CELEX: 62007TJ0113
Competition
Agreements, decisions and concerted practices
Market in gas insulated switchgear projects
Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement
Market-sharing
Rights of the defence
Proof of the infringement
Single and continuous infringement
Fines
Gravity and duration of the infringement
Statement of reasons
Starting amount
Reference year

Background to the dispute
1.
Applicant
The applicant, Toshiba Corp., is a Japanese company active in various sectors, in particular the sector for gas-insulated
switchgear (‘GIS’). Between October 2002 and April 2005, its GIS business was carried on within a joint venture, TM T & D Corp.,
jointly owned in equal shares with Mitsubishi Electric Corp. (‘Melco’) and dissolved in 2005.
2.
Goods
GIS is used to control energy flow in electricity grids. It is heavy electrical equipment, used as a major component for power
sub-stations. GIS is sold across the world either as part of turnkey power substations or as separate equipment which has
to be integrated into a turnkey power substation.
3.
Administrative procedure
On 3 March 2004, ABB Ltd informed the Commission of the European Communities (now ‘the European Commission’) of anti‑competitive
practices in the GIS sector in connection with an oral application for immunity from fines pursuant to 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’).
ABB’s request for immunity was supplemented by oral observations and documentary evidence. It gave rise, on 24 April 2004,
to a Commission decision granting conditional immunity to ABB.
On the basis of ABB’s statements, the Commission initiated an investigation and, on 11 and 12 May 2004, it carried out inspections
at the premises of various companies active in the GIS sector.
On 20 April 2006, the Commission adopted a statement of objections which was notified to 20 companies including the applicant.
The Commission held hearings on 18 and 19 July 2006 for the companies to which the statement of objections had been sent.
4.
Contested decision
On 24 January 2007, the Commission adopted Decision C(2006) 6762 final relating to a proceeding under Article 81 [EC] and
Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas-insulated switchgear) (‘the contested decision’).
In recitals 113 to 123 of the contested decision, the Commission stated that the various undertakings which participated in
the cartel had coordinated the allocation of GIS projects worldwide – except for specific markets – according to agreed rules
in order to maintain quotas largely reflecting estimated historic market shares. It pointed out that the allocation of GIS
projects had been carried out on the basis of a joint ‘Japanese’ quota and a joint ‘European’ quota, which the Japanese and
European producers then had to distribute among themselves. An agreement signed in Vienna on 15 April 1988 (‘the GQ Agreement’)
established rules allowing the allocation of GIS projects to either Japanese producers or to European producers and to set
their value against the corresponding quota. In addition, in recitals 124 to 132 of the contested decision, the Commission
stated that the various undertakings which participated in the cartel had entered into an unwritten agreement (‘common understanding’),
under which GIS projects in Japan, on the one hand, and in the countries of European members of the cartel, on the other –
together described as the ‘home countries’ for GIS projects – were reserved to Japanese members and European members of the
cartel respectively. GIS projects located in the ‘home countries’ were not the subject of information exchanges between the
two groups and were not charged to their respective quotas.
The GQ Agreement also contained rules relating to the exchange of information necessary for operation of the cartel between
the two groups of producers, carried out in particular by their respective secretaries, and to the manipulation of the bidding
procedures concerned and the fixing of prices for GIS projects which could not be allocated. Under the terms of Annex 2 to
the GQ Agreement, the agreement applied worldwide, except in the United States, Canada, Japan and 17 Western European countries.
Furthermore, under the common understanding, GIS projects in European countries, other than the ‘home countries’, were also
reserved for the European group, as the Japanese producers had undertaken not to submit bids for GIS projects in Europe.
According to the Commission, the sharing of GIS projects between the European producers was governed by an agreement also
signed in Vienna on 15 April 1988, entitled ‘E-Group Operation Agreement for GQ Agreement’) (‘the EQ Agreement’). It indicated
that the distribution of GIS projects in Europe followed the same rules and procedures as those governing the distribution
of GIS projects in other countries. In particular, GIS projects in Europe also had to be notified, recorded, allocated, arranged
or have received a minimum price.
On the basis of the findings of fact and legal assessments made in the contested decision, the Commission found that the undertakings
implicated had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (‘EEA Agreement’) and
imposed on them fines calculated in accordance with the methods set out in the Guidelines on the method of setting fines imposed
pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3) (‘the guidelines’),
and in the Leniency Notice.
In Article 1 of the contested decision, the Commission found that the applicant had participated in the infringement from
15 April 1988 to 11 May 2004.
For the infringement found in Article 1 of the contested decision, the applicant was fined, in Article 2 of the contested
decision, EUR 90 900 000, of which EUR 4 650 000, corresponding to the infringement committed by TM T & D, to be paid jointly
and severally with Melco.

Procedure and forms of order sought by the parties
By application lodged at the Court Registry on 18 April 2007, the applicant brought the present action. The defence and reply
were lodged on 27 August and 22 October 2007.
By document lodged at the Court Registry on 29 November 2007, the applicant requested that judgment by default be delivered
in its favour, pursuant to Article 122 of the Rules of Procedure of the General Court. That application was rejected by decision
of the Second Chamber of the Court of 11 December 2007.
The written procedure closed with the lodging of the rejoinder on 17 December 2007.
Upon hearing the report of the Judge-Rapporteur, the Court (Second Chamber) decided, on 22 September 2009, to open the oral
procedure. By way of measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, it invited
the Commission to submit certain documents and requested the parties to express their views on the relevance of those documents
in relation to the plea alleging infringement of the right of access to the file. The Court also put a question to the Commission
in writing, inviting it to give its reply at the hearing.
In response to the Court’s request, the Commission forwarded the documents concerned on 26 October 2009. The applicant submitted
its observations on those documents on 19 November 2009. The Commission replied to the applicant’s observations on 2 December
2009.
The parties presented oral argument and submitted their replies to the Court’s written and oral questions at the hearing on
11 December 2009.
By order of 11 June 2010, the Court decided to reopen the oral procedure, ordered the Commission to produce certain documents
by way of a measure of inquiry pursuant to Article 65 of the Rules of Procedure and determined the arrangements by which the
applicant could consult them.
The Commission complied with those measures of organisation within the deadline set.
The oral procedure was closed on 28 July 2010.
In its application, the applicant claims that the Court should:
–        annul the contested decision;
–        in the alternative, annul the contested decision in so far as it relates to the applicant;
–        in the further alternative, amend Articles 1 and 2 of the contested decision so as to annul or substantially reduce the fine
imposed on the applicant;
–        order the Commission to pay the costs, including the costs incurred in connection with the bank guarantee.
At the hearing, the applicant withdrew its first head of claim, seeking annulment of the contested decision in its entirety.
The Commission contends that the Court should:
–        dismiss the action as unfounded;
–        order the applicant to pay the costs.

Law
In support of its action, the applicant puts forward four pleas in law. The first plea alleges that, in the contested decision,
the Commission did not establish to the requisite standard the existence of a common understanding. The second plea alleges
that the Commission did not establish a single and continuous infringement. The third plea alleges that its rights of defence
were infringed. The fourth plea alleges that the Commission wrongly imposed a fine on it.
The Commission considers the applicant’s pleas to be unfounded.
It should be noted, at the outset, that the applicant has not specified which of its pleas support the various claims which
it has made. In that regard, it should be considered, first of all, that the first, second and third pleas have been raised
by the applicant in support of its claim seeking annulment of the contested decision in so far as it concerns it. If one of
those pleas is upheld, it will be necessary, in principle, to annul the contested decision in its entirety in so far as it
concerns the applicant. Secondly, the fourth plea concerns the calculation of the fine imposed on the applicant and is, consequently,
raised by the applicant in support of its application for the annulment or a substantial reduction of the fine imposed on
it.
1.
The application seeking annulment of Articles 1 and 2 of the contested decision in so far as they concern the applicant
In so far as the annulment of the contested decision for infringement of the applicant’s rights of defence would render the
examination of the substance of that decision devoid of purpose, it is appropriate to analyse the third plea first of all.
The first and second pleas will then be examined.

The third plea, alleging that the Commission infringed the applicant’s rights of defence
The applicant considers that its rights of defence were infringed. In the context of the first part of the third plea, it
claims that there was a fundamental procedural error in relation to the identification of the infringement in the operative
part of the contested decision. In the context of the second part of the third plea, it alleges an infringement of the right
of access to the file. In the context of the third part of the third plea, it submits that the Commission distorted evidence
in the file.
The Commission considers the applicant’s arguments to be unfounded.
The first part of the third plea, alleging that the infringement was insufficiently identified in the operative part of the
contested decision
–       Arguments of the parties
According to the applicant, in Article 1 of the operative part of the contested decision, the Commission merely referred to
the applicant’s participation in a complex of agreements and concerted practices, without identifying the infringement of
Article 81 EC and Article 53 of the EEA Agreement, which constitutes a fundamental procedural error.
The Commission considers the applicant’s arguments to be unfounded.
–       Findings of the Court
It is apparent from Article 1 of the contested decision that the Commission found that the companies concerned had participated
in a complex of agreements and concerted practices in the GIS sector contrary to Article 81 EC and Article 53 of the EEA Agreement
and stated the periods concerned. Thus, the operative part of the contested decision does not specify the nature of the alleged
agreements and practices.
However, it must be remembered that the operative part of a decision is to be understood in the light of the grounds supporting
it (Joined Cases T‑305/94, T‑306/94, T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94
Limburgse Vinyl Maatschappij and Others
v
Commission (‘PVC II’)
[1999] ECR II‑931, paragraph 761). In the present case, a summary of the elements of the infringement is provided, in particular,
in recital 2 of the contested decision and those elements are detailed in other recitals of the contested decision. Accordingly,
it must be found that, in the light of the grounds supporting it, the Commission identified, in the operative part of the
contested decision, the infringement concerned in a sufficiently precise manner. Consequently, this part of the plea must
be rejected.
The second part of the third plea, alleging an infringement of the right of access to the file
–       Arguments of the parties
The applicant considers that the Commission did not grant it access to all the incriminating and exculpatory evidence.
As regards the incriminating evidence, the applicant submits that it had only partial access to Hitachi’s reply to the statement
of objections and did not have access to Fuji’s statements allegedly corroborating ABB’s statements, referred to in recital
125 of the contested decision. Consequently, it considers that it was not able to express its view and be heard in relation
to that evidence, which, in its view, could thus not be relied on in the contested decision.
In respect of the exculpatory evidence, the applicant states that, in so far as it was not granted access to the complete
file, it was not in a position to determine whether further relevant evidence had been produced by other parties. It considers,
in any event, that it should have gained access to the supplementary reply of Hitachi Ltd to the statement of objections,
which contradicts the conclusions drawn in the contested decision from Hitachi’s statements concerning project loading. It
also refers to the statements of employees of Melco and Hitachi which deny the existence of a common understanding. Finally,
it refers to the statements of Mr S, submitted by Areva, which apparently contradict the theory concerning the duration of
the GQ agreement.
The Commission considers the applicant’s arguments to be unfounded.
–       Findings of the Court
Respect for the rights of the defence requires that the person concerned must have been afforded the opportunity, during the
administrative procedure, to make known his views on the truth and relevance of the facts and circumstances alleged and on
the documents used by the Commission to support its claim that there has been an infringement of the Treaty (Joined Cases
C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P
Aalborg Portland and Others
v
Commission
[2004] ECR I‑123, paragraph 66).
A corollary of the principle of respect for the rights of the defence, the right of access to the file means that the Commission
must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant
for its defence. Those documents include both incriminating and exculpatory evidence, save where the business secrets of other
undertakings, the internal documents of the Commission or other confidential information are involved (
Aalborg Portland and Others
v
Commission
, paragraph 40 above, paragraph 68).
In this respect, it should be recalled that it is not until the beginning of the
inter partes
administrative stage that the undertaking concerned is informed, by means of the notification of the statement of objections,
of all the essential evidence on which the Commission relies at that stage of the procedure and that that undertaking has
a right of access to the file in order to ensure that its rights of defence are effectively exercised. Consequently, the replies
of the other undertakings which participated in the cartel to the statement of objections are not, in principle, included
in the documents of the investigation file that the parties may consult (Case T‑161/05
Hoechst
v
Commission
[2009] ECR II‑3555, paragraph 163).
However, if the Commission wishes to rely on a passage in a reply to a statement of objections or on a document annexed to
such a reply in order to prove the existence of an infringement in a proceeding under Article 81(1) EC, the other undertakings
involved in that proceeding must be placed in a position in which they can express their views on such evidence. In such circumstances
the passage in question from a reply to the statement of objections or the document annexed thereto constitutes incriminating
evidence against the various undertakings alleged to have participated in the infringement (see
Hoechst
v
Commission
, paragraph 42 above, paragraph 164, and the case‑law cited). That case‑law is applicable, by analogy, to Article 53(1) of
the EEA Agreement.
By analogy, if a passage in a reply to a statement of objections or in a document annexed to such a reply may be relevant
for the defence of an undertaking in that it enables that company to invoke evidence which is not consistent with the inferences
made at that stage by the Commission, it constitutes exculpatory evidence. In that case, the undertaking concerned must be
authorised to examine the passage or the document concerned and to give its view thereon.
However, the mere fact that other undertakings put forward the same arguments as the undertaking concerned and that they may
have used more resources for their defence is not sufficient for those arguments to be regarded as exculpatory evidence (see,
to that effect, Case T‑43/02
Jungbunzlauer
v
Commission
[2006] ECR II‑3435, paragraphs 353 and 355).
As regards the consequences of granting access to the file contrary to those rules, the failure to communicate a document
on which the Commission based its decision to inculpate an undertaking constitutes a breach of the rights of the defence only
if the undertaking concerned shows that the result at which the Commission arrived in its decision would have been different
if the document which was not communicated had to be disallowed as incriminating evidence (
Aalborg Portland and Others
v
Commission
, paragraph 40 above, paragraphs 71 and 73).
Where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure
was able to influence, to its disadvantage, the course of the proceedings and the content of the decision of the Commission.
It is sufficient for the undertaking to show that it would have been able to use the exculpatory document for its defence,
in the sense that, had it been able to rely on it during the administrative procedure, it would have been able to invoke evidence
which was not consistent with the inferences made at that stage by the Commission and therefore could have had an influence,
in any way at all, on the assessments made by the Commission in the decision, at least as regards the gravity and duration
of the conduct in which the undertaking was found to have engaged and, accordingly, the level of the fine (
Aalborg Portland and Others
v
Commission
, paragraph 40 above, paragraphs 74 and 75).
The possibility that a document which was not disclosed might have influenced the course of the proceedings and the content
of the Commission’s decision can be established only if a provisional examination of certain evidence shows that the documents
not disclosed might – in the light of that evidence – have had a significance which ought not to have been disregarded (
Aalborg Portland and Others
v
Commission
, paragraph 40 above, paragraph 76).
In the present case, it is necessary to dismiss from the outset the applicant’s arguments relating to its lack of full access
to the Commission’s file. It is apparent from the case‑law cited in paragraph 41 above that the protection of the rights of
defence of persons involved in an administrative procedure does not imply that full access to the file must be granted.
As regards the incriminating evidence, it must be noted that the applicant does not state which evidence held against it in
the contested decision was contained in the part of Hitachi’s reply to the statement of objections to which it did not have
access. The applicant also does not state the reasons why the fact of having only partial access to that document did not
enable it to give its view on Hitachi’s statements relating to project loading, which constitute the main item of incriminating
evidence. Accordingly, the applicant’s argument relating to its partial access to Hitachi’s reply to the statement of objections
must be rejected.
Moreover, the Commission admits that it was not able to rely on Fuji’s observations, which were not communicated to the applicant,
in support of the grounds of complaint raised against the applicant in the contested decision, but disputes actually having
used them as incriminating evidence.
It must be noted, none the less, that, in recitals 125 and 255 of the contested decision, the Commission referred to Fuji’s
supplementary observations, in particular those of 21 November 2006, to corroborate the existence of a common understanding.
Accordingly, the outcome of the applicant’s argument depends on the result of the examination of the first plea, relating
to the proof of the existence of a common understanding. If it is found that the existence of such an understanding has been
established to the requisite legal standard even after disallowing Fuji’s observations as incriminating evidence, it will
be necessary to reject the applicant’s claims. By contrast, if it is found that those observations constitute necessary evidence
in support of the findings made in the contested decision in relation to the existence of a common understanding, it will
be necessary to uphold the applicant’s argument and, consequently, to annul the contested decision in so far as it concerns
it.
In so far as concerns the exculpatory evidence, the Court requested the Commission to produce all the documents which the
applicant identified with a modicum of precision. Since the request made to the Commission was based on indications provided
by the applicant itself, its request set out in its observations of 19 November 2009 to the effect that the Commission provide
it with all the documents produced in response to the similar requests made by the Court in Case T‑112/07
Hitachi and Others
v
Commission
and Case T‑133/07
Mitsubishi Electric
v
Commission
, cannot be upheld.
As regards the various documents produced by the Commission in the present case, it should be noted, first, that, contrary
to the applicant’s claim, Hitachi’s supplementary reply to the statement of objections does not call into question the factual
content of the latter’s statements concerning the notification and project loading mechanism. In that supplementary reply,
Hitachi merely disputed the Commission’s interpretation of those statements, in particular in relation to their relevance
as evidence of the common understanding and of the existence of a single infringement involving both the common understanding
and the GQ Agreement. Hitachi had already raised those same arguments in the extract from its first reply to the statement
of objections, which the Commission sent to the applicant. Consequently, Hitachi’s supplementary reply to the statement of
objections cannot be regarded as exculpatory evidence whose communication could have influenced the course of the proceedings
and the content of the contested decision.
It should also be pointed out that, in its observations of 19 November 2009, the applicant wrongly complains that, following
the invitation which the Court made to the Commission, it had only partial access to Hitachi’s supplementary reply to the
statement of objections. The partial nature of the access to that document results from the fact that, in its pleadings, the
applicant identified it as constituting potential exculpatory evidence only in so far as it concerns the notification and
project loading mechanism.
Second, it should be noted that, in their written statements of November 2006, Melco’s and Hitachi’s employees dispute the
existence of a common understanding and of discussions relating thereto and refer to the existence of ‘high’ barriers to entry
on the European market. In addition, one of Melco’s witnesses notes that Fuji did not participate in the negotiations prior
to the signing of the GQ Agreement, whereas the other notes that, in his view, the exclusion of certain European countries
from the scope of the GQ Agreement was due to the risk of application of competition law. Hitachi’s witnesses give details
of a proposal made by Alstom in July 2002 relating to an understanding between European and Japanese producers and of Hitachi’s
rejection of that proposal.
In that regard, it should be noted that the written witness statements of the employees of a company, drawn up under the supervision
of that company and submitted by it in its defence in the administrative procedure carried out by the Commission, cannot,
in principle, be classed as evidence which is different from, and independent of, the statements made by that same company.
Generally speaking, the position of a company as to the truth of the facts set out against it by the Commission is based,
primarily, on the knowledge and opinions of its employees and management.
In addition, during the administrative procedure, the applicant itself disputed the existence of a common understanding and
of discussions relating thereto and referred to the existence of ‘high’ barriers to entry on the European market. Consequently,
the fact that other undertakings raised those arguments cannot be regarded as exculpatory evidence.
Similarly, the details of Alstom’s proposal of July 2002 were disclosed in the statement of objections, whereas Fuji’s absence
from the negotiations related to the GQ Agreement was referred to in Mr M’s witness statement, to which the applicant does
not dispute having had access. Consequently, that evidence does not constitute exculpatory evidence.
By contrast, it does not appear that the argument relating to the reason why certain European countries were excluded from
the scope of the GQ Agreement was raised by the applicant, nor that the applicant had access to a document reproducing it.
Thus, the passage concerned of the witness statement of one of Melco’s employees could be regarded as exculpatory evidence.
However, it is a statement made by an employee of one of the undertakings involved, in which that employee merely disputes
the existence of unlawful conduct and which is not substantiated. Accordingly, the communication of that evidence cannot be
regarded as capable of influencing the course of the proceedings and the content of the contested decision.
Third, it should be noted that the applicant itself admits, in its observations of 19 November 2009, that Mr S’s statements,
submitted by Areva, confirm its own arguments in relation to the alleged suspension of the implementation of the GQ Agreement
between 1999 and 2002. Also, contrary to what the applicant maintains, the claim that it was necessary to approach TM T &
D in 2002 with a view to resuming cartel activity was set out in Areva’s explanatory note concerning the operation of the
cartel, to which the applicant had access.
The only potential item of exculpatory evidence contained in Mr S’s statements is the claim that the GQ Agreement could not
work without a major producer such as Siemens. However, that claim, made by an employee of an undertaking which is accused
of having participated in an infringement, is not substantiated and is contradicted by both the statements of the other undertakings
involved and the documentary evidence gathered by the Commission and set out in recitals 191 to 198 of the contested decision.
Consequently, the communication of that evidence was not capable of influencing the course of the proceedings and the content
of the contested decision.
In the light of all of the foregoing, the applicant’s arguments relating to access to the exculpatory evidence must be rejected.
However, as is apparent from paragraph 53 above, the outcome of this part of the third plea depends on the result of the examination
of the arguments raised by the applicant in the context of its first plea.
The third part of the third plea, alleging a distortion of the evidence in the file
–       Arguments of the parties
The applicant maintains that the Commission distorted the evidence in the file, thereby infringing both its rights of defence
and the obligation to deal with the file fairly and accurately.
In the applicant’s view, first, contrary to what is stated in recital 255 of the contested decision, the undertaking belonging
to the group including VA TECH Transmission & Distribution GmbH & Co. KEG (‘VA TECH’) did not remain silent as to the existence
of a common understanding, but disputed it explicitly at the hearing.
Second, the applicant denies that, at the hearing, it was not able to answer the questions concerning the projects loaded
in the quota provided for by the GQ Agreement and ABB’s list of projects allegedly notified. It states, referring to an extract
of the transcription of the hearing, that its reply was that it was not aware of the project loading.
Third, the applicant claims that, in the contested decision, the Commission wrongly stated that it had confirmed that the
GQ Agreement had continued after 24 April 1999, although it had always maintained that the worldwide cartel had ceased after
Siemens and Hitachi discontinued their participation.
Fourth, contrary to the Commission’s assertion in recital 306 of the contested decision, the applicant claims it did not corroborate
Hitachi’s statements concerning the existence of notification and denied both notification and project loading.
Fifth, the applicant maintains that, in so far as it had no access to the statements of the other parties on which the Commission
based its findings, it cannot rule out the possibility that their content was also distorted in the contested decision, which
is very probable in view of the complaints set out above.
The Commission considers the applicant’s arguments to be unfounded.
–       Findings of the Court
The Court notes, first, that the principle of respect for the rights of the defence, as set out in paragraph 40 above, can
be infringed as a result of a distortion of the facts only if it affected the interested party’s ability to understand the
extent of the complaints held against it by the Commission or to assess the evidence relied on in support of those complaints.
In the present case, the applicant does not state the extent to which the alleged distortions of the facts committed by the
Commission made its defence more difficult.
Consequently, the complaint alleging an infringement of the principle of the respect for the rights of the defence must be
rejected.
Second, the duty to deal with the file fairly and diligently, which falls under the principle of good administration, is infringed
each time a fact is distorted. However, such an infringement permits a finding that the contested decision was unlawful only
in so far as the Commission would not have been able to arrive at the same conclusions if it had correctly interpreted the
facts at issue.
Accordingly, the interpretation of the various facts which were allegedly distorted and the consequences of any possible distortions
will be examined in the context of the applicant’s pleas calling those facts into question.
In the light of all the above, the third part of the third plea must be rejected.

The first plea, alleging that the Commission did not establish the existence of the common understanding to the requisite
legal standard
According to the case‑law, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating
to the requisite legal standard the existence of the facts constituting an infringement (see Joined Cases T‑44/02 OP, T‑54/02 OP,
T‑56/02 OP, T‑60/02 OP and T‑61/02 OP
Dresdner Bank and Others
v
Commission
[2006] ECR II‑3567, paragraph 59, and the case‑law cited).
In that regard, any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision
finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement
at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for
annulment of a decision imposing a fine (
Dresdner Bank and Others
v
Commission
, paragraph 78 above, paragraph 60).
In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular
from Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on
4 November 1950, which is one of the fundamental rights which are general principles of Community law. Given the nature of
the infringements in question and the nature and degree of gravity of the ensuing penalties, the principle of the presumption
of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings
that may result in the imposition of fines or periodic penalty payments (see, to that effect,
Dresdner Bank and Others
v
Commission
, paragraph 78 above, paragraph 61, and the case-law cited).
Thus, the Commission must show precise and consistent evidence in order to establish the existence of the infringement. However,
it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those
criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution,
viewed as a whole, meets that requirement (see
Dresdner Bank and Others
v
Commission
, paragraph 78 above, paragraphs 62 and 63, and the case‑law cited).
In addition, as anti-competitive agreements are known to be prohibited, the Commission cannot be required to produce documents
expressly attesting to contacts between the traders concerned. The fragmentary and sporadic items of evidence which may be
available to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant
circumstances to be reconstituted. The existence of an anti-competitive practice or agreement may therefore be inferred from
a number of coincidences and indicia which, taken together, can, in the absence of another plausible explanation, constitute
evidence of an infringement of the competition rules (see
Dresdner Bank and Others
v
Commission
, paragraph 78 above, paragraphs 64 and 65, and the case‑law cited).
The applicant submits, in that regard, that there is no longer any justification for applying a more lenient evidential standard
because of the difficulties faced by the Commission when trying to prove an infringement. In its view, first, Council Regulation
(EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 [EC]
(OJ 2003 L 1, p. 1) has strengthened the Commission’s powers in this area. Second, in the present case the Commission received
a large number of evidential submissions as a result of its leniency programme. Third, because of the use of modern technology,
documents incriminating members of a cartel exist in multiple copies, created on various computers. In the applicant’s view,
the relevant documents can thus be searched for more easily and identified and they can even be reconstituted after being
deleted.
However, those arguments of the applicant cannot be upheld. First, although, according to recital 25 in the preamble to Regulation
No 1/2003, the strengthening of the Commission’s powers aims to enable it to detect, in particular, infringements of Article
81 EC, that strengthening does not guarantee in itself that probative evidence will actually be able to be gathered more easily
by the Commission in a given case. The same finding is applicable, second, to the leniency programme. In order for the Commission
to be able to validly rely on it as evidence of an infringement, the evidence received from interested undertakings must,
in any event, satisfy the applicable criteria in the case‑law. Thus, the existence of leniency applications per se does not
simplify the Commission’s role. Third, the impact of the proliferation of forms of modern technology is counterbalanced by
the technical measures adopted in that regard by the members of the cartel. In the present case, it is apparent from recitals
173 to 175 of the contested decision that the parties encrypted the relevant documents by means of a computer programme and
that anonymous mailboxes were used for all communications related to the unlawful conduct. It has not been established that
the applicant systematically refused to adhere to those measures, since the evidence in the file does not show that there
was long-term opposition. Moreover, it is apparent from that same evidence that, when the applicant did not encrypt its messages
and use anonymous mailboxes, communication with it took place by telephone or by fax, and not by email or another digital
medium.
Moreover, where the Commission bases its decision solely on the conduct of the undertakings at issue on the market to conclude
that there was an infringement, it is sufficient for those undertakings to prove the existence of circumstances which cast
the facts established by the Commission in a different light and thus allow another plausible explanation of those facts to
be substituted for the one adopted by the Commission in concluding that the Community competition rules had been infringed
(see, to that effect, Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00
JFE Engineering and Others
v
Commission
[2004] ECR II‑2501, paragraph 186, and the case‑law cited).
As the applicant submits, that rule also applies where the evidence which the Commission relies on is insufficient. In that
case, the evidence does not enable the existence of the infringement to be established unequivocally and without the need
for interpretation (see, to that effect, the judgment of 12 September 2007 in Case T‑36/05
Coats Holdings and Coats
v
Commission
, not published in the ECR, paragraph 74).
By contrast, contrary to what the applicant claims, that rule does not apply to all cases in which the infringement is established
by deduction from other facts, by indirect or non‑documentary evidence. As regards the evidence which may be relied on to
establish an infringement of Article 81 EC, the prevailing principle of Community law is the unfettered evaluation of evidence
(Case T‑50/00
Dalmine
v
Commission
[2004] ECR II‑2395, paragraph 72). That case-law is applicable, by analogy, to Article 53 of the EEA Agreement.
Consequently, even if the circumstances referred to by the applicant, supposing that they were proven, may be relevant in
the global assessment of the set of indicia relied on by the Commission, they do not, in themselves, enable the undertaking
concerned to call the Commission’s claims into question by submitting an alternative explanation of the facts.
In addition, no provision or any general principle of Community law prohibits the Commission from relying, as against an undertaking,
on statements made by other undertakings accused of having participated in the cartel. If that were not the case, the burden
of proving conduct contrary to Article 81 EC, which is borne by the Commission, would be unsustainable and incompatible with
the task of supervising the proper application of those provisions (
JFE Engineering and Others
v
Commission
, paragraph 85 above, paragraph 192). That case-law is applicable, by analogy, to Article 53 of the EEA Agreement.
However, a statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by
several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed
by the latter unless it is supported by other evidence, though the degree of corroboration required may be less in view of
the reliability of the statements at issue (
JFE Engineering and Others
v
Commission
, paragraph 85 above, paragraphs 219 and 220).
As regards the probative value of the various items of evidence, the sole criterion relevant in evaluating the evidence adduced
is its reliability (
Dalmine
v
Commission
, paragraph 87 above, paragraph 72).
According to the general rules regarding evidence, the reliability and, thus, the probative value of a document depends on
its origin, the circumstances in which it was drawn up, the person to whom it is addressed and its content (Joined Cases T‑25/95,
T‑26/95, T‑30/95, T‑31/95, T‑32/95, T‑34/95, T‑35/95, T‑36/95, T‑37/95, T‑38/95, T‑39/95, T‑42/95, T‑43/95, T‑44/95, T‑45/95,
T‑46/95, T‑48/95, T‑50/95, T‑51/95, T‑52/95, T‑53/95, T‑54/95, T‑55/95, T‑56/95, T‑57/95, T‑58/95, T‑59/95, T‑60/95, T‑61/95,
T‑62/95, T‑63/95, T‑64/95, T‑65/95, T‑68/95, T‑69/95, T‑70/95, T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95
Cimenteries CBR and Others
v
Commission
[2000] ECR II‑491, paragraphs 1053 and 1838).
As regards statements, particularly high probative value may be attached to those which, first, are reliable, second, are
made on behalf of an undertaking, third, are made by a person under a professional obligation to act in the interests of that
undertaking, fourth, go against the interests of the person making the statement, fifth, are made by a direct witness of the
circumstances to which they relate and, sixth, were provided in writing deliberately and after mature reflection (see, to
that effect,
JFE Engineering and Others
v
Commission
, paragraph 85 above, paragraphs 205 to 210).
In addition, even if some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is
generally called for, considering the possibility, referred to by the applicant, that those participants might tend to play
down the importance of their contribution to the infringement and maximise that of the others, the fact remains that seeking
to benefit from the application of the Leniency Notice in order to obtain immunity from, or a reduction of, the fine does
not necessarily create an incentive to submit distorted evidence in relation to the participation of the other members of
the cartel. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of the
cooperation of the person seeking to benefit from the Leniency Notice, and thereby jeopardise its chances of benefiting fully
under it (see, to that effect, Case T‑120/04
Peróxidos Orgánicos
v
Commission
[2006] ECR II‑4441, paragraph 70).
It must also be noted, in that regard, that the potential consequences of the submission of distorted evidence are even more
serious since, as is apparent from paragraph 90 above, a statement of an undertaking that is disputed must be corroborated
by other evidence. That being so, the likelihood of the Commission and the other undertakings involved of detecting the inaccurate
nature of those statements is increased.
As regards the application of those rules to the present case, it should be noted, at the outset, that, according to the findings
made in the contested decision, the common understanding was an unwritten understanding which encompassed, first, the commitment
of the Japanese undertakings not to enter the market for GIS projects in the European Economic Area (EEA), second, the commitment
of the European undertakings not to enter the Japanese market for GIS projects and, third, the commitment of the European
undertakings to notify the Japanese undertakings of the GIS projects in the European countries other than the ‘home countries’
and to load those projects in the joint ‘European’ quota laid down in the GQ Agreement. According to the Commission, the purpose
of the notification and project loading mechanism was to offer compensation to the Japanese undertakings, viewed by the European
undertakings as potential competitors on the EEA market.
Among the various components of the common understanding listed in paragraph 96 above, it is the alleged commitment of the
Japanese undertakings not to enter the EEA market which constitutes the basis of the Commission’s complaint against the applicant.
Consequently, it is the existence of that commitment which needs to be established to the requisite legal standard. However,
the other components of the common understanding, if proven, may also serve as indirect evidence from which the existence
of the corresponding commitment on the part of the Japanese undertakings may be inferred.
The applicant disputes the existence of a common understanding and its participation therein. It criticises the probative
value of the various items of evidence relied on by the Commission in the contested decision and refers to other evidence
which, in its view, suggests that there was no common understanding. Consequently, the applicant considers that the Commission
was required to accept the alternative explanation for the absence of Japanese producers on the GIS market in the EEA, related
to the existence of legal, technical and commercial barriers to entry on that market. Accordingly, in the applicant’s view,
in adopting the contested decision the Commission reversed the burden of proof, infringed the principle of the presumption
of innocence and went beyond the limits of its powers.
The Commission submits that the existence of a common understanding, and in particular the commitment of the Japanese undertakings
not to enter the EEA market, is established to the requisite legal standard by a body of evidence comprising documentary evidence,
statements from undertakings, witness statements and evidence relating to the actual operation of the cartel.
It is therefore necessary to assess the reliability and the content of the various items of evidence concerned in order to
assess whether, taken as a whole, the evidence relied on by the Commission establishes a firm conviction that a common understanding
existed which is not able to be called into question by the evidence adduced by the applicant.
The applicant’s complaints alleging an infringement of the principle of the presumption of innocence and that the Commission
went beyond its powers are based on the premiss that the Commission did not prove that a common understanding existed and
that the applicant participated therein. Consequently, if the applicant’s arguments relating to the evidence of the existence
of the infringement and of the applicant’s participation therein must be rejected, that necessarily implies that the complaints
alleging an infringement of the principle of the presumption of innocence and that the Commission went beyond its powers will
also have to be rejected. By contrast, if it is concluded that the applicant’s participation in the alleged infringement has
not been shown in the contested decision, that finding would justify, in itself, the annulment of that decision in so far
as it concerns the applicant.
The evidence furnished by ABB
–       Arguments of the parties
The applicant disputes that the various items of evidence furnished by ABB prove the existence of a common understanding.
The applicant submits, at the outset, that in general the evidence furnished by ABB is of weak probative value since ABB benefited
from conditional immunity. In its view, ABB’s statements were no longer self-incriminating. On the other hand, ABB could have
been pressurised to answer the Commission’s questions in a manner that confirmed the existence of the cartel, given that it
still ran the risk of losing its immunity if it did not show itself to be sufficiently cooperative. Consequently, it is appropriate
to adopt a critical approach to evidence from ABB.
In addition, the applicant questions the probative value of each of the individual items of evidence furnished by ABB. First,
the applicant maintains that ABB’s statement of 11 March 2004, confirming the existence of the common understanding is ambiguous,
since ABB also admitted that no explicit agreement existed and that the common understanding was based on the factual background,
that is to say on the fact that the Japanese undertakings were accepted by European customers only to a limited extent and
that they faced certain technical and legal difficulties if they wished to enter the European market. Similarly, according
to ABB, the Japanese producers participated in the cartel only to the extent to which it related to territories outside the
EEA.
Second, the applicant raises questions about the witness statement provided by Mr M, a former ABB employee, at the interview
of 23 September 2005. It submits, in that regard, that ABB’s willingness to support the Commission’s theory manifested itself
by the efforts of its external counsel to guide Mr M’s statements to show that the Japanese producers’ entry into the European
market could become profitable after some time.
The applicant adds that Mr M was no longer an ABB employee at the time of the interview, which means that he was not under
an obligation to act in the company’s interests. Similarly, the fact that Mr M revised his statements illustrates the pressure
brought to bear on him, rather than his wish to provide accurate information.
The applicant also submits that Mr M’s statements as to the existence of the common understanding are hearsay evidence carrying
little conviction. In its view, Mr M stated that he was not present when the common understanding was entered into and that
the understanding was not referred to at the meetings in which he took part. Therefore, those statements were based on Mr M’s
personal view as to the existence of a cartel. The applicant observes in that connection that, even supposing the common understanding
existed, it might be expected, given its alleged importance, that contemporaneous evidence of the alleged events would be
produced by the undertakings which made leniency applications.
As regards the content of Mr M’s statements, the applicant submits that, although Mr M stated that the conclusion of an agreement
covering foreign markets presupposed the existence of an agreement covering the home countries of the various participants,
he also stated that, whilst it might have been possible for Japanese producers to enter the European market, such an endeavour
would nevertheless not have been profitable. Subsequently, on 4 October 2005, ABB’s external counsel made a new statement
purporting to clarify Mr M’s earlier statements and formally recording the existence of the common understanding. According
to the applicant, those two elements are contradictory and cannot therefore be relied on.
Third, the applicant maintains that the statements of Mr W and Mr P, ABB employees, are vague unsubstantiated speculation
based on personal opinions. Thus, when Mr W was asked about the reasons why Japanese producers were not allowed to take part
in European GIS tenders, he did not refer to the common understanding. In earlier statements, he explained, on the other hand,
that the existence of ‘high’ barriers made entry on to the European market difficult.
The Commission considers the applicant’s arguments to be unfounded.
–       Findings of the Court
First of all, it is apparent from paragraphs 94 and 95 above that it is not necessary to treat evidence automatically with
caution when provided by an undertaking which has sought to benefit from immunity from fines. As regards the particular case
of witness statements, it is indeed possible that the employees of such an undertaking, who are required to act in the interests
of the undertaking, have a common desire to submit as much incriminating evidence as possible since their cooperation in the
procedure may also have a positive impact on their future career. However, if that is the case, the employees at issue will
also be aware of the possible negative consequences of submitting inaccurate evidence, which are more sensitive given the
requirement for corroboration.
As regards Mr M, the applicant rightly points out that a former employee is no longer required, in principle, to act in the
interests of his former employer when it comes to voluntary cooperation in administrative proceedings. However, that also
implies that, in principle, he has no interest in providing inaccurate evidence in that respect. It should be noted, in that
regard, that when he submitted his witness statement Mr M was already retired. Accordingly, it is not apparent that a failure
on his part to cooperate in the administrative procedure would have had unfavourable consequences for him.
In addition, it cannot be considered that the evidence furnished by ABB was not capable of damaging ABB. In so far as that
evidence was furnished before the statement of objections was sent, neither ABB, nor its employees nor its former employee
could be certain of the extent and exact content of the objections which were going to be raised against ABB.
As regards the various items of evidence furnished by the applicant, first, in its observations of 11 March 2004, namely before
being granted conditional immunity, ABB explicitly referred to the existence of a common understanding, pursuant to which
the Japanese companies would not bid for European projects and the European companies would not bid for Japanese projects.
It is true that ABB stated that the common understanding was based on the fact that Japanese producers were not well accepted
by European customers and had to face certain obstacles on the European market. However, it is absolutely clear from its observations
of 11 March 2004 that, in its view, the Japanese undertakings involved not only noted the existence of those obstacles, but
made a commitment to their European partners not to enter the EEA market. Thus, the barriers to entry on that market constitute
a factor which led to the conclusion of that understanding. It should be pointed out, in addition, that such a finding is
not paradoxical since it is natural for a producer, when markets are being divided such as in the way alleged by the Commission
in the present case, to leave to its competitors the markets in which its own position is weak.
In addition, it is true that ABB stated that no explicit agreement with Japanese producers existed in relation to the manipulation
of tenders, price fixing and the distribution of EEA projects. However, read in its context, that statement refers to the
distribution of national markets between European producers or the distribution of GIS projects in the EEA. It thus does not
contradict the existence of the general commitment of the Japanese undertakings not to enter the EEA market, to which ABB
made explicit reference. Furthermore, ABB’s statements are not incoherent. In so far as, in ABB’s view, the Japanese undertakings
committed not to enter the EEA market, it would not have been necessary for them to conclude detailed agreements with the
European producers in relation to the distribution of GIS projects on that same market.
In the light of all the above, it must be concluded that ABB’s statements of 11 March 2004 are not ambiguous and that they
constitute indicia of the existence of the common understanding.
Second, it is true that ABB’s outside counsel intervened at a particular moment during Mr M’s interview in order to suggest
to him that it could be beneficial for the Japanese producers to enter the European market, of which Mr M did not appear to
be convinced. Consequently, it should be held that Mr M expressed doubts as to the commercial interest of such a step and
account needs to be taken of that fact when assessing the content of his witness statement. However, the applicant does not
explain how the intervention of ABB’s outside counsel affects the reliability of Mr M’s witness statement in other respects.
In addition, the applicant rightly submits that Mr M’s witness statement does not appear to result from studied reflection
and that it was also not revised after reflection and additional verifications. The witness statement was made orally and
there are no indications that written questions were put beforehand to Mr M by the Commission nor that the statements relating
to the common understanding and the barriers to entry on the EEA market were subsequently verified and revised by Mr M.
None the less, the applicant does not submit any evidence indicating that any revision of Mr M’s statements might be motivated
by any form of pressure exerted on him.
The applicant’s claim that Mr M’s witness statement is merely hearsay evidence must be rejected. Mr M was one of ABB’s representatives
in the cartel between 1988 and 2002, that is during almost its entire duration, at which time ABB itself was one of the main
operators. Mr M was thus a direct and privileged witness of the facts which he disclosed.
In that regard, it must be conceded that, in his witness statement, Mr M confirmed that he was not present when the common
understanding was concluded. Similarly, when asked whether the issue of the common understanding had been raised at meetings
which he had attended, Mr M responded that it was not necessary to refer to it since the common understanding went without
saying. However, this does not call into question the probative value of Mr M’s witness statement. First, a witness is perfectly
able to furnish evidence of a long-standing phenomenon even if he was not present at its inception. Second, although Mr M
stated that the issue of the common understanding had not been referred to explicitly at the meetings which he had attended,
it is apparent from his witness statement that, in his view, this was so because the content of the common understanding was
understood, accepted and implemented by the participants to the cartel without the need for an explicit discussion.
In that regard, it should be noted that the commitment of a group of producers not to enter a market reserved to the other
group, such as the commitment alleged by the Commission against the Japanese producers, is based on a simple concept which
may be implemented easily. Also, its implementation does not require, in principle, interaction between the undertakings concerned.
Consequently, such a commitment is perfectly capable of existing as an unwritten understanding, which also reduces the likelihood
of its discovery. In that regard, the Commission stated in recitals 170 to 176 of the contested decision that, in the present
case, the participants to the cartel put a series of organisational and technical precautions in place to prevent its discovery.
As regards the content of his witness statement, Mr M stated that an understanding relating to the mutual protection of domestic
markets, predating the GQ Agreement, existed between the Japanese and European producers, that that understanding was a prerequisite
for the conclusion of agreements relating to other regions and that compliance with its rules implied that the Japanese producers
were not to enter the domestic market of the European producers, even though they would have been able to do so at a technical
level. Mr M also explained, in that context, the notification and project loading mechanism and the fact that the GIS projects
in the home countries were not discussed between the two groups of producers and were not charged to the quotas set under
the GQ Agreement.
As noted in paragraph 118 above, Mr M was not convinced of the commercial interest for the Japanese undertakings in entering
the European GIS market. None the less, the position of Mr M, which was shared by Mr P, does not affect the fact that, according
to both ABB’s four witnesses and ABB itself, the Japanese undertakings were committed to not entering the EEA market even
though they were capable of doing so at a technical level.
It should also be noted in that regard that the possible lack of commercial interest for the Japanese producers in entering
the EEA market at a given point in time does not render the existence of an understanding, such as the common understanding,
devoid of purpose. Such an understanding may serve, first of all, to eliminate the residual risk of a future entry on to the
markets concerned in the event that competition changes and thereby to ensure long-term security for the two groups of producers
by stabilising their respective privileged positions. Second, such an understanding may form the basis of mutual trust between
the two groups. According to the statements made by Mr M, such confidence was necessary to be able to implement the cartel
worldwide.
In the light of all the above, it must be concluded that Mr M’s witness statement constitutes evidence of the existence of
the common understanding.
Third, contrary to what the applicant claims, Mr Wi stated that the absence of the Japanese undertakings on the European market
was the result of a system in place to protect the Japanese and European markets, motivated by the fact that neither of the
two groups of producers wanted the other group to enter its domestic market. Similarly, Mr P referred spontaneously to a common
understanding with the Japanese undertakings pursuant to which the latter undertook not to participate in the European market
and the European undertakings undertook not to participate in the Japanese market. Thus, Mr Wi’s and Mr P’s witness statements
cannot be regarded as unsubstantiated speculation; on the contrary, they constitute evidence confirming the existence of the
common understanding.
The same finding also applies to the last witness statement submitted at ABB’s initiative and given by Mr V.-A. When asked
about the existence of a common understanding between European and Japanese producers, Mr V.-A referred to an understanding
between Japanese and European producers pursuant to which the European undertakings agreed not to ‘attack’ the Japanese undertakings
on the Japanese market and vice versa. Moreover, Mr V.-A stated that he had participated in a discussion between the European
undertakings and the representative of a Japanese undertaking specifically regarding compliance with that understanding which
was brought about by attempts on the part of the Japanese undertakings to enter the European market.
It must be concluded that the statements and witness statements produced by ABB are capable of proving the common understanding
since they refer to its existence, describe the essential content of the understanding and provide information as to its duration
and those involved.
Similarly, the evidence furnished by ABB is coherent in relation to the existence and fundamental content of the common understanding.
Although a difference exists so far as concerns the commercial interest of the Japanese undertakings in entering the European
market, that is irrelevant in this case in the light of the statements concerning the existence of a common understanding,
as stated in paragraph 125 above.
In addition, ABB’s statements were provided on behalf of an undertaking and it is apparent from their content that they are
founded on internal research and on discussions with ABB’s employees. Consequently, a certain degree of probative value must
be attributed to them.
The statements made by the four witnesses concerned are credible since they were made by direct witnesses of the events to
which they refer and it is not apparent from the circumstances of the case that those witnesses were encouraged to make inaccurate
statements. Thus, they must be regarded as being of high probative value.
However, in accordance with the case‑law set out in paragraph 90 above, the content of the statements and witness statements
provided by ABB must, in any event, be corroborated by further evidence.
The corroboration of ABB’s evidence
–       Arguments of the parties
The applicant maintains that, in the contested decision, the Commission does not sufficiently corroborate the evidence furnished
by ABB and, in particular, does not refer to any evidence which is contemporaneous with the material events.
First, Fuji’s claim that it was aware of the common understanding, made in its response to the statement of objections, is
not supported or explained and thus reflects only Fuji’s unilateral view. In addition, that view does not specify whether
Fuji alone was a party to the alleged understanding, whether it was an understanding of European producers or indeed whether
the Japanese producers were also involved. Furthermore, in its leniency application of 11 July 2006, Fuji did not mention
the existence of the common understanding. That understanding was also not mentioned in the five witness statements of Fuji’s
employees submitted by that undertaking.
In the applicant’s view, the subsequent statements by Fuji allegedly confirming the existence of the common understanding,
and in particular its statement of 21 November 2006, were not communicated to it and can thus not be taken into account.
In addition, the low probative value of the information provided by Fuji is confirmed by the fact that the latter was granted
no leniency by the Commission in exchange for its disclosure.
Second, as regards the finding that Alstom and Areva did not contest the existence of the common understanding and that VA
TECH did not deny it openly, the applicant submits that equating silence to acceptance constitutes a clear infringement of
the right against self-incrimination and of fundamental evidential principles. In addition, from a practical point of view,
the existence of the common understanding was, to a large extent, irrelevant to the European producers and their silence was
to be expected. From a procedural point of view, the applicant observes that, since it had no access to the documents concerned,
it was unable to verify the Commission’s allegation. Furthermore, the applicant considers that VA TECH in fact contested the
existence of the common understanding.
Third, the applicant submits that its mere participation in the meetings with European producers in the context of the GQ
Agreement is irrelevant in so far as concerns the existence of the common understanding.
The Commission considers the applicant’s arguments to be unfounded.
–       Findings of the Court
As regards, first, the evidence furnished by Fuji, it is apparent from paragraphs 51 to 53 above that the observations which
were not communicated to the applicant, and in particular Fuji’s observations of 21 November 2006, cannot be relied on as
incriminating evidence. Consequently, those observations cannot corroborate the content of the evidence furnished by ABB.
By contrast, in its reply to the statement of objections, the relevant passage of which was communicated to the applicant,
Fuji stated that it was aware of the common understanding, pursuant to which the Japanese producers would not attempt to enter
the European market, while stating that the main reason for Fuji’s absence from the EEA market was that it was not a credible
significant GIS supplier in Europe.
It must be admitted that that statement is relatively vague since Fuji merely refers to the commitment of the Japanese producers
not to enter the European market. However, in doing so, Fuji corroborated the key element resulting from the evidence submitted
by ABB and imputed to the Japanese producers by the Commission. Thus, that statement is not irrelevant in this case. That
is even more so since the limited extent of Fuji’s knowledge can be explained by its secondary role within the cartel and,
in particular, by the fact that, as is apparent from recital 150 of the contested decision, Fuji was the only Japanese undertaking
which was not a member of the committee of the group of Japanese producers responsible, in particular, for the coordination
of the two groups of producers within the context of the GQ Agreement.
In so far as concerns Fuji’s employees, the Court points out that those employees did not dispute that the common understanding
existed, but simply remained silent in that regard. Thus, the content of the statements of Fuji’s employees does not call
into question the probative value of Fuji’s statement in its reply to the statement of objections.
In so far as concerns the content of the application for leniency, it is apparent from point 21 of the Leniency Notice that,
for the Commission to be able to reduce a fine, the evidence concerned must be of significant probative value with respect
to the evidence already in the Commission’s possession. Consequently, in a leniency application made after the reply to the
statement of objections has been sent, it is legitimate for the undertaking wishing to obtain a reduction of its fine to focus
on the evidence which, in its view, has thus far not been established to the requisite legal standard, in order to add significant
value to it. This can explain why the undertaking concerned may choose to omit the evidence which it regards as established
beyond doubt by the evidence previously submitted.
Similarly, in the light of the wording of point 21 of the Leniency Notice, it cannot be ruled out that the submission of evidence
of a certain probative value, but which contains facts established by other evidence, will not result in any reduction.
Second, it is apparent from the extract of the transcription of VA TECH’s hearing that the latter explicitly contested the
existence of the common understanding at that hearing. Consequently, the Commission’s claim that that is not the case is unfounded.
In so far as concerns Alstom’s and Areva’s allegedly neutral position, the Commission submits that it did not rely on that
factor in concluding that the common understanding existed, but merely noted it. Although that interpretation is confirmed
by the wording of recital 125 of the contested decision, in which no corroborative value is accorded to the position of Alstom,
Areva and VA TECH, unlike Fuji’s statements confirming the existence of the common understanding, it is called into question
in recital 255 of that decision, in which the Commission refers to the implicit acknowledgement of the existence of the common
understanding by certain European producers. In any event, the neutral position of Alstom and Areva cannot be interpreted
as evidence of the existence of the common understanding. Given that the burden of proof is on the Commission in proceedings
under Article 81 EC and Article 53 of the EEA Agreement, an undertaking’s failure to challenge a fact does not mean that the
fact in question is established.
Third, as submitted by the applicant, the mere fact that it participated in GQ Agreement meetings does not constitute evidence
of the existence of the common understanding. The relevant question is whether, as the Commission claims, that understanding
was implemented by the various participants at the same time as the GQ Agreement and in conjunction with it.
Fourth, it is apparent from recital 127 of the contested decision that, at the meeting of 10 July 2002 during which there
was discussion of the development of the modes of operation of the cartel after Siemens and Hitachi had withdrawn from it,
Alstom proposed that the European producers should stay in Europe and the Japanese producers should stay in Japan and not
attempt to enter the European market. In addition, it is stated in that recital that, at the following meeting on 15 July
2002, the representative of Hitachi had stated that Hitachi rejected that proposal, that the European producers had reacted
by stating that Europe, including Central and Eastern Europe, was their market and that they wanted to maintain the prices
they were currently charging in Western Europe and had also said that the issue was to be raised again, even though that was
not the case.
At first sight, that summary of the meetings of 10 and 15 July 2002, based on the evidence furnished by Hitachi, suggests
that Alstom actually proposed that a new understanding be concluded, which was rejected by Hitachi and was not discussed subsequently,
which implies that, at least as of July 2002, there was no understanding in existence relating to the conduct of the Japanese
producers on the EEA market.
However, the summary of the meeting of 15 July 2002 shows, first, that Hitachi did not reject the very idea of allocating
markets, but only Alstom’s concrete proposal. Second, it is stated in that summary that Hitachi had pointed out that the claims
made by the European producers included Central and Eastern Europe, which suggests that its opposition was related to that
specific aspect, but not to the situation in Western Europe.
It should also be noted that Alstom’s presentation of the proposal at issue calls into question the applicant’s arguments
in relation to competition on the EEA market. If, as claimed by the applicant, the Japanese producers were not perceived as
credible competitors on the EEA market because of the existence of insurmountable barriers to entry, an understanding relating
to that very market would indeed not have served any purpose. In such a situation, the European producers, aware of that fact
as a result of their privileged position in Europe, would have had no reason to propose such an understanding. However, it
is apparent from the summary provided by Hitachi that Alstom’s proposal concerned the EEA market as well as the Central and
Eastern European market.
Accordingly, it is necessary to uphold the interpretation that, at the meeting of 10 July 2002, Alstom proposed extending
the common understanding, as alleged by the Commission, to include Central and Eastern European countries.
Fifth, as noted in recital 131 of the contested decision, the content of the EQ Agreement is relevant, to a certain extent,
in so far as concerns the existence of the common understanding.
In accordance with point 4 of part ‘E (E-Members)’ of Annex 2 to the EQ Agreement, the European producers ‘decide about notification
of [E]uropean projects to [the group of Japanese producers]’. It is apparent from the context of Annex 2 that the information
was to be communicated prior to the allocation of the GIS projects concerned.
This makes it possible to dismiss, to a certain extent, the applicant’s arguments, since it suggests that the European producers
considered that the Japanese producers might have been interested, at the very least, in the allocation process of certain
GIS projects in the EEA, and that they were therefore potential competitors for such projects.
However, nothing in the EQ Agreement or in the other evidence adduced by the Commission proves that the mechanism concerned
was implemented by the European producers or that the Japanese producers were aware of its existence. Accordingly, the EQ
Agreement constitutes merely an indication of how the European undertakings perceived their Japanese counterparts.
In the light of all of the foregoing, it must be concluded, first, that the statement made by Fuji in its reply to the statement
of objections tends to corroborate the evidence furnished by ABB in relation to the existence of a common understanding; its
probative value is however limited. Similarly, the proposal made by Alstom at the meeting of 10 July 2002 constitutes evidence
that the common understanding existed at the time of that meeting. Furthermore, the content of the EQ Agreement constitutes
an indication that the Japanese producers were regarded as credible competitors for the provision of certain GIS projects
in the EEA, as claimed by the Commission.
Second, neither VA TECH’s position as regards the existence of the common understanding, nor that of Alstom or Areva, nor
the applicant’s mere participation in GQ Agreement meetings constitutes evidence which corroborates that furnished by ABB
in relation to the existence of the common understanding.
The notification and project loading mechanism
–       Arguments of the parties
First, the applicant maintains that the Commission’s argument relating to the notification and project management mechanism
is based on the claim that Japanese producers were perceived as potential competitors on the GIS market in the EEA. That claim
is called into question by VA TECH’s express statement that it was almost impossible for European producers to offer their
products in Japan, and vice versa, and the witness statement of Mr M, from which it is apparent that entry on to the European
market was not profitable for Japanese undertakings. Consequently, the claims relating to the notification and project loading
mechanism are based on a manifestly factually inaccurate premiss. Moreover, in that context, the Commission’s argument that
the existence of project loading shows the lack of barriers to entry to the European market and, consequently, the existence
of the common understanding, is circular.
Second, the applicant submits that the Commission’s claims relating to the notification and project loading mechanism have
not been established to the requisite legal standard. It its view, the Commission bases its claims on the fact that Japanese
producers were systematically informed of GIS projects in European countries other than the home countries, in order to facilitate
loading into the joint ‘European’ quota. However, the evidence other than ABB’s statements relied on by the Commission does
not establish either the systematic nature of the notification or the existence of any distinction between home countries
and other European countries.
In that regard the applicant submits first that it was not a party to the EQ Agreement and that, consequently, the latter
can be regarded only as a unilateral decision by the European producers. Furthermore, in its view, Annex 2 to that agreement
does not provide for systematic notification to Japanese producers but, on the contrary, excludes it, since it leaves the
European producers free to decide whether to report European projects. Similarly, that annex does not provide for loading
of the European projects into the joint ‘European’ quota.
Next, the list of GIS projects, supplied by ABB, is a document compiled by ABB, which was not disclosed to the other cartel
participants. Consequently, in the applicant’s view, that list does not constitute evidence of systematic notification of
European GIS projects to the Japanese undertakings.
Finally, the extract from Hitachi’s leniency application, to the effect that Siemens regularly circulated a table summarising
the GIS projects allocated to European and Japanese undertakings, does not make it clear whether the exchanges in question
concerned European GIS projects, and the context of that statement suggests that that was not the case. As regards the statement
contained in Hitachi’s reply to the statement of objections to that effect that notification was carried out in order to facilitate
loading, that statement is not supported by any other Japanese producer and is even specifically contradicted both by the
applicant and by Fuji, the latter having indicated that information concerning the allocation of European GIS projects was
not systematically provided to the Japanese producers.
Third, the applicant maintains that the notification and project loading mechanism described by the Commission is complicated
and is not self-implementing. Accordingly, it is unlikely that there was no mention of the mechanism in the GQ Agreement or
in any other contemporaneous document.
Fourth, even supposing that certain European projects were loaded into the joint ‘European’ quota provided for in the GQ Agreement,
that fact is not indicative of an infringement committed by the applicant. In the applicant’s view, loading could only have
taken effect outside EEA territory, since it gave the right to more projects outside that area to Japanese producers. That
does not amount to an infringement of Article 81 EC and Article 53 of the EEA Agreement.
The Commission considers the applicant’s arguments to be unfounded.
–       Findings of the Court
The Court notes, at the outset, that the Commission’s claims relating to the notification and project loading mechanism are
not based exclusively on the assumption that the Japanese producers were perceived as credible competitors on the EEA market.
The Commission considers that it gathered positive evidence of the existence of that mechanism. Accordingly, the probative
value of the evidence put forward by the Commission must be examined in order to assess whether it establishes, to the requisite
legal standard, the existence of the notification and project loading mechanism, notwithstanding the claims made by some of
the undertakings concerned.
It should be noted that, in his witness statement, Mr M explicitly affirmed the existence of the notification and project
loading mechanism. He also stated that that mechanism did not concern GIS projects in the home countries, that is to say in
Japan and in certain European countries. On the other hand, he did not state that the reality or the relevance of that mechanism
was called into question by the fact that, in his view, the Japanese undertakings had no commercial interest in entering the
EEA market.
The existence of a mechanism whereby the value of GIS projects in the EEA was charged to the worldwide quota laid down in
the GQ Agreement was also confirmed in ABB’s statements.
As regards the EQ Agreement, it has been noted in paragraph 157 above that Point 4 of Part ‘E (E (Members)’ of Annex 2 thereto
related to the possible communication of information prior to the allocation of the GIS projects concerned. By contrast, that
provision did not relate to the monitoring of projects which had already been allocated. Consequently, although its content
suggests that the Japanese producers were regarded as credible competitors for the provision of certain GIS projects in the
EEA, the measures which it provided for are not part of the notification and project loading mechanism as claimed by the Commission.
Therefore, Annex 2 to the EQ Agreement is of no use for proving that mechanism.
Similarly, as the applicant submits, it is not apparent from the list of projects provided by ABB that GIS projects in the
EEA were regularly notified to the Japanese producers. Therefore, it also does not constitute evidence of the notification
and project loading mechanism.
In so far as concerns the evidence furnished by Hitachi, it should be noted that, read in the context of the sentences which
immediately precede it, the statement that Siemens would regularly circulate tables summarising a share of the GIS projects
allocated to the various members of the cartel, refers to GIS projects outside of the EEA. Consequently, that statement is
not relevant as evidence of the notification and project loading mechanism, alleged by the Commission, concerning GIS projects
in the EEA.
By contrast, in its reply to the statement of objections, Hitachi stated that, before it discontinued its participation in
the cartel in 1999, the European producers disclosed to the Japanese producers details of GIS projects which they would be
supplying in Europe, to ensure that those projects were taken into account when agreeing the quota of GIS projects outside
of the EEA allocated to the two groups of producers under the GQ Agreement.
That statement expressly confirms the existence of the notification and project loading mechanism referred to by the Commission
until 1999. In addition, it is of a high probative value for two reasons. First, that statement goes against Hitachi’s interests,
since it implies the existence of a link between the collusive activities within the EEA and the Japanese producers and constitutes,
as a result, incriminating evidence. Second, it is apparent from reading the relevant passage of the reply to the statement
of objections that Hitachi was not aware of the inferences which could be made from that statement.
In addition, as noted in paragraph 55 above, Hitachi did not alter the factual content of its statements relating to the notification
and project loading mechanism in its supplementary reply to the statement of objections.
Fuji, for its part, stated in its reply to the statement of objections that the information concerning the allocation of GIS
projects in the European countries excluded from the scope of the GQ Agreement was not systematically provided to the Japanese
producers and that, consequently, Fuji did not know about the operation of the EQ Agreement. The existence of the notification
and project loading mechanism was also disputed by the applicant, as is apparent in particular from the extract from the transcript
of its hearing.
It should be noted none the less that the positions of Fuji and the applicant are not contrary to their own interests since
they seek to call into question the existence of any infringement of Article 81 EC and Article 53 of the EEA Agreement. They
are thus of a lower probative value than the relevant evidence furnished by ABB and Hitachi.
Moreover, Fuji’s secondary role within the cartel, noted in paragraph 144 above, may explain the fact that Fuji was not privy
to all the information exchanged by the group of European producers. That also calls into question the reliability of Fuji’s
statements in that regard compared with that of the evidence furnished by ABB and Hitachi, which were members of the committees
of their respective groups and were, for that reason, more closely associated with the detailed operation of the cartel alleged.
Furthermore, although the notification and project loading mechanism required certain measures for its implementation, those
measures were not particularly complicated, since they essentially consisted in the disclosure of certain information by the
European group to the Japanese group, a disclosure which, in addition, took place in parallel with the information disclosed
under the GQ Agreement concerning GIS projects outside of the EEA. Consequently, it is not apparent that such measures necessarily
required written rules, also given the desire of parties to an anti‑competitive agreement to reduce the risk of that agreement
being discovered.
In the light of all of the foregoing, it must be concluded that the existence of the notification and project loading mechanism
has been established to the requisite legal standard by the evidence furnished by ABB, as corroborated by Hitachi’s statements
in its reply to the statement of objections.
Contrary to what the applicant claims, it is not apparent from the evidence referred to in the preceding paragraph that the
notification and project loading mechanism was implemented occasionally and in a discretionary manner. Although ABB’s and
Hitachi’s statements and Mr M’s witness statement do not address that subject explicitly, it is clear from the wording used
in the documents at issue that notification was carried out regularly and applied to all of the participants and projects
concerned. As explained in paragraph 181 above, Fuji’s statements are less reliable in that respect than the evidence provided
by ABB and Hitachi. In addition, it has been noted in paragraph 173 above that Annex 2 to the EQ Agreement does not concern
notification and project loading, as claimed by the Commission, and is thus not relevant in that regard.
As regards the implementation period of the notification and project loading mechanism, ABB’s statements do not refer to a
specific period and may therefore, a priori, be interpreted as referring to the entire duration of the infringement. As for
Mr M’s statements, they refer to the period during which he was involved in the cartel, that is to say from 1988 to June 2002.
However, in so far as it has been noted in paragraph 90 above that the evidence provided by ABB had to be corroborated by
other evidence, it must be pointed out that Hitachi’s statements concern the period preceding the date when it discontinued
its participation in the cartel in 1999. Therefore, it must be considered that the existence of the notification and project
loading mechanism was established for that latter period.
As regards the relevance of the notification and project loading mechanism in proving the existence of the common understanding,
it must be found that the mechanism constitutes a serious indicator that the Japanese producers were perceived by the European
producers as potential credible competitors on the EEA market. If the European market were actually impenetrable for the Japanese
producers because of the barriers to entry, the European producers would have no reason to notify the results of the allocation
of certain GIS projects in the EEA and,
a fortiori
, to load those projects into the joint ‘European’ quota provided for in the GQ Agreement, since such loading would deprive
them of a share of the GIS projects in the regions covered by the GQ Agreement. Consequently, the existence of such a notification
and project loading mechanism implies that the Japanese undertakings could have entered the European market. If they did not
do so it is because they committed themselves not to, in exchange for a larger share of the GIS projects outside of the EEA.
Thus, the mechanism at issue constitutes a link between the collusive activities within the EEA and the Japanese producers
and, as a result, indirect evidence of the existence of the common understanding.
The question whether the notification and project loading mechanism affected the EEA market is irrelevant in this case. As
noted in paragraph 97 above, the basis of the Commission’s complaint against the applicant in the contested decision is the
commitment of the Japanese undertakings not to enter the EEA market, which is indirectly proven by the existence of the notification
and project loading mechanism. By contrast, it is not apparent from the contested decision that, in the Commission’s view,
that mechanism constitutes a separate infringement of Article 81 EC and Article 53 of the EEA Agreement.
Similarly, in the light of the reasoning set out in paragraph 186 above, it is not necessary to establish that the notification
and project loading mechanism did not concern GIS projects in the European home countries to be able to regard that mechanism
as a relevant indication of the existence of the common understanding. Consequently, the fact that Mr M’s witness statement
may not be corroborated in that regard is of no significance.
In the light of all of the above, it must be held that the regular notification to the group of Japanese producers of certain
GIS projects in the EEA after their allocation and the loading of those projects into the joint ‘European’ quota, provided
for in the GQ Agreement, has been established, in so far as concerns the period from 1988 to Hitachi’s withdrawal from the
cartel in 1999, by ABB’s statements, those of Hitachi and Mr M’s witness statement. In addition, the mechanism at issue constitutes
indirect evidence of the existence of the common understanding alleged by the Commission.
The evidence allegedly contradicting the existence of the common understanding
–       Arguments of the parties
The applicant submits, first, that it is apparent from the file that, at the meeting of 15 July 2002, Hitachi rejected the
proposal made by Alstom to conclude the common understanding.
Second, the applicant maintains that it is not alone in denying the existence of the common understanding; Hitachi, Melco,
VA TECH and Siemens also deny its existence. In particular, Siemens submitted a statement from one of its employees, Mr T,
who participated in the activities of the cartel, according to which there was no understanding relating to the mutual reservation
of Japanese and European markets. In the contested decision, the Commission did not address that evidence and based its findings
on the other contradictory evidence furnished by ABB.
The applicant also notes that, in its view, the existence of the common understanding was irrelevant to a large extent for
the European producers which had admitted the existence of a European cartel. Accordingly, silence on their part was to be
expected, since they had an interest in contesting as few facts as possible in order not to jeopardise their leniency applications.
Third, the applicant criticises the Commission for ignoring the agreement entitled ‘General Rules for GE Agreement’ (‘the
GE Agreement’), concluded by the European producers on 17 March 1987 in order to share European GIS projects among the parties.
According to the applicant, the existence of an agreement concerning European GIS projects, predating the GQ Agreement, contradicts,
first, the Commission’s allegation that the common understanding afforded comfort to European producers to organise the collusion
for those projects. Next, the existence of the GE Agreement also undermines the Commission’s finding in the contested decision
that the allocation of GIS projects at worldwide level started with the allocation of the Japanese market to the Japanese
producers and of the European market to the European producers. The collusion commenced when the European producers shared
the European market among themselves. Finally, in so far as the European producers had implemented a cartel concerning GIS
projects in Europe, they had no interest in sharing those projects with the Japanese undertakings, which were not considered
as credible competitors on the EEA market, or in reaching a common understanding with them.
The Commission considers the applicant’s arguments to be unfounded.
–       Findings of the Court
First, as has been noted in paragraph 155 above, the Court considers that, at the meeting of 10 July 2002, Alstom proposed
to extend the common understanding, as claimed by the Commission, to the countries of Central and Eastern Europe. This corroborates
the existence of the common understanding.
Second, the Commission did not err in considering that the statements and witness statements of ABB, the statements of Fuji
relating to the existence of the common understanding and the statements of Hitachi relating to notification and project loading
had to be regarded as being of a higher probative value than the claims made by Hitachi, Melco, VA TECH and Siemens that there
was no common understanding.
Unlike the first group of evidence, the claims at issue are not contrary to the interests of the undertakings concerned, since
they seek to call into question the existence of any infringement of Article 81 EC and Article 53 of the EEA Agreement. That
finding also applies to Mr T’s witness statement in which he merely set out the background of the GQ Agreement, challenged
the existence of the common understanding and referred to barriers to entry both on the EEA market and on the Japanese market.
As regards the common understanding in particular, Mr T’s witness statement does not contain any additional evidence to that
furnished by the addressees of the statement of objections.
In addition, it cannot be considered that the European undertakings, including Siemens, had no interest in contesting the
existence of the common understanding, since that understanding was interpreted by the Commission in the statement of objections
as a collusive agreement between the European producers and the Japanese producers in relation to the EEA market and thus
constituted an infringement of Article 81 EC and Article 53 of the EEA Agreement. Indeed, such a finding was detrimental to
the interests of the European producers, at least potentially, if the Commission had not been able to establish the other
objections against them to the requisite legal standard.
Third, the applicant’s argument relating to the GE Agreement is based on the premiss that that agreement was signed and implemented
independently of the GQ Agreement or the common understanding. In that regard, it is not disputed that the GE Agreement was
signed prior to the GQ and EQ Agreements. However, that does not imply that the GE Agreement was not linked to the other evidence
of the worldwide cartel as claimed by the Commission.
Under Article 15 of the GE Agreement, that agreement was initially intended as a temporary solution valid until the entry
into force of the GQ Agreement and, failing that, had to be renegotiated after 31 December 1988. Thus, it is apparent that,
when concluding the GE Agreement, the signatories already anticipated the establishment of the worldwide cartel and its various
components, including, according to the Commission’s claims, the common understanding. That interpretation is corroborated
by Mr M’s witness statement, according to which the worldwide cartel came about as a result of years of complex negotiations
prior to the signing of the GQ Agreement.
In addition, according to Mr M, the mutual commitment of the two groups of producers not to enter the domestic markets of
the other group, which constitutes the main part of the common understanding alleged by the Commission, predated the conclusion
of the GQ Agreement. Consequently, that commitment could be taken into consideration by the European producers when signing
the GE Agreement.
Accordingly, it cannot be considered that the GE Agreement calls into question the existence of the common understanding alleged
by the Commission.
Global assessment
It is apparent from the examination carried out in paragraphs 111 to 189 above, first, that ABB’s statements and the witness
statements of its employees and of its former employee show that an understanding existed whereby the European and Japanese
producers undertook mutually not to enter the domestic markets of the other group. Those items of evidence also make it possible
to identify the parties to the understanding and to conclude that, although it was probably concluded prior to the GQ Agreement,
it was concluded, at the latest, at the time the GQ Agreement was concluded.
Second, the existence of the mutual understanding referred to above is corroborated by the proposal made by Alstom at the
meeting of 10 July 2002. The existence of the commitment of the Japanese undertakings not to enter the European market is
also corroborated by Fuji’s statements.
Third, it is apparent from ABB’s statements and its witness statement, corroborated by Hitachi’s statements, that the Japanese
producers accepted, at least in so far as concerns the period from 1988 to 1999, the regular notification of the results of
the allocation of certain GIS projects in the EEA and their loading into the joint ‘European’ quota provided for in the GQ
Agreement. Similarly, under Point 4 of Part ‘E (E (Members)’ of Annex 2 to the EQ Agreement, the European producers foresaw
the possibility of providing the Japanese producers with the details of certain GIS projects in the EEA prior to their allocation.
Those two factors suggest that the Japanese producers were regarded as credible competitors for the provision of certain GIS
projects in the EEA, but that they had committed not to enter the European market in exchange for a larger share of the GIS
projects in other regions. They thus constitute indirect evidence of the existence of the mutual understanding between the
European producers and the Japanese producers.
Thus, the evidence produced by the Commission supports its assertions regarding the existence of the common understanding,
as summarised in paragraph 96 above. By contrast, the evidence relied on by the applicant and assessed in paragraphs 196 to
203 above is not capable of calling those statements into question. It must therefore be found that the existence of the common
understanding has been established to the requisite legal standard.
That conclusion means that the Court must reject the applicant’s complaints alleging an infringement of the principle of the
presumption of innocence and that the Commission went beyond its powers, as explained in paragraph 101 above.
In addition, since the Commission did not base its findings solely on the conduct of the undertakings at issue on the market
in concluding that the alleged infringement had been committed, it is not sufficient for the applicant to substitute its own
alternative plausible version of the facts for the version given by the Commission. Consequently, the alternative explanation
proposed by the applicant is irrelevant in so far as concerns the existence of that infringement.
Accordingly, the first plea must be rejected.
Furthermore, it is apparent from the foregoing that the Commission was able to conclude that the common understanding existed
without taking account of Fuji’s observations of 21 November 2006 as incriminating evidence. Consequently, in accordance with
what has been stated in paragraph 53 above, ultimately it is necessary to dismiss the second part of the third plea, alleging
an infringement of the right of access to the file and, consequently, the third plea in its entirety.

The second plea, alleging that the Commission has not established a single and continuous infringement
In the context of the first part of the second plea, the applicant maintains that the Commission has not proved the existence
of a single infringement encompassing the GQ Agreement, the common understanding and the anti‑competitive conduct of the European
producers within the EEA. In the context of the second part of the second plea, the applicant claims that the Commission has
not shown that the cartel existed between September 1999 and 25 March 2002 nor that the applicant participated in the cartel
during that period.
The Commission considers the applicant’s arguments to be unfounded.
The first part of the second plea, relating to proof of a single infringement
–       Arguments of the parties
The applicant maintains that, even supposing that the Commission had adequately demonstrated the existence of the common understanding,
it did not establish that the applicant intended to contribute to the sharing of projects, bid rigging, price fixing and other
anti‑competitive behaviour engaged in by the European producers within the EEA. It states that, in the contested decision,
the Commission considered that the European producers endeavoured not to let the Japanese producers know of the activities
of the European cartel governed by the EQ Agreement, even drawing up a detailed mutual non-disclosure agreement.
The applicant thus considers that the conditions laid down in the case‑law for an undertaking to be able to be held responsible
for all aspects of an infringement and, in particular, in this case the conduct of the European producers, are not fulfilled.
According to the applicant, it never attended meetings concerning the cartel’s activities within the EEA. In addition, the
Commission did not prove that the applicant intended to contribute by its own conduct to the common objectives pursued by
all the participants. In that regard, the mere possibility that the applicant could deduce the existence of collusive conduct
within the EEA is not sufficient.
The applicant also contends that the Commission has no power to take action against and penalise agreements which do not have
the object or effect of restricting competition in the EEA, such as the GQ Agreement.
The Commission considers the applicant’s arguments to be unfounded.
–       Findings of the Court
The agreements and concerted practices referred to in Article 81(1) EC are necessarily the result of collusion on the part
of a number of undertakings, all of whom are co-perpetrators of the infringement, but whose participation can take different
forms, varying, in particular, according to the characteristics of the market concerned and the position of each undertaking
on that market, the aims pursued and the means of implementation chosen or envisaged. However, the mere fact that each undertaking
takes part in the infringement in ways particular to it does not suffice to exclude its liability for the entire infringement,
including its liability for conduct which, in practical terms, is put into effect by other participating undertakings, but
which has the same anti-competitive object or effect (Case C‑49/92 P
Commission
v
Anic Partecipazioni
[1999] ECR I‑4125, paragraphs 79 to 80). The case‑law cited above is applicable, by analogy, to Article 53(1) of the EEA
Agreement.
Thus, an undertaking that has taken part in such an infringement through conduct of its own which constituted an agreement
or concerted practice having an anti‑competitive object for the purposes of Article 81(1) EC and which was intended to help
bring about the infringement as a whole is also liable, throughout the entire period of its participation in that infringement,
for conduct put into effect by other undertakings in the context of the same infringement where it is established that the
undertaking in question was aware of the offending conduct of the other participants or that it could reasonably have foreseen
it and that it was prepared to take the risk (
Commission
v
Anic Partecipazioni
, paragraph 218 above, paragraph 83). The case‑law cited above is applicable, by analogy, to Article 53(1) of the EEA Agreement.
In the present case, first, it is apparent from the examination of the first plea that the Japanese undertakings, including
the applicant, participated along with the European undertakings in the common understanding, which was an agreement between
undertakings within the meaning of Article 81 EC and Article 53 of the EEA Agreement concerning the European market for GIS
projects. Consequently, the Commission was competent to bring an action against the applicant and to fine it for its participation
in that agreement. In addition, the existence of the common understanding implies that the Japanese undertakings were aware
of the fact that the GIS projects in the EEA were reserved for European producers.
In that regard, the fact that the applicant did not participate in the specific collusive measures in the EEA is irrelevant.
Given the nature of its commitment under the common understanding, its participation would not have been necessary. The Japanese
producers had no interest in intervening in the actual allocation of GIS projects in the EEA which they had committed themselves
not to take. Their sole interest would have been to learn the value of the projects concerned and the identity of the undertakings
to which they were awarded, in order to be able to monitor the loading into the joint ‘European’ quota provided for in the
GQ Agreement. At least in so far as concerns the period from 1988 to 1999, that information was communicated to the Japanese
producers via the notification mechanism.
Accordingly, it must be found that the passive role of the Japanese producers in respect of the allocation of GIS projects
on the EEA market was not due to their choosing but to the form of their participation in the agreement relating to the EEA
market. On the other hand, that same participation was a prerequisite for ensuring that the allocation of GIS projects in
the EEA between European producers could be carried out pursuant to the principle of the protection of home countries or pursuant
to the GE Agreement.
Second, ABB’s statements and Mr M’s witness statement suggest that, although the common understanding was not referred to
explicitly in the GQ Agreement, it was behind its operation since it made it possible to ensure the confidence required for
the worldwide cartel to be able to function. The existence of the link between the common understanding and the GQ Agreement
is confirmed by Mr V.-A’s witness statement which states that, at a meeting on the GQ Agreement, the need to comply with the
common understanding was discussed between the European undertakings and a representative of the Japanese undertakings.
Third, the notification and project loading mechanism constitutes a link between the collusive activities of the European
undertakings within the EEA and the worldwide cartel governed by the GQ Agreement. Through that mechanism, the results of
the allocation of certain GIS projects in the EEA were taken into account when allocating GIS projects in other regions pursuant
to the GQ Agreement. The existence of the mechanism concerned is established by the statements and witness statements of ABB
and by Hitachi’s statements.
In that respect, it is not apparent from the evidence produced by the applicant that the non-disclosure agreement between
the European producers was actually concluded nor,
a fortiori
, that the exchange of information between the two groups of producers was affected as a result.
Fourth, it must be held that, as a result of the regular notification of the results of calls for tenders for certain GIS
projects in the EEA, carried out at least from 1988 to 1999, the Japanese undertakings could reasonably have envisaged that
the allocation of GIS projects in the EEA among European producers was the result of collusive activity. The fact that a group
of producers has communicated to it regularly, over several years, the results of calls for tenders in which the members of
another group of producers in the same industrial sector participated, without any apparent legitimate reason, goes beyond
the limits of normal competitive conduct. Notification should therefore have given rise to doubts regarding the conditions
under which the GIS projects concerned were allocated. That is all the more the case since the results of a call for tenders
are not necessarily public information, in particular in so far as concerns calls for tenders launched by private undertakings
and in respect of the details of the winning tender.
In that regard, the Commission rightly stated, in recital 277 of the contested decision, that knowledge of the collusive nature
of the allocation of GIS projects in the EEA, acquired by the Japanese undertakings as a result of the notification mechanism
between 1988 and 1999, was not likely to be affected by any subsequent interruption of notification. The same applies to TM
T & D. That undertaking took over the GIS business of its shareholders, which were both parties to the cartel. Accordingly,
it can be considered that it had the same knowledge as those shareholders in relation to the allocation of GIS projects in
the EEA.
Fifth, the common understanding, the worldwide cartel governed by the GQ Agreement and the collusive activities of the European
producers within the EEA were implemented at the same time, concerned the same products and involved the same European producers
and, in so far as concerns the common understanding and the GQ Agreement, the same Japanese producers. Similarly, the various
measures had the same objective, namely the establishment of a system for sharing the worldwide market for GIS projects and
allocating those projects among the various participants.
In the light of all the foregoing, it must be held that the Commission did not err in finding that the common understanding,
the worldwide cartel governed by the GQ Agreement and the collusive activities of the European producers within the EEA formed
a single infringement and pursued a common objective. Consequently, the first part of the second plea must be rejected.
The second part of the second plea, relating to proof of a continuous infringement and the continuous participation of the
applicant therein
–       Arguments of the parties
The applicant maintains that the Commission has not demonstrated that it participated in the GQ agreement during the period
in which other undertakings had not taken part, that is to say between September 1999 and 25 March 2002.
First, it claims that, during that period, because of the absence of Siemens in particular, the cartel ‘broke down’ and the
GQ meetings turned into a more or less loose discussion forum without any anti‑competitive object or effect.
Next, the applicant affirms that it did not participate in the GQ Agreement during the period at issue. This is evidenced
by Areva’s statement, according to which it was necessary in 2002 to approach TM T & D for discussions concerning the GIS
market, which implies that TM T & D was not involved in the ongoing discussions. Moreover, ABB’s statement that the cartel
continued between September 1999 and March 2002 is contradictory, since ABB claims both that the applicant continued the operations
of the cartel and that TM T & D re-joined the cartel later at the same time as, in particular, Siemens. Moreover, ABB’s statement
is not corroborated and was made by an undertaking which had sought immunity from fines.
Finally, the applicant observes that the Commission’s references to the cartel in respect of the relevant period are concerned
with the GQ Agreement and, possibly, arrangements existing between the European undertakings, but not with the common understanding.
The Commission considers the applicant’s arguments to be unfounded.
–       Findings of the Court
According to the case‑law, when there is a dispute concerning the existence of an infringement, the requirement of legal certainty,
on which economic operators are entitled to rely, means that the Commission, which bears the burden of proving infringements
which it finds, must adduce evidence which will sufficiently establish the existence of the facts constituting the infringement.
With specific regard to the alleged duration of an infringement, the same principle of legal certainty requires that, 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 (Case T‑43/92
Dunlop Slazenger
v
Commission
[1994] ECR II‑441, paragraph 79; Case T‑62/98
Volkswagen
v
Commission
[2000] ECR II‑2707, paragraph 188; and Case T‑279/02
Degussa
v
Commission
[2006] ECR II‑897, paragraphs 114 and 153).
In addition, the fact that the evidence of the existence of a continuous infringement was not adduced for certain specific
periods does not preclude the infringement from being regarded as having been established during a more extensive overall
period than those periods, provided that such a finding is based on objective and consistent indicia. In the context of an
infringement extending over a number of years, the fact that a cartel reveals itself at different periods, which may be separated
by more or less lengthy intervals, has no impact on the existence of that cartel, provided that the various actions which
form part of the infringement pursue a single aim and come within the framework of a single and continuous infringement (Case
C‑113/04 P
Technische Unie
v
Commission
[2006] ECR I‑8831, paragraph 169).
As regards the continuation of the cartel between September 1999 and March 2002, it should be noted, at the outset, that,
in so far as the commitment of the Japanese undertakings under the common understanding did not consist in a positive action,
but in a failure to act, it is inherently difficult to prove that that understanding was respected continuously.
Nonetheless, first, it is apparent from Mr M’s witness statement that, until the end of his involvement in the cartel in June
2002, both the GQ Agreement and the common understanding continued to be implemented together with the Japanese undertakings
other than Hitachi, in spite of the fact that the latter’s absence and that of Siemens made its operation less effective.
ABB made the same claim in its statements.
Second, in its reply to the statement of objections, Fuji confirms that the Japanese undertakings participated in the infringement,
including in the common understanding, until September 2000, the point at which it claims to have left the cartel.
Third, it has been concluded in paragraph 155 above that, at the meeting of 10 July 2002, Alstom proposed to extend the common
understanding to the countries of Central and Eastern Europe. That implies that the understanding existed both at the time
of the meeting and for a certain amount of time prior to the meeting.
Fourth, the continuous absence of the Japanese producers from the European GIS market during the period concerned also suggests
that the common understanding continued to be implemented.
Fifth, in so far as it has been found, in the context of the first part of this plea, that the Commission did not err in concluding
that there was a single infringement encompassing inter alia the common understanding and the GQ Agreement, it must be found,
contrary to what the applicant claims, that evidence of the continuous functioning of the GQ Agreement, between September
1999 and March 2002, constitutes a relevant indication that the common understanding was also implemented during that period.
Given that the infringement was of a single nature, it is plausible that the disappearance of the common understanding would
have compromised the functioning of the GQ Agreement.
The applicant does not dispute the findings in recitals 191 to 196 of the contested decision that ABB, Alstom and Melco exchanged
a series of faxes related to the allocation of projects under the GQ Agreement in December 2000 and January 2001.
The applicant also confirmed that, among the meetings on the GQ Agreement listed in recital 197 of the contested decision,
it participated in those on 18 May, 13 July and 14 September 2000, while disputing that the other listed meetings took place.
Finally, the applicant does not dispute that the GIS projects listed in recital 198 of the contested decision were allocated
pursuant to the GQ Agreement and it does not furnish any evidence suggesting that it distanced itself from the results of
those allocations or that it did not respect them. Those allocations imply that the cartel was active or, at the very least,
produced effects between 27 August 1998, the date of conclusion of the agreement on the project referred to in recital 198(h)
of the contested decision, and 12 October 2001, the date on which the agreement on the project referred to in recital 198(a)
of the contested decision stopped producing its effects. In that regard, it should be noted that Article 81 EC is applicable
where the effects of a cartel lasted, even though it has not been formally brought to an end (Case T‑13/89
ICI
v
Commission
[1992] ECR II‑1021, paragraph 254, and Case T‑48/98
Acerinox
v
Commission
[2001] ECR II‑3859, paragraph 63). The case‑law cited is applicable, by analogy, to Article 53(1) of the EEA Agreement.
In the light of the foregoing, the applicant’s argument that, during the period concerned, the meetings on the GQ Agreement
became a discussion forum without any anti‑competitive object or effect, cannot be upheld, irrespective of whether that argument
was made during the administrative procedure or not. That is all the more true given that that argument is not corroborated
by any evidence other than Melco’s unsubstantiated statements.
Therefore, it must be found that the evidence relied on by the Commission in respect of the implementation of the common understanding
and the GQ Agreement between September 1999 and March 2002 relates to facts sufficiently proximate in time, which means that
evidence of a continuous infringement was adduced in relation to the period concerned.
It should be added that the evidence referred to in paragraphs 238 to 245 above concern both the implementation of the common
understanding and of the GQ Agreement in general and the applicant’s personal participation in the agreements at issue. Moreover,
in the context of certain projects listed in recital 198 of the contested decision, the content of which it has not disputed,
the applicant is identified as a secretary of the group of Japanese producers. That implies that the applicant actively participated
in the GQ Agreement at the time the projects concerned were allocated.
In that regard, the references to the need to contact TM T & D at the time of the negotiations which took place in 2002 and
to the fact that it rejoined the cartel in 2002 may be explained by the fact that, during that period, the joint venture of
Toshiba and Melco was being created in order to take over the GIS activities of its shareholders. In so far as TM T & D represented
a new structure bringing together the relevant activities of the two members of the cartel, it is logical that the envisaged
changes to the cartel system had to be discussed with it.
As regards the alleged interest of an undertaking which has sought immunity from fines, and of its employees and former employees,
to overstate the anti‑competitive conduct of the other undertakings being investigated, reference should be made to paragraphs
94, 95, 111 and 112 above.
It follows from all of the foregoing that the applicant’s participation in the cartel between September 1999 and March 2002
has been established by evidence which is sufficiently proximate in time.
Consequently, the second part of the second plea must be dismissed, as must therefore the second plea in its entirety.
Since none of the pleas raised in support of the application seeking annulment of Articles 1 and 2 of the contested decision
can succeed in so far as concerns the applicant, it must be dismissed.
2.
The application seeking the annulment or a substantial reduction of the fine imposed on the applicant
In its fourth plea, the applicant submits that the fine imposed on it is discriminatory and excessive. That plea is divided
into six parts. The first part alleges an error in the assessment of the relative gravity of its participation in the infringement.
The second part alleges an error in the calculation of the duration of the infringement. The third part alleges a failure
to respect the obligation to state reasons in relation to the calculation of the fine. The fourth part alleges an error in
the calculation of the starting amount. The fifth part alleges that the fine is excessive in relation to the infringement
committed by TM T & D. The sixth part alleges an error in the assessment of the attenuating circumstances.
The Commission considers the applicant’s arguments to be unfounded.

The first part, alleging an error in the assessment of the relative gravity of the applicant’s participation in the infringement
Arguments of the parties
The applicant observes that the proportion of the fines imposed on the European producers and Japanese producers corresponds
to the proportion of the quotas laid down in the GQ Agreement. It infers from this that it received a fine for its conduct
in the context of the GQ Agreement. However, such an approach is erroneous and discriminatory in its view. First, the Commission
did not take account of the fact that the relative gravity of the applicant’s participation in the infringement is lesser,
in so far as it took part only in the common understanding, whereas the European producers participated both in that understanding
and in the collusive activities related to the GIS projects in the EEA. Second, the applicant submits that, by penalising
it for conduct outside the EEA, the Commission exceeded its powers.
The Commission considers the applicant’s arguments to be unfounded.
Findings of the Court
According to settled case law, where an infringement has been committed by several undertakings, the relative gravity of the
participation of each of them must be examined (see
Commission
v
Anic Partecipazioni
, paragraph 218 above, paragraph 150, and the case‑law cited). Thus, the fact that an undertaking has not taken part in all
aspects of an anti-competitive scheme or that it played 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 when the fine is determined (
Commission
v
Anic Partecipazioni
, paragraph 218 above, paragraph 90).
It is pointed out, first of all, in that regard, that the contested decision does not penalise its addressees for having participated
in the GQ Agreement, which did not concern the territory of the EEA. Article 1 of the contested decision states clearly that
the infringement of Article 81 EC and Article 53 of the EEA Agreement concerned the GIS sector in the EEA. Accordingly, the
argument alleging a lack of competence on the part of the Commission must be rejected.
Moreover, it is apparent from the examination of the first plea that the participation of the Japanese producers in the agreements
and concerted practices concerning the EEA was not the same as that of the European producers. The Japanese undertakings committed
themselves, under the common understanding, not to enter the EEA market and their participation thus consisted of a failure
to act. The European undertakings, for their part, distributed the various GIS projects on that same market through active
collusion.
However, there is no substantial difference in respect of the gravity of those two types of conduct. As noted in paragraph
221 above, given the nature of the applicant’s commitment under the common understanding, the fact that it did not participate
in the distribution of GIS projects in the EEA is irrelevant, since it was not necessary for it to intervene. Thus, the fact
referred to by the applicant was not the result of its choice, but a mere consequence of the nature of its participation in
the agreement relating to the EEA market. On the other hand, that same participation was a prerequisite for ensuring that
the allocation of GIS projects in the EEA could be carried out among the European producers in accordance with the rules agreed
to that effect.
Consequently, it must be considered that the gravity of the conduct of the Japanese undertakings is comparable to that of
the conduct of the European undertakings. The first part of the fourth plea must therefore be rejected.

The second part of the fourth plea, alleging an error in the assessment of the duration of the infringement
Arguments of the parties
Referring to the arguments concerning suspension of the activities of the cartel and the applicant’s participation therein
between September 1999 and March 2002, set out in paragraphs 230 to 233 above, the applicant claims that its fine should be
reduced.
The Commission considers the applicant’s arguments to be unfounded.
Findings of the Court
In this part of the plea the applicant merely repeats the arguments which have already been examined in the context of the
second part of the second plea. It is apparent from paragraphs 235 to 252 above that those arguments do not enable the finding
that the Commission committed an error in finding that the cartel continued between September 1999 and 25 March 2002 and in
calculating the duration of the applicant’s participation in the cartel.
Accordingly, the second part of the fourth plea must be rejected.

The third part of the fourth plea, alleging a failure to state reasons in relation to the calculation of the fine
Arguments of the parties
The applicant maintains that the Commission did not adequately explain the calculation method used to determine the fine imposed
on it. It invokes, in that regard, the difficulties faced by it in determining the amount it must pay to the Commission and
alleges that its position is confirmed by the opinion of economists with relevant experience. Consequently, it considers that
the Commission failed to fulfil its obligation to state reasons.
The Commission considers the applicant’s arguments to be unfounded.
Findings of the Court
The reasoning required by Article 253 EC must show clearly and unequivocally the reasoning of the institution which adopted
the measure so as to enable the persons concerned to ascertain the reasons for the measure and to enable the Community judicature
to exercise its power of review (Case C‑338/00 P
Volkswagen
v
Commission
[2003] ECR I‑9189, paragraph 124). Although Article 253 EC requires the Commission to state the factual and legal matters
justifying the adoption of a decision, together with the legal considerations which have led to its adopting it, that provision
does not require the Commission to discuss all the matters of fact and of law which may have been dealt with during the administrative
proceedings (Joined Cases 43/82 and 63/82
VBVB and VBBB
v
Commission
[1984] ECR 19, paragraph 22; Case 246/86
Belasco and Others
v
Commission
[1989] ECR 2117, paragraph 55; and
Volkswagen
v
Commission
, paragraph 127). The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in
particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of
the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see Case
C‑367/95 P
Commission
v
Sytraval and Brink’s France
[1998] ECR I‑1719, paragraph 63, and the case‑law cited). The case‑law cited above is applicable, by analogy, to the Commission’s
decisions finding an infringement of Article 53(1) of the EEA Agreement.
In the present case, the evidence set out in recitals 471 to 552 of the contested decision makes it possible to understand
the method chosen by the Commission to calculate the fine and to follow its various stages.
Moreover, in so far as the applicant merely claims that it experienced difficulties in calculating the fine which it must
pay the Commission, without specifying the nature of those difficulties and the stage of the calculation at which they occurred,
and has not reproduced the observations of the economists whom it claims to have consulted, its arguments relating to the
reasons for the calculation of the fine cannot be examined in further detail.
Consequently, the third part of the fourth plea must be rejected.

The fourth part of the fourth plea, alleging an error in the calculation of the starting amount
Arguments of the parties
The applicant asserts that the starting amount of the fine is arbitrary and discriminatory.
It alleges, first, that the Commission calculated the fines imposed on the basis of turnover figures relating both to GIS
as a stand-alone product and GIS based sub‑stations. That approach was unfavourable to the Japanese producers since GIS projects
in the Middle East and in Asia, carried out in general by Japanese producers, often involve turnkey substations and consequently
include products and services other than GIS. Consequently, the turnover of Japanese producers tends to be larger than that
of the European producers.
Second, the Commission relied on the turnover for the year 2003, that is to say the last full year of the infringement, in
order to determine the market shares of the European undertakings, whereas it used the higher turnover of 2001 for the Japanese
producers, and did so without giving convincing reasons. According to the applicant, the Commission should have used the 2003
turnover for all the cartel members, dividing by two the turnover of the two joint ventures in which the GIS business of the
four Japanese producers was concentrated at the time. Such an approach would have been consistent with the treatment of the
European producers and with the Commission’s earlier decision-making practice.
Third, the applicant maintains that the Commission incorrectly placed it in the same group as Alstom and Areva. In its view,
assuming that the 2003 turnover was used as the basis for calculating the starting amount of the applicant’s fine, the difference
in market shares between the applicant and Alstom or Areva is greater than that between the applicant and the companies in
the group below it, which implies that the applicant should have been classified in the latter group.
As regards the first complaint, the Commission contends that the simple fact that consideration of certain products gives
a higher turnover does not constitute evidence of discrimination.
As regards the second complaint, the Commission states that it chose the year 2001 as the reference year because that was
the year preceding the establishment of the joint venture between the applicant and Melco, namely TM T & D. It explains in
that regard that the parent companies participated in the cartel on an individual basis for most of its duration, which means
that it was more appropriate to determine the starting amounts on the basis of their respective turnover figures, in order
to take account, in particular, of the differences between their individual market shares at the time of TM T & D’s creation.
Third, the Commission maintains that the complaint relating to the placement of the applicant in a certain group can be upheld
only if the complaint relating to the choice of reference year is also upheld. That is not the case however.
Findings of the Court
The Court points out, at the outset, that the Commission has a margin of discretion when fixing the amount of fines, in order
that it may direct the conduct of undertakings towards compliance with the competition rules (see Joined Cases T‑236/01, T‑239/01,
T‑244/01 to T‑246/01, T‑251/01 and T‑252/01
Tokai Carbon and Others
v
Commission
[2004] ECR II‑1181, paragraph 216, and the case‑law cited).
The amount of the fine is set by the Commission according to the gravity of the infringement and, where appropriate, to its
duration. The gravity of an infringement has to be determined by reference to criteria such as the particular circumstances
of the case, its context and the dissuasive effect of the fines. Objective factors such as the content and duration of the
anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to
the economic public order must be taken into account. The analysis must also take into consideration the relative importance
and market share of the undertakings responsible and also any repeated infringements (
Aalborg Portland and Others
v
Commission
, paragraph 40 above, paragraphs 89 to 91).
However, each time the Commission decides to impose fines pursuant to competition law, it must observe general principles
of law, which include the principle of equal treatment as interpreted by the Community Courts (Case T‑59/02
Archer Daniels Midland
v
Commission
[2006] ECR II‑3627, paragraph 315). According to settled case‑law, the principle of equal treatment or non-discrimination
requires that comparable situations must not be treated differently and that different situations must not be treated in the
same way unless such treatment is objectively justified (see Case T‑311/94
BPB de Eendracht
v
Commission
[1998] ECR II‑1129, paragraph 309, and the case‑law cited).
To the extent to which reliance is to be placed on the turnover of undertakings involved in the same infringement for the
purpose of determining the proportions between the fines to be imposed, the period to be taken into consideration must be
ascertained in such a way that the resulting turnovers are as comparable as possible (Joined Cases 100/80 to 103/80
Musique Diffusion française and Others
v
Commission
[1983] ECR 1825, paragraph 122).
In the present case, it is apparent from recitals 480 to 490 of the contested decision that, when calculating the starting
amounts, the Commission decided, in accordance with section 1 A of the Guidelines on the method of setting fines, to apply
differential treatment to the cartel participants on the basis of their capacity to harm competition. To that end, it placed
the various undertakings into five groups in accordance with the size of their worldwide turnovers obtained from GIS sales.
In that regard, the Commission considered that the turnovers relating solely to the EEA market did not constitute a reliable
criterion for assessment in so far the common understanding aimed to ensure that the Japanese producers did not enter that
market.
As regards the products to be taken into consideration for the calculation of the turnover of the undertakings concerned,
it should be noted that, in accordance with the case‑law cited in paragraph 281 above, the Commission must, inter alia, take
account of the extent of the market affected. In the present case, as stated in recital 9 of the contested decision, the cartel
concerned both GIS as a stand-alone product and GIS based sub‑stations. Consequently, the Commission did not err in calculating
the starting amount of the fines of the undertakings concerned on the basis of their turnovers corresponding to those products.
Therefore, the applicant’s argument in that regard must be rejected.
In so far as concerns the reference year, it is apparent from recitals 481, 482 and 484 of the contested decision that, when
determining the value of worldwide sales, the Commission used the figures for 2001 for the applicant, Fuji, Hitachi and Melco,
while it used 2003, that is the last full year of infringement, as the reference year for the European producers. Similarly,
the calculation of the starting amount of the fines for the applicant, Fuji, Hitachi and Melco for the period of their participation
in the cartel as individual undertakings was made on the basis of their turnovers for 2001, whereas the calculation of the
starting amount of the fines of the European producers was made on the basis of their turnovers for 2003.
Therefore, the Commission did not treat the Japanese producers, including the applicant, and the European producers equally
in terms of its choice of reference year. Consequently, in accordance with the case‑law cited in paragraph 282 above, it needs
to be assessed whether there was an objective justification for that difference in treatment.
In that regard, in recital 482 of the contested decision, the Commission stated that the use of 2001 as the reference year
for the applicant was justified by the fact that, for the most part of the period of infringement, the applicant participated
in the cartel as an individual undertaking, and not through the joint venture TM T & D which took over the applicant’s and
Melco’s GIS activities in 2002.
At the hearing, the Commission stated that its objective was to take account of the uneven competitive position of the two
shareholders of TM T & D at the time the latter was created, due to the fact that Melco held a considerably larger share of
the worldwide GIS market than the applicant. According to the Commission, by referring to the last full year of the applicant’s
and Melco’s participation in the cartel as individual undertakings, that is to say 2001, it was able to reflect that disparity
when calculating the fines, which would not have been possible with the method consisting in dividing TM T & D’s turnover
for 2003 between the two shareholders in accordance with their respective shareholdings in the joint venture.
The objective referred to by the Commission is legitimate since it makes it possible to compare the capacity of the shareholders
of a joint venture to harm competition during the period prior to the creation of the joint venture.
However, it is evident that the Commission could have used other methods to achieve its objective without treating the Japanese
producers and the European producers unequally in its choice of reference year. By way of example, when determining the fines
for the applicant and Melco for the period prior to the creation of TM T & D, the Commission could have taken the starting
amount of TM T & D’s fine, calculated on the basis of its turnover for 2003 and divided it between the applicant and Melco
in accordance with the proportion of GIS sales made by them during the year prior to the creation of the joint venture, namely
2001.
Consequently, it must be found that, in the present case, the Commission’s wish, in calculating the fines, to faithfully reproduce
the relative positions of the applicant and Melco does not justify the unequal treatment of the applicant.
In the light of the foregoing, it must be concluded that, in choosing 2001 as the reference year for the determination of
the value of the worldwide sales of the Japanese producers and for the calculation of the fine imposed on the applicant for
its individual participation in the cartel, the Commission infringed the principle of equal treatment.
That infringement directly invalidates the calculation of the fine imposed on the applicant in Article 2(i) of the contested
decision for its participation in the cartel as an individual undertaking. Indirectly, through the determination of the value
of worldwide sales and market shares, it affects the calculation of the fine imposed on the applicant in Article 2(h) of the
contested decision, relating to the period of TM T & D’s existence.
Therefore, the fourth part of the fourth plea must be upheld and consequently, Article 2(h) and (i) of the contested decision
must be annulled. However, as the content of Article 1 of the contested decision was not affected by the choice of reference
year it is not necessary to annul or amend that article.
In addition, there is no need to examine the fifth and sixth parts of the fourth plea. Even if those parts were upheld, the
contested decision could not be annulled to any further extent than in the preceding paragraph.
Finally, given that the illegality which has been established concerns the choice itself of the basis on which to calculate
the fine imposed on the applicant, the Court is not able to calculate that fine. Consequently, it is not appropriate, in the
present case, for the Court to exercise its unlimited jurisdiction and to amend Article 2(h) and (i) of the contested decision.

Costs
Under Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order
that the costs be shared or that each party bear its own costs.
In so far as the application seeking annulment of Article 1 of the contested decision has been rejected, the applicant has
been unsuccessful in a significant part of its pleadings, even though it has been successful in respect of a part of them.
Accordingly, the applicant must be ordered to bear three quarters of the costs incurred by the parties before the Court and
the Commission ordered to bear a quarter of those costs.
In addition, it is settled case‑law that expenses incurred in providing a bank guarantee in order to avoid the enforcement
of a decision are not expenses incurred for the purpose of the proceedings within the meaning of Article 91(b) of the Rules
of Procedure (see
Cimenteries CBR and Others
v
Commission
, paragraph 92 above, paragraph 5133, and the case‑law cited). Consequently, the application that the Commission be ordered
to bear such costs must be rejected.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.
Annuls Article 2(h) and (i) of Commission Decision C (2006) 6762 final of 24 January 2007 relating to a proceeding under Article
81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear) in so far as it concerns Toshiba
Corp;
2.
Dismisses the action as to the remainder;
3.
Orders Toshiba to bear three quarters of the costs incurred by the parties before the General Court;
4.
Orders the European Commission to bear a quarter of the costs incurred by the parties before the General Court.
Pelikánová
Jürimäe
Soldevila Fragoso
Delivered in open court in Luxembourg on 12 July 2011.
[Signatures]
Table of contents
Background to the dispute
1.  Applicant
2.  Goods
3.  Administrative procedure
4.  Contested decision
Procedure and forms of order sought by the parties
Law
1.  The application seeking annulment of Articles 1 and 2 of the contested decision in so far as they concern the applicant
The third plea, alleging that the Commission infringed the applicant’s rights of defence
The first part of the third plea, alleging that the infringement was insufficiently identified in the operative part of the
contested decision
–  Arguments of the parties
–  Findings of the Court
The second part of the third plea, alleging an infringement of the right of access to the file
–  Arguments of the parties
–  Findings of the Court
The third part of the third plea, alleging a distortion of the evidence in the file
–  Arguments of the parties
–  Findings of the Court
The first plea, alleging that the Commission did not establish the existence of the common understanding to the requisite
legal standard
The evidence furnished by ABB
–  Arguments of the parties
–  Findings of the Court
The corroboration of ABB’s evidence
–  Arguments of the parties
–  Findings of the Court
The notification and project loading mechanism
–  Arguments of the parties
–  Findings of the Court
The evidence allegedly contradicting the existence of the common understanding
–  Arguments of the parties
–  Findings of the Court
Global assessment
The second plea, alleging that the Commission has not established a single and continuous infringement
The first part of the second plea, relating to proof of a single infringement
–  Arguments of the parties
–  Findings of the Court
The second part of the second plea, relating to proof of a continuous infringement and the continuous participation of the
applicant therein
–  Arguments of the parties
–  Findings of the Court
2.  The application seeking the annulment or a substantial reduction of the fine imposed on the applicant
The first part, alleging an error in the assessment of the relative gravity of the applicant’s participation in the infringement
Arguments of the parties
Findings of the Court
The second part of the fourth plea, alleging an error in the assessment of the duration of the infringement
Arguments of the parties
Findings of the Court
The third part of the fourth plea, alleging a failure to state reasons in relation to the calculation of the fine
Arguments of the parties
Findings of the Court
The fourth part of the fourth plea, alleging an error in the calculation of the starting amount
Arguments of the parties
Findings of the Court
Costs
*
Language of the case: English.