of the official ESIS meeting with discussion of the market situation, supplies (quota) of Italian producers in Europe and minimum prices …’;
—
‘Emesa: […] [f]ixing of meetings with the coordinators (‘captains’), in Italy on the 12th, in France [on] the 18th, in the Netherlands on [the] 10th and in Spain [on] the 2nd. [A list of coordinators is also included]: ‘[a representative of WDI] — Germany; [a representative of Tréfileurope] — Belgium + France; [a representative of Nedri] — Addtek; [a representative of DWK] — Austria — Tycsa — ‘no!’;
—
‘[d]iscussion on real v. proposed sales (“estable v propuestas”) per country (the Netherlands, Germany, Austria, Switzerland, Belgium, France)’;
—
‘[a representative of Nedri] informs on the discussions with Italy, i.e. on 4 October, a meeting with the Italian producers would be held to try to convince them to collaborate; if not Nedri and other producers would enter Italy’;
—
‘[i]nformation exchange on the market situation in Europe, and in Germany in particular. [A representative of Nedri] notes that other markets should be explored before decreasing the prices and informs that the Italian producers have a price of 11000 Liras (which “subsidises” their exports at low price) and that they are seeking to sell 60000 tons in Europe (14000 in the Netherlands, 10000 in Germany, 18000 in France, 2000 in Spain, etc.)’;
—
‘[n]otes found at Emesa and Tycsa: “Competitors meeting to try to control the Central European Market” (Club Europe meetings): Discussion on the market situation in Germany and in Europe. Prices of several types of products in several European countries were discussed in detail and minimum prices were fixed (in euros) for the year 2002 for the Netherlands, Belgium, France, Austria, Switzerland, Germany, Spain and Portugal per product (according to diameter) with a surcharge in France and Belgium for smaller clients. The [explanation] to be given to the clients for the price increase is the increase in the price of wire rod and the energy costs. Emesa and Tycsa note that the effective implementation of the agreed prices for 2002 was still dependent on the talks that Nedri was going to have with the Italian and the Hungarian producers on this issue’;
—
‘Tycsa: [a representative of Nedri] is in contact with the Italian and Hungarian producers as regards the prices to be respected and [a representative of Nedri] will keep the other Club members informed. It was noted that the price for the (coming) year depended on the outcome of these discussions. All participants agree that in Southern Europe (Spain, Portugal, Italy and Greece) everything goes well in the centre (Germany, the Netherlands, Belgium) it goes badly and in Scandinavia the price level is maintained’;
—
‘Tycsa: the participants also discussed their coordination towards the client Addtek: “Addtek talked to [a competitor] in order to complain about the low prices, since [another competitor] was selling below his prices and said that if it continues with this price policy in the next year, they would not have a single kilo from Group Addtek”’;
—
‘DWK (‘October 2001’): Meeting with other country coordinators with detailed discussions on prices’.
The undertakings represented at that meeting were the permanent members and Austria Draht.
That information comes from a number of sources: Nedri, DWK, Tycsa, Emesa and Arcelor España (for the latter, via the Emesa notes submitted in 2007) (see Annex A.45 to the application, for a minute prepared by Tycsa found during the inspection, administrative file pp. 240 to 242 for the DWK handwritten notes, Annex B.15 to the defence and administrative file, pp. 11660, 28554 and 28555 for a minute prepared by Emesa and the Emesa notes).
In the light of those elements, it is clear that the Club Europe meeting of 27 September 2001 had an anti-competitive content. It thus follows from the minutes of the meeting of 27 September 2001 taken at the material time by the representatives of Emesa and Tycsa that, on that occasion, there was a discussion of the export quotas to be allocated to the Italian producers, sales and also sales to be made in 2002.
It is also clear that, in one of the minutes prepared by Emesa and in the minute prepared by Tycsa, Austria Draht’s presence at that meeting is reported. In that regard, the minute prepared by Tycsa, which was found during the inspection, is significant, since that minute indicates not only the name and duties of Austria Draht’s representative, one of its managers, but also that on that occasion certain individuals introduced their replacements or stated that they were replacing their predecessors. That minute then states that ‘Austria Draht also was there for the first time’ (‘Austria Draht tambien ha estado la primera vez alli’), which further reinforces the unreliability of Nedri’s assertions, referred to in paragraphs 340, 344 and 350 above and reproduced in the contested decision, that that representative of Austria Draht was present at the Club Europe meetings held on 25 September 1997, 14 October 1998 and 9 November 1998.
In the reply to the statement of objections, and again before the Court, the applicants claimed, however, that while they acknowledge that Austria Draht’s representative, Mr Ro., was present at that meeting, account should also be taken of the fact that, when Mr T., the representative of DWK, invited Mr Ro. to participate in anti-competitive agreements, Mr Ro. refused.
It must be stated, however, that that refusal is not apparent from the available evidence, unlike, for example, the refusal that emerges from the minute prepared by Mr P. of Emesa, when Tycsa answered ‘NO!’ to the list of coordinators planned for various countries (Annex B.15 to the defence, p. 257).
Likewise, the applicants claim that Mr Ro. was present at only part of the meeting of 27 September 2001, since he flew from Graz (Austria) to Düsseldorf on the day of the meeting and had to leave at 1.45 p.m. (the return flight left at 2.50 p.m.). The applicants therefore dispute that the matters addressed in Mr Ro.’s presence could have provided him with information about the cartel and the overall arrangement.
It follows from the elements communicated by the applicants, however, that they acknowledge that Mr Ro. could have been present at the venue for the meeting (the Drahthaus, in Düsseldorf), on 27 September 2001, between 9.35 a.m. and 1.45 p.m. That period is sufficient for him to have been able to participate in the meeting, at which his presence is expressly reported in the minute prepared by Tycsa (see Annex 7 to the application, p. 51, and administrative file, pp. 841 to 845).
It should be emphasised, moreover, that what matters here is whether the Commission is entitled to take the view, in the light of the elements in the file, that there is ‘[an indication] that Austria Draht was sporadically involved in anti-competitive discussions at European level and therefore was aware of the pan-European level of the cartel …’.
That is the case as regards the Club Europe meeting of 27 September 2001.
Unlike the Commission, however, the Court does not consider that there is sufficient evidence to establish that Austria Draht participated in Club Europe.
Apart from the abovementioned assertion of Tycsa, one of the permanent members, which gives the impression that that was the first time that a representative of Austria Draht attended a meeting of Club Europe (see paragraph 371 above), it is also apparent from the available evidence that Austria Draht was not envisaged as coordinator for Austria and that, according to the data provided on that point by the applicants, the minimum selling prices to be charged in 2002 in the various countries referred to at the meeting do not correspond to the selling prices charged by Austria Draht in that year, which were much lower.
It is also clear that, as the applicants state, no subsequent Club Europe meeting mentions Austria Draht’s presence. That must be pointed out since, for several of those meetings, the presence of Mr C. of CB is reported, and also that of Mr G., who worked in particular and essentially for CB during the period of the infringement found to have been committed by Austria Draht.
Thus, on 10 or 11 October 2001, in Malpensa (Italy), four of the permanent members of Club Europe (Tréfileurope, Nedri, DWK and Tycsa) held a meeting with members of Club Italia (Redaelli, CB, Itas, ITC, Tréfileurope Italia and SLM), in respect of which the Commission mentions various sources of information, and the object of which was ‘integration with the Italian producers’.
Likewise, on 6 November 2001, in Düsseldorf, the permanent members of Club Europe held a meeting with members of Club Italia (Redaelli, CB, Itas, ITC and Tréfileurope Italia), in respect of which the Commission mentions a number of sources of information, and the object of which was ‘quota negotiations with Italian producers’ and ‘customer allocation’. The coordinator for Austria mentioned at those meetings is the same as the one mentioned at the meeting of 27 September 2001, namely a representative of DWK.
Again, on 5 and 6 June 2002, in Düsseldorf, four of the permanent members of Club Europe (Tréfileurope, Nedri, WDI and Tycsa) held a meeting with members of Club Italia (Redaelli, CB and Tréfileurope Italia), in respect of which the Commission mentions a number of sources of information and the object of which was ‘[q]uota negotiations with Italian producers’. Similar meetings were held on 1 July 2002 in Düsseldorf and on 2 July 2002 in Milan (Italy), in the presence of Mr C. of CB and also Mr G.
No information relied on by the Commission in the columns relating to those meetings in Annex 2 to the contested decision implicates Austria Draht. If Austria Draht had participated in Club Europe as from its participation in the meeting held in Düsseldorf on 27 September 2001, one or another of the six producers that were permanent members of Club Europe and which all cooperated with the Commission during the administrative procedure would certainly have been in a position to demonstrate such participation, which did not happen in the present case.
Furthermore, it cannot be considered that, when Mr G. was present at a meeting of Club Europe alongside Mr C. of CB, to discuss the export quota to be allocated to the main Italian producers in order to reduce the competitive pressure which they were exerting outside Italy, he also formed an economic unit with Austria Draht. Such a question is clearly not within the remit of the representation entrusted by Austria Draht to its agent in Italy, as was confirmed at the hearing in the light of the parties’ answer to the questions put by the Court in that regard.
Nor is there anything in the file to establish that Mr G. sent Austria Draht the slightest information about the content of the discussions in which he participated on behalf of CB (see paragraph 171 et seq. above).
Accordingly, the Commission is wrong to state in recital 653 to the contested decision that ‘Austria Draht … was present through Mr [G.] in at least six Club Europe expansion meetings’, namely the meeting of 27 September 2001, in respect of which Mr G.’s presence is not reported, like that of Mr C. of CB, although the presence of a manager of Austria Draht is reported (see paragraph 370 above), the meetings of 10 and 11 October 2001, 6 November 2001, during which Mr G. was designated as possible national coordinator for Italy, together with Mr A. (Itas) and Mr C. (CB), 5 and 6 June 2002, 1 July 2002 and 2 July 2002 (see paragraph 305 above).
In conclusion, it follows from the foregoing that the Commission can rely on the evidence in its possession as regards (i) the Zurich Club meeting of 9 January 1996 and (ii) the Club Europe meeting of 27 September 2001, not to establish Austria Draht’s participation in Club Europe — which, moreover, it did not find, probably owing to the excessively limited and isolated nature of that evidence — but as ‘indications that Austria Draht was sporadically involved in anti-competitive discussions at pan-European level and was therefore aware of the pan-European level of the cartel …’.
Although those indications may show that Austria Draht was aware of the overall plan, and therefore of the pan-European dimension of the single infringement, they are none the less not as ‘clear’ as the Commission asserted in the contested decision.
c) Elements showing awareness of the cartel through the agent
Last of all, the applicants claim that, if the Court should consider that the conduct of Austria Draht’s agent in Italy may be imputed to them, their awareness of the overall mechanism could not be taken into account in that way in order to establish that Austria Draht participated in a single infringement.
On that point, it should be borne in mind that the Commission was in fact wrong to consider in the contested decision that awareness of the overall plan could be imputed to Austria Draht owing to Mr G.’s presence alongside Mr C. of CB at a number of Club Europe meetings in respect of which Mr G., in the absence of contractual authority to that effect, cannot be considered to have been acting on behalf of Austria Draht (see paragraphs 379 to 386 above).
As regards the Club Italia meetings at which Club Europe was discussed, it should also be observed for, for a large part of those meetings, and in particular those at which Redaelli or Tréfileurope Italy presented the broad outlines of Club Europe to the members of Club Italia (like the meetings of 16 December 1997, 26 and 27 September 2000 or 12 July 2001), Mr G.’s presence is not reported. That may be explained by the fact that Mr G. was perceived rather as a player at commercial level and not at the highest decision-making level.
None the less, as the Commission claims, it is also clear that, on the occasion of several Club Italia meetings where Mr G. was acting as agent in Italy on behalf of Austria Draht, the discussions covered not only the domestic aspects of Club Italia but also its external aspect, which for the main Italian producers was aimed at sharing among themselves a quota of exports to other European countries.
By way of example, it is apparent from the evidence relating to the Club Italia meeting of 19 September 2000, which was examined under the first plea, that, although that meeting concerned customer allocation on the Italian market, which was potentially of interest to Austria Draht, owing to the presence at that meeting of its agent in Italy, there was also a reference to exports and to the fact that SLM remained outside Club Europe (see paragraph 245 above). In that context, the awareness acquired by Austria Draht’s agent in Italy can also be imputed to Austria Draht when it comes to the context of the economic unit which they form together.
In such a situation, the Commission is not required to demonstrate that the principal was aware of the anti-competitive conduct of the agent. In view of the contract, and as in the case of a subsidiary wholly or almost wholly controlled by its parent company or an employee acting on behalf of his employer, the agent is deemed to be acting here on behalf of the principal and forms a single entity with the latter.
In the light of the foregoing, it is necessary to distinguish:
—
on the one hand, the Club Italia meetings attended by Mr G. at which not only domestic aspects of Club Italia, but also pan-European aspects of Club Italia, were discussed, in respect of which Mr G. was acting both as representative of CB and ‘on behalf of’ Austria Draht in Italy;
—
on the other hand, the Club Europe meetings, as such, in respect of which Mr G. was not acting as Austria Draht’s agent in Italy, but necessarily as representative of CB, in which case it cannot be established that there was a single economic entity between Mr G. and Austria Draht.
C –
Conclusion on the second plea
In conclusion, the Commission is entitled to consider that, within the meaning of the case-law referred to in paragraphs 116 to 128 above, and in particular in paragraphs 120 and 124, that Austria Draht participated in the single infringement, for the following reasons:
—
first, Austria Draht ‘participated … in Club Italia … through its sales agent in Italy, … Mr [G.], from 15 April 1997 onwards until 19 September 2002’ (contested decision, recital 769);
—
second, even though Austria Draht is not held liable for direct participation in the Zurich Club or Club Europe, there are certain indications ‘that Austria Draht was sporadically involved in anti-competitive discussions at pan-European level and therefore was aware of the pan-European level of the cartel as of an early stage’.
Austria Draht’s involvement at the pan-European level of the cartel may be inferred as much from the direct participation of one of its representatives in the Zurich Club meeting of 9 January 1996 and the Club Europe meeting of 27 September 2001 as from the awareness acquired by Mr G. on the occasion of Club Italia meetings which covered both the domestic aspects of the Italian market and certain pan-European aspects of the PS sector seen from the viewpoint of the players on that market.
Although all the indicia relied on by the Commission in order to establish awareness of the pan-European dimension of the cartel cannot, taken individually, be considered to be sufficiently probative, those indicia, taken together, none the less suffice to establish that Austria Draht was aware of the pan-European level of the cartel in the sense conferred on that concept by the case-law cited above.
The second plea must therefore be rejected.
IV –
Third plea, relating to the elements to be taken into consideration in the assessment of penalty
In the alternative, voestalpine and Austria Draht claim that, if they can be found to have participated in a single infringement in the sense defined by the Commission, the Commission made serious errors when calculating the fine imposed on them, in particular by not taking the secondary nature of Austria Draht’s participation in the cartel into account.
Under this plea, the applicants put forward three sets of complaints, alleging, first, breach of the principles of proportionality and equal treatment; second, breach of certain provisions of the 2006 Guidelines, namely the erroneous fixing of an additional amount and the failure to take mitigating circumstances associated with negligence or substantially reduced participation in the infringement into account; and, third, breach of the rights of the defence and of the right to a fair trial.
The third set of complaints must be rejected at the outset. In that regard, the applicants claim that, by amending the initial decision on two occasions after the expiry of the period for bringing an action, the Commission breached their rights of defence and their right to a fair trial. In addition, the applicants observe that, in the contested decision, the Commission raised for the first time an objection relating to a meeting held on 30 April 2002, on which the applicants no longer had the opportunity to comment in advance.
However, the position is that, in the proceedings before the Court, the applicants were able to obtain a copy of the amending decisions and also had the opportunity to submit their comments on those decisions, as is apparent from paragraphs 44 to 48 above. The applicants are therefore no longer in a position to claim that there has been a breach of their rights of defence and their right to a fair trial as regards the amendments made to the initial decision by the first amending decision and the second amending decision.
Furthermore, as regards the final reasoning employed by the Commission in the contested decision concerning the content of the meeting of 30 April 2002, it must be held, first of all, that that does not, strictly speaking, constitute a new objection, but a fresh interpretation of a piece of evidence that had already been brought to the applicants’ notice. In addition, the amendment of the analysis applied in that respect by the Commission also follows on from the comments submitted by the applicants on the statement of objections. Furthermore, it should be observed that the applicants were able to submit their comments on that new analysis on the occasion of the present action and that the Court may, if necessary, rule on the probative value to be placed on the evidence relating to that meeting. It is therefore appropriate to refer on that point to paragraphs 264 to 270 above, where the Court rules on the applicants’ arguments relating to the meeting of 30 April 2002.
A –
Breach of the principle of proportionality
The applicants claim that a fine of EUR 22 million is disproportionate to the infringement which they are found to have committed. The fine was imposed on account of the conduct of a non-exclusive agent within Club Italia, of which Austria Draht was wholly unaware, and notwithstanding that Austria Draht is not alleged to have participated in the other anti-competitive arrangements. In addition, that agent, like the other participants in Club Italia, denies that Austria Draht was represented in that club and, in any event, Austria Draht cannot be regarded as an important member of Club Italia. In the light of the situation, the applicants should not be penalised by anything other than a symbolic fine. In the event that a symbolic fine should not be appropriate, the amount of the fine should take into consideration only Austria Draht’s PS sales in Italy and not its PS sales throughout the EEA. In the present case, the proportion of the fine linked with the fact of having been aware of the agreements at European level, in an isolated fashion and without having even approved those agreements, is almost EUR 19 million. On the basis of sales in Italy, and according to the method employed by the Commission, the fine should be only EUR 3.1 million. Nor can the Commission claim that the fine is proportionate by observing (i) that the assessment of gravity relates only to the infringement in itself and (ii) that the applicants’ situation does not constitute a mitigating circumstance within the meaning of the 2006 Guidelines. The Commission should take account of the conduct of each undertaking concerned and on the role played in establishing the concerted practices. If the applicants are found only to have participated in Club Italia, the only relevant market for the purpose of the calculation of the fine would be, at most, Italy (application, paragraphs 219 to 233, and reply, paragraphs 79 to 87, 99 and 100).
In the Commission’s contention, while it is true that the only objection raised against Austria Draht is that it is a ‘member’ of Club Italia and that, accordingly, it participated in the agreements concluded within that club, Austria Draht also attended a series of Club Europe meetings. In view of the geographic extent of the Club Italia agreements and their close relationship with the pan-European agreements, Austria Draht ‘participated’ in the entire cartel. It is therefore not disproportionate to base the determination on the amount of the fine on PS sales achieved at European level, since there was no participation limited to Italy (defence, paragraphs 93 and 98; rejoinder, paragraphs 51 to 54).
In order to examine those arguments, it appears appropriate to recall the principles that apply when the amount of the fine to be imposed to penalise the individual participation of an undertaking in an infringement of competition law is determined.
1. Proportionality of the penalty in the light of all the circumstances
It follows from Article 49 of the Charter of Fundamental Rights that the severity of penalties must not be disproportionate to the offence.
In that regard, Article 101(1) TFEU and Article 53(1) of the EEA Agreement expressly state that agreements and concerted practices which directly or indirectly fix purchase or selling prices or any other trading conditions or limit or control production or markets are incompatible with the internal market. Infringements of that type, in particular where they involve horizontal cartels, are characterised in the case-law as particularly serious since they have a direct impact on the essential parameters of competition on the market in question (judgment of 11 March 1999 in
Thyssen Stahl
v
Commission
, T‑141/94, ECR,
EU:T:1999:48
, paragraph 675).
Under Article 23(2) of Regulation No 1/2003, the Commission may impose fines on undertakings which participate in such an infringement, provided that, for each undertaking participating in the infringement, the fine does not exceed 10% of its total turnover in the preceding business year. Article 23(3) of that regulation also provides that, in fixing the amount of the fine to be imposed, regard is to be had both to the gravity and to the duration of the infringement.
In that regard, it has consistently been held that, in fixing the amount of the fines, regard must be had to all the factors capable of affecting the assessment of the gravity of the abovementioned infringements, such as, in particular, the role played by each of the parties to the infringement and the threat that infringements of that type pose to the objectives of the European Union (see judgment of 15 March 2000 in
Cimenteries CBR and Others
v
Commission
, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, ECR,
EU:T:2000:77
, paragraph 4949 and the case-law cited). Where an infringement has been committed by several undertakings, the relative gravity of the participation of each undertaking must be examined (see judgment of 8 July 1999 in
Hercules Chemicals
v
Commission
, C‑51/92 P, ECR,
EU:C:1999:357
, paragraph 110 and the case-law cited).
Last, the fact that an undertaking has not taken part in all aspects of a cartel or that it played only a minor role in the aspects in which it did participate must be taken into consideration when the gravity of the infringement is assessed and if and when it comes to determining the fine (judgments in
Commission
v
Anic Partecipazioni
, paragraph 119 above,
EU:C:1999:356
, paragraph 90, and
Aalborg Portland and Others
v
Commission
, paragraph 119 above,
EU:C:2004:6
, paragraph 86) (see paragraph 124 above).
Where there has been, in particular, a single infringement, in the sense of a complex infringement, combining a number of agreements and concerted practices on separate markets, where the offending undertakings are not all present or may have only partial knowledge of the overall plan, the penalties must be made to fit the individual conduct and specific characteristics of the undertakings concerned (see, by analogy, judgment of 7 June 2007 in
Britannia Alloys & Chemicals
v
Commission
, C‑76/06 P, ECR,
EU:C:2007:326
, point 44).
In that context, the principle of proportionality requires that the fine must be fixed proportionately to the factors to be taken into account both in assessing the objective gravity of the infringement, as such, and in assessing the relative gravity of the participation in the infringement of the undertaking on which the penalty is to be imposed (see, to that effect, and in consideration of the distinction between the objective gravity of the infringement, within the meaning of points 22 and 23 of the 2006 Guidelines, and the relative gravity of the participation in the infringement of the undertaking on which the penalty is to be imposed, within the meaning of point 27 et seq. of those Guidelines, judgment of 27 September 2006 in
Jungbunzlauer
v
Commission
, T‑43/02, ECR,
EU:T:2006:270
, paragraphs 226 to 228 and the case-law cited).
Thus, as regards a penalty imposed for infringement of competition law applicable to cartels, the Commission must ensure that it fits the penalties to the infringement, taking account of the particular situation of each offender (see, to that effect, judgments of 15 September 2011 in
Lucite International and Lucite International UK
v
Commission
, T‑216/06,
EU:T:2011:475
, paragraphs 87 and 88; of 16 September 2013 in
Hansa Metallwerke and Others
v
Commission
, T‑375/10,
EU:T:2013:475
, paragraph 80; and of 14 May 2014 in
Donau Chemie
v
Commission
, T‑406/09, ECR,
EU:T:2014:254
, paragraph 92). Thus, an offender who is not held liable in respect of certain parts of a single infringement cannot have had a role in the implementation of those parts. Owing to the limited extent of the infringement in which he is found to have been involved, the infringement of competition law is necessarily less serious than that imputed to the offenders who participated in all the parts of the infringement.
In practice, the penalty may be made to fit the particular infringement at various stages of the determination of the amount of the fine, as was done in the contested decision.
First, the Commission may recognise the particularity of an undertaking’s participation in the infringement at the stage of assessing the objective gravity of the single infringement. In the present case, the factors which it took into consideration at that stage were, on the one hand, the material limitation (as in the case of Fundia, which participated only in the coordination concerning Addtek) or geographic limitation (as in the case of Socitrel, Fapricela and Proderac, which participated only in Club España, which affected only Spain and Portugal) of the undertaking’s participation in the single infringement and, on the other, belated awareness of its pan-European dimension (May 2001 for the abovementioned undertakings).
As regards, Austria Draht, it is apparent from recitals 947 to 949 to the contested decision that, when the Commission assessed the geographic scope of the single infringement, it rejected the applicants’ request that the value of sales of PS in Spain and Portugal should not be taken into account, because Austria Draht was not active within Club España, on the ground that those two countries were also part of the geographic scope of Club Italia.
The Commission’s reasoning in that regard, so far as the applicants are concerned, is based, as it confirms in its written pleadings, on the assessment of the gravity of the infringement as such, that is to say, on a number of factors such as the nature of the single infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the overall cartel has been implemented (see point 22 of the 2006 Guidelines) and not on the assessment of the individual participation of a particular undertaking in the infringement.
Second, the Commission may recognise the particularity of an undertaking’s participation in the infringement at the stage of assessing the mitigating circumstances referred to in point 29 of the 2006 Guidelines in the context of an overall assessment of all the relevant circumstances (see point 27 of the 2006 Guidelines). Although no undertaking, including the applicants, was able to adduce the evidence requested by the Commission that the infringement had been committed negligently, the Commission acknowledged that the role of Proderac and Trame (Emme) was significantly more limited than that of the other participants in the cartel and that they should therefore be granted a reduction of the amount of the fine (5%).
Conversely, the Commission considered that the applicants had not provided evidence that Austria Draht’s participation in the infringement was significantly lower than that of the others. The standard of proof required by the Commission in order to satisfy that criterion is especially important, since the undertaking claiming the benefit of a mitigating circumstance must show that, ‘during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market’.
On that point, the Commission considered that the sales figures for 1998-2001 (the ‘quota’ aspect) and for the period 2001-2002 (the ‘price’ aspect) submitted by Austria Draht were not sufficient, because they were certified only by Austria Draht, and that, in any event, occasional cheating regarding fixed prices and/or quotas or customer allocation did not in itself prove that a party had not implemented the cartel arrangements (contested decision, recitals 1016 and 1018).
Third, the Commission may recognise the particularity of an undertaking’s participation in the infringement at a later stage than that of the assessment of the objective gravity of the infringement or the mitigating circumstances put forward by the undertakings concerned. Point 36 of the 2006 Guidelines thus states that the Commission may, in certain cases, impose a symbolic fine and, as indicated in point 37 of those Guidelines, it may also depart from the general methodology laid down for the setting of fines, in the light, inter alia, of the particularities of a given case.
In the present case, the Commission did not agree, either at the initial stage of the assessment of the gravity of the infringement as such, or at the later stage of the discussion of the mitigating circumstances, or at any other stage, to take account of the specific situation alleged by the applicants when it determined the amount of the fine.
Consequence, in the absence of the slightest mitigating circumstance or particular circumstance, the Commission applied to the applicants the same formula as that used in order to penalise the undertakings that participated in all the components of the overall cartel, and not just in some of them. That formula is as follows: 19% of the total PS sales of the undertaking concerned in the EEA (to take account of the gravity of the infringement as such) multiplied by the number of years and months of participation in the infringement (to take account of the period of Austria Draht’s individual participation in the infringement), plus 19% of the value of PS sales of the undertaking concerned in the EEA (by way of additional amount).
In the applicants’ case, as the result of that formula, EUR 22 million, was below 10% of the turnover achieved by the undertaking concerned during the relevant business year preceding the penalty, the Commission imposed that penalty in the contested decision.
2. Consideration of the applicants’ particular situation
In the present case, the Court must examine whether, in imposing on the applicants a fine in the amount of EUR 22 million calculated, in particular, on the basis of all PS sales made in the EEA by Austria Draht, the objective gravity of the infringement as such and the duration of Austria Draht’s participation in Club Italia through Mr G., and without taking any mitigating circumstances into account (see paragraphs 103 to 115 above), the Commission properly assessed the circumstances of the present case and, in doing so, imposed a penalty that was proportionate to the single infringement that Austria Draht was found to have committed.
a) Modes of participation in club Italia
As regards participation in Club Italia, three observations may be made for the purpose of assessing the penalty imposed on Austria Draht in the light of what was indicated in the first plea.
First, as, moreover, the Commission claims, the agreements concluded within Club Italia do have a geographic scope extending beyond Italy. Apart from the Italian aspect of that club, it also enabled a number of undertakings, namely the hard core composed of Redaelli, CB, ITC and Itas (present in Italy) and also Tréfileurope (present in Italy and in the rest of Europe), and also other, smaller Italian undertakings (such as SLM), to coordinate the Italian producers’ export efforts and, symmetrically, to define a common policy in reaction to the attempts by producers in other European countries (such as Tycsa, Nedri and DWK, who were sometimes involved in Club Italia) to limit those efforts by offering the Italian producers an export quota in the rest of Europe.
However, it must be stated that Austria Draht, which was not an Italian producer exporting to the rest of Europe, was not and could not be involved in the activities of the members of Club Italia aimed at coordinating their export efforts. That factor must be taken into consideration when the amount of the fine to be imposed on the applicants is assessed.
Second, it should be pointed out that, in any event, Austria Draht’s representative in Club Italia could not act on behalf of Austria Draht outside the activity entrusted to him, namely ‘exclusive representation for Italy’ for PS. It is also apparent from the file that the nature of the activity entrusted to Mr G. by Austria Draht was fully known to the other participants in Club Italia (such as, for example, Tréfileurope, ITC or CB).
There is nothing to show that Mr G. was perceived as being able to commit Austria Draht outside Italy.
Such a limitation must also be taken into account when assessing the amount of the penalty to be imposed on the applicants, since that element is also capable of restricting the geographic scope of Mr G.’s conduct within Club Italia. It should be observed, moreover, that the Commission is aware of that limit, since it does not impute to Austria Draht, but only to CB, Mr G.’s conduct within Club Europe. Thus, in the part devoted to ‘Pan-European arrangement: Club Europe (1997-2002)’ of Annex 1.1 to the contested decision, the ‘Names of employees [involved]’ in that arrangement are those of Mr Ra. and Mr Ro. for Austria Draht and, by reference, that of Mr G., among others, for CB. The same applies in Annex 1.2 to the contested decision, concerning Club Europe. On the other hand, Mr G.’s name is mentioned in the part relating to ‘Club Italia’ in Annex 1.2 to the contested decision both for Austria Draht (where he is referred to as its ‘[s]ales agent … for Italy’) and for SB (through Studio Crema).
Third, it is also important to note that, whatever Mr G. may have done within Club Italia (whether on behalf of Austria Draht or not), the Commission has not established that Austria Draht was aware of it. There is nothing in the file, and in particular, as the Commission acknowledges, in any of the documents exchanged between Mr G. and Austria Draht that were produced in reply to a request for information from the Commission, to establish such awareness.
While it is possible to impute directly to Austria Draht Mr G.’s conduct within Club Italia, since Club Italia comes within the framework of the activities carried out on behalf of Austria Draht by the agent, whether or not Austria Draht was aware of it, that agent can be considered only to be acting as an auxiliary organ of CB when he does not intervene on behalf of Austria Draht.
In that context, it must be considered that, as regards the facts, and for the needs of determining the amount of the penalty, the geographic scope of Mr G.’s conduct within Club Italia cannot extend beyond Italy, in view, first, of the limitation of his agency agreement and, second, of the absence of any proof that, when Mr G. was not acting on behalf of Austria Draht for the purpose of marketing its products in Italy, he none the less communicated to Austria Draht the information which he was able to obtain within Club Italia concerning the extra-Italian aspects of that club. If that had been the case, quod non, Austria Draht would then have been in a position to adapt its conduct on the markets on which it was present elsewhere (for example, the Austrian market or the Belgian and Netherlands markets).
b) Non-participation in Club Europe and in the other arrangements
As regards the conclusions to be drawn from Austria Draht’s sporadic involvement in Club Europe, it is apparent on examining the second plea that the mere fact that Austria Draht may have been aware of the pan-European dimension of the cartel cannot suffice to establish that the value of sales on those markets, in respect of which it is not established that Austria Draht engaged in anti-competitive conduct, can be taken into consideration.
In fact, it is clear from the contested decision that the Commission did not consider that Austria Draht had participated in Club Europe, just as it did not consider that Austria Draht had participated in the other aspects of the overall cartel (see paragraphs 460 to 462 below). ‘[S]poradic involvement’, resulting from ‘indications’, which, moreover, are less numerous than the Commission considers, and leading to the conclusion that Austria Draht ‘therefore was aware of the pan-European level of the cartel as of an early stage’ cannot be deemed to be equivalent to actual and continuous participation in Club Europe. In the present case, it is not possible to go beyond the assertion made in the decision, that Austria Draht did not participate in Club Europe, still less in the Zurich Club, Club España and the Southern Agreement.
That assertion also finds support in a number of elements in the file which describe Austria Draht’s intention, on the markets other than Italy, where it does not employ Mr G.’s services, to remain apart from any coordination of conduct relating to prices, quantities or customers.
In that regard, reference may be made to, among other factors, the commercial data supplied by the applicants in their reply to the statement of objections in order to establish their competitive conduct. In this case, those data were rejected outright by the Commission in the contested decision on the ground that they were certified only by Austria Draht (contested decision, recital 1018). However, it would have been a simple easy matter for the Commission, if it doubted the veracity of the information presented by the accused to defend itself against the objections raised against it by an administrative authority, to check the information submitted with the various parties concerned by sending them a request for information. Generally, the Commission also observed that ‘occasional cheating regarding fixed prices and/or quotas or clients allocation does not in itself prove that a party has not implemented the cartel agreements’ (contested decision, recitals 1016 and 1018). Such a ground does not suffice, however, to deny all relevance to precise and detailed data relating to significant periods. Such data are relevant as evidence to be taken into account for the purpose of establishing the non-collusive nature of the conduct exposed.
The Commission’s finding that the applicants did not participate in the overall cartel as regards not only, and expressly, Club Europe but also, implicitly and necessarily, the other elements going to make up that cartel (the Zurich Club, Club España, the Southern Agreement …) constitutes a factor that ought to have been taken into consideration by the Commission when it assessed the penalty to be imposed on the applicants.
B –
Conclusion on the breach of the principle of proportionality
In consequence, it follows from the foregoing that the penalty imposed on the applicants is disproportionate, as the Commission failed to take the particularity of Austria Draht’s situation into account when it imposed a fine of EUR 22 million on the applicants, calculated in particular on the basis of all PS sales in the EEA by Austria Draht, the objective gravity of the infringement as such and the duration of Austria Draht’s participation in Club Italia through Mr G., without recognising any mitigating circumstances whatsoever.
In particular, the penalty imposed on the applicants by the Commission takes no account of the fact that Austria Draht participated in only one aspect of the single infringement, (Club Italia, through Mr G.) and that, for that aspect, in the absence of evidence in that regard, it cannot be considered that both the object and the effects of that participation may have extended beyond the Italian territory.
As the applicants expressly state, the fact, recognised in the contested decision, that Austria Draht did not participate in all the agreements penalised by the Commission is not represented by a lower fine. On the contrary, while acknowledging that Austria Draht did not participate in the cartel at European level, and in the absence of any evidence indicating anti-competitive conduct on the part of Austria Draht outside Italian territory, the Commission imposed on them a fine calculated on the basis of their sales at European level, with the result that the applicants received a fine identical to that which they would have had to pay if Austria Draht’s participation in all the aspects of the single infringement had been imputed to them.
In the present case, in accordance with the principle of proportionality, the Commission, when calculating the amount of the fine imposed on the applicants, was required to take into consideration certain particularities specific to Austria Draht’s situation, such as, first, the territorial limitation of Mr G.’s agency agreement, under which he was authorised to act on behalf of the applicants only in respect of sales in Italy, and, second, the absence of any evidence showing that, although Mr G. many have been aware of factors other than those relating to sales in Italy, he disclosed them to Austria Draht, which could then have adapted its conduct accordingly on PS markets other than the Italian market.
In fact, an undertaking which is shown to have participated in the single infringement in respect of several components of that cartel makes a greater contribution to its effectiveness and its gravity than an offender which has participated in only one of its components. Accordingly, the former undertaking commits a more serious infringement than that committed by the latter, which must be taken into account in the determination of the penalty.
Article 2(5) of the contested decision is annulled in that it imposes a disproportionate penalty on voestalpine and voestalpine Wire Rod Austria.
The conclusions to be drawn from the foregoing will be examined below in the context of the unlimited jurisdiction conferred on the Court, which it has been asked to exercise in the present case.
In those circumstances, there is no longer any need to examine the parties’ complaints alleging breach of the principle of equal treatment or the complaints alleging breach of certain provisions of the 2006 Guidelines, which in the present case are not such as to call into question the outcome of the foregoing assessment.
V –
The Court’s exercise of its unlimited jurisdiction and the determination of the amount of the fine
The unlimited jurisdiction conferred, in application of Article 229 EC, on the Court by Article 31 of Regulation No 1/2003 authorises it, in addition to undertaking a simple review of legality, which merely permits dismissal of the action for annulment or annulment of the contested measure, to substitute its own assessment for that of the Commission and, consequently, to vary the contested measure, even without annulling it, taking account of all the factual circumstances, by amending, in particular, the fine imposed where the question of the amount of the fine is raised before it (see, to that effect, judgments of 8 February 2007 in
Groupe Danone
v
Commission
, C‑3/06 P, ECR,
EU:C:2007:88
, paragraphs 61 and 62, and of 3 September 2009 in
Prym and Prym Consumer
v
Commission
, C‑534/07 P, ECR,
EU:C:2009:505
, paragraph 86 and the case-law cited).
In that regard, it should be observed that, by its nature, the fixing of a fine by the Court is not an arithmetically precise exercise. Furthermore, the Court is not bound by the Commission’s calculations or by its Guidelines when it adjudicates in the exercise of its unlimited jurisdiction, but must make its own appraisal, taking account of all the circumstances of the case (see judgment of 5 October 2011 in
Romana Tabacchi
v
Commission
, T‑11/06, ECR,
EU:T:2011:560
paragraph 266 and the case-law cited).
In this instance, in order to determine the amount of the fine designed to penalise Austria Draht’s participation in the single infringement, the Court should take the following circumstances into account.
In the first place, it is apparent to the sufficient evidential standard from the file that, through Mr G., its agent in Italy, Austria Draht participated in several Club Italia meetings, which concerned quota allocation and price fixing on the Italian market. Such arrangements are by their very nature among the most serious restrictions of competition. That participation began on 15 April 1997 and continued, without significant interruption, until the day on which the Commission carried out inspections at the premises of CB, the other undertaking on whose behalf Mr G. worked.
Austria Draht’s participation in Club Italia, through Mr G., on whom Austria Draht had conferred the power to negotiate the sale of its PS in Italy, is an essential element in the assessment of the penalty.
In the second place, it is correct that Austria Draht should be considered to have been ‘sporadically involved’ in anti-competitive discussions at pan-European level. That is apparent both from the direct participation of a representative of Austria Draht in the Zurich Club meeting of 9 January 1996 and in the Club Europe meeting of 27 September 2001 and from the fact that, owing to the presence of Mr G. at certain Club Italia meetings where he acted by virtue of the duties entrusted to him by Austria Draht, Austria Draht was able to be aware of information relating not only to the domestic aspects of the Italian market but also to the markets to which the producers situated in Italy exported, in particular the German, Spanish and French markets.
When assessing the penalty, it is therefore also necessary to take into account, as an ancillary matter, the direct and indirect sporadic involvement of representatives of Austria Draht in anti-competitive discussions at pan-European level.
In the third place, however, it is also necessary to take into account the fact that Austria Draht’s participation in the single infringement has a number of particularities.
First, it should be observed at the outset that the Commission has not established that Austria Draht had participated in the Zurich Club, Club Europe or Club España, which constitute essential aspects of the single infringement. That particularity is all the more significant because, at the commercial level, Austria Draht, unlike Mr G., had no real interest in being associated with Club Italia. Supposing that Austria Draht had participates in the single infringement characterised by the Commission through its own devices, and not through Mr G., its commercial interests would have been better serviced if it had worked within Club Europe, which brought together producers not making the essential part of their sales in Italy, in order to combat, in particular, exports to the territory of Club Europe by producers essentially present in Italy.
However, there is no evidence to show that the discussions which a representative of Austria Draht may have attended in 1996 and 2001 were followed by other meetings capable of showing no longer ‘sporadic involvement’ but actual participation by Austria Draht in Club Europe. In particular, and by way of example, it must be pointed out that the various pieces of evidence relied on before the Court do not establish that Austria Draht engaged in any unlawful conduct in Austria. Quite to the contrary, the applicants claim, without being convincingly called into question by the Commission, that the members of the cartel perceived Austria Draht as a threat and a constraint on their conduct in that Member State, and also elsewhere in the EEA.
On that point, in fact, as the Commission acknowledged at the hearing, on the basis of the file, which is characterised, in particular, for Club Europe by the cooperation of the six producers (see paragraph 69 above), one or other of those six producers would necessarily have mentioned Austria Draht’s participation in Club Europe had that been the case.
The conclusion that Austria Draht and, consequently, voestalpine did not participate in Club Europe also applies both in the hypothesis of Austria Draht’s direct participation in Club Europe through one of its employees and in the hypothesis of its participation in that component of the single infringement through Mr G.
Apart from the fact that there is no conclusive evidence of such participation during the period of the single infringement which Austria Draht was found to have committed, and from the benefit of the principle of the presumption of innocence on which the parties can rely, it should also be observed that the Commission expressly stated, in recital 652 to the contested decision, that it did not hold Austria Draht liable for direct participation in the Club Europe or in the Zurich Club that preceded it. It should further be observed that the Commission itself considered in Annexes 1 and 2 to the contested decision, relating to Club Europe, that the unlawful conduct in which Mr G. could be found to have engaged in connection with that club was imputable to CB and not to Austria Draht, which is to be explained by the territorial limitation of the activities entrusted to Mr G. by Austria Draht.
Second, it is apparent, in any event, that throughout the entire infringement period Mr G. carried out transactions on behalf of Austria Draht only in respect of the Italian market. That feature of Austria Draht’s participation in the single infringement, which is apparent from the agreement with Mr G., was, in addition, confirmed by the applicants in answer to the questions put by the Court on that point, without that having been convincingly contradicted by the Commission in its observations in that regard.
Third, it must be observed that there is no evidence to show that Austria Draht was aware of Mr G.’s unlawful conduct, which applies in respect of both the Italian market, on which Mr G. was authorised to act, and the other markets, on which he never carried out any transactions on behalf of Austria Draht.
Austria Draht’s participation in the single infringement is therefore primarily the act of an intermediary, Mr G., its agent in Italy, whom Austria Draht had entrusted with its commercial activities in that country, and of whom there is no evidence that he communicated to Austria Draht the slightest element relating to the knowledge acquired through his anti-competitive conduct. Such a situation is significant when it comes to assessing the penalty.
Consequently, it is essentially the anti-competitive conduct of Mr G., which must be considered to have been carried on behalf of Austria Draht, that must be taken into consideration when determining the amount of the fine to be imposed on Austria Draht. Like the Commission, the Court also considers it appropriate to take Austria Draht’s sporadic involvement in the anti-competitive discussions at pan-European level into account, although that cannot support the idea that it might be correct to determine the amount of the fine on the basis of all PS sales made by Austria Draht within the EEA.
In the light of those circumstances, the Court considers that a fine of EUR 7.5 million allows Austria Draht’s unlawful conduct to be penalised effectively in a manner that is not insignificant and remains sufficiently deterrent. Any fine above that amount would be disproportionate to the infringement which the applicants were found to have committed when assessed in the light of all the circumstances that characterise Austria Draht’s participation in the single infringement.
For the reasons stated in the contested decision, which, moreover, are not disputed by the applicants, voestalpine must be held to be jointly and severally liable for payment of that fine.
In the light of all of the foregoing, it is appropriate, first, to annul Article 2(5) of the contested decision, in that it imposes a disproportionate fine on the applicants to penalise Austria Draht’s participation in the single infringement from 15 April 1997 until 19 September 2002; second, to reduce the amount of the fine imposed jointly and severally on the applicants from EUR 22 million to EUR 7.5 million; and, third, to dismiss the action as to the remainder.
Costs
Under Article 134(3) of the Rules of Procedure, where the parties succeed on some and fail on other heads, they are to be ordered to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.
In the circumstances of the present case, in light of the significant reduction of the fine imposed on the applicants by the Commission, the Commission must be ordered to bear its own costs and to pay two thirds of the costs incurred by the applicants, which must thus bear one third of their own costs.

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

1.
Annuls Article 2(5) of Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/38344 — Prestressing Steel), as amended by Commission Decision C(2010) 6676 final of 30 September 2010 and Commission Decision C(2011) 2269 final of 4 April 2011;

2.
Reduces the amount of the fine imposed jointly and severally on voestalpine AG and voestalpine Wire Rod Austria GmbH from EUR 22 million to EUR 7.5 million;

3.
Dismisses the action as to the remainder;

4.
Orders the European Commission to bear its own costs and to pay two thirds of the costs incurred by voestalpine and voestalpine Wire Rod Austria;

5.
Orders voestalpine and voestalpine Wire Rod Austria to bear one third of their own costs.

Frimodt Nielsen
Dehousse
Collins
Delivered in open court in Luxembourg on 15 July 2015.
[Signatures]
Table of contents

Subject-matter of the dispute

Background to the dispute

I - The sector to which the proceedings relate

A — Product

B — The supply structure

C — The demand structure

D — Trade within the European Union and the EEA

II - Voestalpine and Austria Draht

III - Administrative procedure

A — First leniency application and immunity granted to DWK

B — Inspections and requests for information

C — Other leniency applications and the Commission’s replies

D — Initiation of the procedure and statement of objections

E — Access to the file, hearing and ability to pay

F — Requests for further information

IV — Contested decision

Procedure and forms of order sought

Law

A — Preliminary observations

1. Content of the contested decision

a) Components of the cartel and characterisation of the single infringement

b) Evidence taken into consideration in respect of Austria Draht and voestalpine

Contract with Mr G.

Club Italia (from 15 April 1997 to 19 September 2002)

Club Europe and pan-European system

c) Addressees of the contested decision and individual duration of liability

Situation concerning Austria Draht

Situation concerning voestalpine

d) Calculation of the amount of the fine imposed on voestalpine and Austria Draht

2. Outline of the principles

a) Proof of the existence and duration of the infringement

b) Concept of a single infringement, in the sense of a complex infringement

c) Concept of distancing in the event of participation in a meeting

B — First plea, alleging that the Commission was wrong to consider that the applicants participated in a component of the single infringement through their agent in Italy

1. Imputation of the agent’s conduct to the principal

a) Conditions of the imputability of the agent’s conduct to the principal

b) Agency agreement and assumption of the economic risk

c) Impact of the fact that the agent represents two undertakings

d) Lack of awareness, control and approval

2. Evidence of the agent’s unlawful conduct

a) The meeting of 15 April 1997

b) The meeting of 24 June 1997

c) The meeting of 11 March 1998

d) The meeting of 30 March 1998

e) The meeting of 18 May 1998

f) The meeting of 19 October 1998

g) The meeting of 18 January 1999

h) The meeting of 14 December 1999

i) The meeting of 12 January 2000

j) The meeting of 19 September 2000

k) The meeting of 10 June 2001

l) The meeting of 23 October 2001

m) The meeting of 11 January 2002

n) The meeting of 30 April 2002

o) The other meetings and documents referred to in the contested decision

3. The various statements relied on by the parties

4. Duration of the infringement in which Austria Draht was found to have participated

5. Conclusion on the first plea

C — Second plea, alleging that the Commission erred in considering that the applicants participated in a single infringement combining, in particular, Club Italia and Club Europe

1. Participation in a component of the single infringement

2. Awareness of the pan-European level of the cartel

a) Evidence relied on in the contested decision

b) Analysis of the evidence relied on in the contested decision

Evidence relating to the Zurich Club

– The meeting of 28 May 1995

– The meeting of 9 January 1996

Evidence relating to Club Europe

– The meeting of 14 October 1998

– The meeting of 9 November 1998

– The meeting of 28 February 2000

– The meeting of 27 September 2001

Elements showing awareness of the cartel through the agent

3. Conclusion on the second plea

D — Third plea, relating to the elements to be taken into consideration in the assessment of penalty

1. Breach of the principle of proportionality

a) Proportionality of the penalty in the light of all the circumstances

b) Consideration of the applicants’ particular situation

Modes of participation in club Italia

Non-participation in Club Europe and in the other arrangements

2. Conclusion on the breach of the principle of proportionality

E — The Court’s exercise of its unlimited jurisdiction and the determination of the amount of the fine

Costs
(
)	Language of the case: German.