CELEX: 62007TJ0132
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
Proof of the infringement
Whether liable for the infringement
Duration of the infringement
Fines
Mitigating circumstances
Cooperation

Background to the dispute
The background to the dispute, as it is revealed essentially in the findings made by the Commission in Commission Decision
C (2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA
Agreement (Case COMP/F/38.899 – Gas Insulated Switchgear) (‘the contested decision’), is as follows.
1.
The goods concerned
Gas insulated switchgear (‘GIS’) is used to control energy flow in electricity grids. It is heavy electrical equipment, used
as a major component for turnkey power sub-stations.
Substations are auxiliary power stations where electrical current is converted. In addition to the transformer, the essential
components of substations are control systems, relays, batteries, chargers and switchgear. The function of switchgear is to
protect the transformer from overload and/or insulate the circuit and the faulty transformer.
Insulation of switchgear may be by gas, air or a hybrid, where air and gas are combined. GIS is sold worldwide as an integral
part of turnkey power substations or as separate equipment which has to be integrated in such substations. GIS represents
approximately 30% to 60% of the total price of such substations.
The contested decision concerns GIS projects involving a voltage from 72.5 kV upwards (‘the GIS projects’), including both
GIS as stand-alone products, with all associated services (transport, erection, testing, insulation, etc.), and turnkey power
substations containing GIS, which comprise therefore the GIS and other parts of the substation, such as transformers and all
associated services (transport, cabling, erection, insulation, etc.).
2.
The undertakings concerned
Fuji Electric Holdings Co. Ltd (‘FEH’), is the holding company of the Fuji group, and presides over four operating subsidiaries,
one of which is Fuji Electric Systems Co. Ltd (‘FES’). The Fuji group manufactures and markets a wide range of products, including
GIS projects. The GIS activities of the Fuji group were carried out by, inter alia, FEH and FES.
On 1 October 2002 the Fuji group transferred its GIS activities to Japan AE Power Systems Corporation (‘JAEPS’), a joint venture
in which Fuji has a 30% shareholding, the rest of the shares in the joint venture being held by Hitachi Ltd and Meidensha
Corporation, with 50% and 20% respectively.
3.
Administrative procedure
On 3 March 2004 ABB Ltd (‘ABB’) informed the Commission of anti-competitive practices in the GIS projects sector and made
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’).
The practices reported by ABB consisted of a worldwide coordination of sales of GIS projects, which involved sharing of markets;
allocation of quotas and maintenance of respective market shares; allocation of GIS projects to designated producers and manipulation
of bidding procedures (bid-rigging) in order to ensure the award of contracts to those producers; price-fixing by means of
complex arrangements for GIS projects which were not allocated; termination of licence agreements with non-cartel members,
and the exchange of sensitive market information.
ABB’s oral application for immunity from fines was supplemented, in particular on 7 May 2004, by oral observations and documentary
evidence. On 25 April 2004 the Commission granted conditional immunity to ABB.
On the basis of ABB’s statements the Commission launched an investigation and carried out inspections on 11 and 12 May 2004
at the premises of various companies in the GIS sector.
Between 14 and 25 May 2004 the Areva group cooperated with the Commission and provided a range of documentary evidence and
information, pursuant to the Leniency Notice.
On 30 July 2004 the group of which VA Technologie AG was the parent company (‘the VA Tech group’) cooperated with the Commission
and provided a range of documentary evidence and information, pursuant to the Leniency Notice.
From 9 September 2004 onwards the representatives of the Hitachi group or JAEPS also cooperated with the Commission and provided
a range of documentary evidence and information, pursuant to the Leniency Notice.
On 4 October 2004 FEH and FES replied to a request for information sent to them by the Commission under Article 18 of Council
Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81[EC]
and 82 [EC] (OJ 2002 L 1, p. 1) (‘the reply of 4 October 2004 to the request for information’). On the same day ABB also replied
to a request from the Commission for information.
On 4 November 2004 Mitsubishi Electric System Corp. (‘Melco’) sent to the Commission an application pursuant to the Leniency
Notice in respect of its ‘account of its involvement in certain arrangements relating to the GIS [projects] market’.
On 5 November 2004 the Areva group sent its reply to a request from the Commission for information.
On 20 April 2006 the Commission adopted a statement of objections which was notified to FEH and FES, and also to ABB, Alstom
SA, Areva SA, Areva T & D AG, Areva T & D Holding SA and Areva T & D SA (together, ‘the Areva group companies), Hitachi and
Hitachi Europe Ltd (together: ‘the Hitachi group companies’), JAEPS, Melco, Nuova Magrini Galileo SpA, Schneider Electric
SA (‘Schneider’), Siemens AG, Toshiba Corp. and five companies in the VA Tech group, including VA Technologie.
On 30 June 2006 FEH and FES sent to the Commission, within the time allowed, their observations in reply to the statement
of objections. As an annex to their reply to the statement of objections, they produced a number of statements or documents
for which they requested confidentiality. Similarly, ABB, Alstom, the Areva group companies, the Hitachi group companies or
JAEPS, Melco, Schneider, Siemens AG Österreich, Siemens and Toshiba replied in writing to the statement of objections within
the time allowed.
By letter of 12 July 2006 FEH and FES cooperated with the Commission and provided a range of documentary evidence and information,
pursuant to the Leniency Notice.
On 14 July 2006 ABB sent to the Commission a ‘Supplement to response to the statement of objections’.
On 18 and 19 July 2006 the Commission held hearings for the companies to which the statement of objections had been addressed.
On 25 August 2006 the Commission made available to the parties to the procedure, for their comments, extracts of the non-confidential
version of reply of FEH and FES to the statement of objections, the request of FEH and FES of 12 July 2006 pursuant to the
Leniency Notice, ABB’s supplementary reply to the statement of objections and additional documents.
On 11 September 2006 FEH and FES submitted their views on ABB’s supplementary reply to the statement of objections.
By letter of 29 September 2006 FEH and FES sent to the Commission a further witness statement from one of their former employees,
Mr M. H.
By letter of 10 November 2006 FEH and FES sent to the Commission their observations on the comments, relating to the management
of JAEPS, which had been sent by the Hitachi group companies or JAEPS to the Commission by letter of 29 September 2006.
By letter of 14 November 2006 the Commission sought additional comments from FEH and FES on a number of pieces of evidence
which they deemed relevant to the final decision. FEH and FES replied by letter dated 21 November 2006.
4.
The contested decision
On 24 January 2007 the Commission adopted the contested decision, a summary of which was published in the Official Journal
of 10 January 2008 (OJ 2008 C 5, p. 7). The decision was notified to FEH and FES on 9 February 2007.
In addition to FEH and FES, the contested decision was addressed to ABB, Alstom, the Areva group companies, the Hitachi group
companies, JAEPS, Melco, Nuova Magrini Galileo, Schneider, Siemens, Siemens AG Österreich, Siemens Transmission & Distribution
Ltd (‘Reyrolle’), Siemens Transmission & Distribution SA, Toshiba and VA Tech Transmission & Distribution GmbH & Co. KEG.
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. The Commission stated that the allocation
of GIS projects was carried out on the basis of a joint ‘Japanese’ quota and a joint ‘European’ quota, which the respective
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 (‘the
common understanding’), under which GIS projects, on the one hand, in Japan and, on the other, in the countries of European
members of the cartel – 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 the operation of the cartel between
the two groups of producers, carried out in particular by their respective secretaries, 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 allocation of GIS projects among 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 allocation of GIS projects in Europe was to follow the same rules and procedures as those governing the allocation 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.
In recital 142 of the contested decision, the Commission stated that, in the GQ Agreement and in the EQ Agreement and for
the purposes of organisation and operation of the cartel, the various members of the cartel were identified by a code, composed
of figures for the European members and letters for the Japanese members. The initial codes were replaced by just numbers
from July 2002.
The Commission found, in Article 1(g) of the contested decision, that FEH had infringed Article 81 EC and Article 53 of the
Agreement on the European Economic Area (‘the EEA Agreement’) by participating in a complex of agreements and concerted practices
in the GIS sector in the EEA from 15 April 1988 until 11 May 2004 and, in Article 1(h) of the contested decision, that FES
had participated in the infringement for the same period. Furthermore, in Article 1(k) of the contested decision, the Commission
found that JAEPS had participated in the same infringement from 1 October 2002 until 11 May 2004.
For the infringements found in Article 1 of the contested decision, FEH and FES were fined, in Article 2(d) of the contested
decision, EUR 2 400 000, for which they were jointly and severally liable, and, in Article 2(f) of the contested decision,
EUR 1 350 000, for which they, JAEPS and Hitachi were jointly and severally liable.

Procedure and forms of order sought
By application lodged at the Court Registry on 19 April 2007 FEH and FES brought the present action. In that document they
stated, in particular, that the application, the annexes to it and the documents lodged at the Registry contained confidential
information, which needed to be treated as confidential vis-à-vis third parties.
Upon hearing the report of the Judge-Rapporteur, the General Court (Second Chamber) decided to open the oral procedure and,
by way of measures of organisation of procedure pursuant to Article 64 of the Rules of Procedure of the General Court, put
written questions to the parties and requested the production of documents. The parties responded within the time allowed.
By letter lodged at the Court’s Registry on 26 January 2010, FEH and FES made certain comments on the Report for the Hearing
which had been sent to them on 11 January 2010, concerning the point of time when they transferred their GIS activities to
JAEPS and when they acquired a holding in JAEPS.
The parties presented oral argument and their replies to the Court’s questions at the hearing on 9 February 2010. FEH and
FES stated in particular that it was not their intention, when commenting on the Report for the Hearing, to bring incidentally
before the Court a plea that the contested decision was vitiated by errors of fact in finding that FES was responsible, as
the parent company of JAEPS, for the participation of JAEPS’s GIS business in the infringement from 1 October 2002 until 30
September 2003. At the hearing, the Court adopted a new measure of organisation of procedure and invited FEH and FES to clarify
the subject-matter of their request in the application for confidentiality (see paragraph 36 above). The observations of FEH
and FES and the abovementioned measure of organisation of procedure were recorded in the minutes of the hearing. By letter
of 23 February 2010 FEH and FES clarified the subject-matter of their request for confidentiality within the period allowed.
The oral procedure was closed on 3 March 2010.
By order of 25 November 2010 the oral procedure was re-opened, and as part of measures of organisation of procedure under
Article 64 of the Rules of Procedure, the Court sent further questions to the parties. The parties were, in particular, invited
to offer their view of the implications which paragraphs 87 to 92 of the judgment in Case C‑407/08 P
Knauf Gips
v
Commission
[2010] ECR I‑0000 had for the present case. The parties replied to the questions put by the Court within the time allowed.
The oral procedure was closed on 10 January 2011.
By letter dated 22 June 2011, with supporting documents, the representative of FEH and FES informed the Court that, as from
1 April 2011, FES had ceased to exist following its merger into FEH, which had itself changed its name and is now Fuji Electric
Co. Ltd (‘the applicant’). By decision of the President of the Second Chamber of the Court of 29 June 2011, that letter was
added to the file, and the Commission was duly informed.
The applicant, formerly named FEH and successor in title to FES, claims that the Court should:
–        annul Article 1(g) of the contested decision in so far as it finds that the infringement imputed to FEH by that provision
continued after September 2000;
–        annul Article 1(h) of the contested decision;
–        annul Article 2(d) of the contested decision, in so far as it imputes joint and several liability upon FES for the fine imposed;
–        annul Article 2(f) of the contested decision, in so far as it imputes joint and several liability upon FEH and FES for the
fine imposed;
–        reduce the amount of the fine imposed on FEH and FES;
–        order the Commission to pay the costs.
The Commission contends that the Court should:
–        dismiss the action as unfounded;
–        order the applicant to pay the costs.

Law
Although FEH and FES brought this action jointly, their interests within the action were not identical and coincided only
in part, as is clear from the paragraphs of the application which summarise the purpose of these proceedings. However, since
1 April 2011, the interests of FEH and FES have come together in the person of the applicant.
In the present case, the applicant claims, in essence, that the Court should annul both Article 1(g) of the contested decision,
in that the Commission holds FEH personally liable for the infringement for the period from September 2000 until 30 September
2002, and Article 2(d) of the contested decision, in that the Commission consequently imposes on FEH a fine of EUR 2 400 000,
for which it is jointly and severally liable with FES. In support of that claim, the first three pleas in law relied on by
the applicant concern, (i) manifest errors of assessment and an infringement of the right to a fair hearing and the principle
of the presumption of innocence, (ii) an infringement of the rules relating to allocation of the burden of proof, and (iii)
an infringement of the principle of equal treatment.
Further, the applicant claims that the Court should annul both Article 1(h) of the contested decision, in that the Commission
holds FES personally liable for the infringement for the period from 15 April 1988 until 11 May 2004, and Article 2(d) and
(f) of the contested decision, in that the Commission consequently imposes on FES a fine of EUR 2 400 000, for which it is
jointly and severally liable with FEH, and a fine of EUR 1 350 000, for which it is jointly and severally liable with FEH,
JAEPS and Hitachi. In support of that claim, the applicant’s fourth plea in law concerns a manifest error of assessment.
The applicant further claims that the Court should annul Article 2(f) of the contested decision in that the Commission relied
on the finding that FEH and FES could be held personally liable for the participation of JAEPS in the infringement for the
period from 1 October 2002 until 11 May 2004, and in that the Commission consequently imposed on them a fine of EUR 1 350 000,
the applicant, JAEPS and Hitachi being jointly and severally liable therefor. In support of that claim, the applicant’s fourth
and fifth pleas in law allege manifest errors of assessment.
The applicant claims, lastly, that the fines imposed on FEH and FES in Article 2(d) and (f) of the contested decision should
be reduced. In support of that claim, the applicant puts forward argument in a sixth plea in law.
1.
The claims for the partial annulment of the contested decision
In support of its claims for the partial annulment of the contested decision, the applicant puts forward five pleas in law.
In the first three pleas the applicant claims, in essence, that Article 1(g) and Article 2(d) of the contested decision should
be annulled, in that the Commission found or relied on the finding that FES infringed Article 81 EC and Article 53 of the
EEA Agreement from September 2000 until 30 September 2002, the date when the Fuji group transferred its GIS activities to
JAEPS. In the first plea, it is claimed that the Commission made manifest errors of assessment and infringed the right to
a fair hearing, the principle of the presumption of innocence and the principle
in dubio pro reo
, by concluding, in the contested decision, that FEH continued to participate in the cartel set up by the GQ Agreement after
the Japanese members’ meeting which took place ‘in or around’ September 2000. In the second plea, it is claimed that the Commission
infringed the rules relating to allocation of the burden of proof. In the third plea it is claimed that the Commission infringed
the principle of equal treatment.
In the fourth plea, the applicant claims that Article 1(h) and Article 2(d) and (f) of the contested decision, in so far as
the Commission holds FES jointly and severally liable for the fines imposed, should be annulled, since those articles are
based on a manifestly incorrect assessment of the facts of the case, to the effect that FES could be held to be personally
liable for the infringement for the period from 15 April 1988 until 11 May 2004.
In the fifth plea, the applicant maintains that Article 2(f) of the contested decision should be annulled, in that it is based
on a manifestly incorrect assessment of the facts of the case, to the effect that, as parent companies of JAEPS, FEH and FES
could be held personally and jointly and severally liable, with Hitachi and JAEPS, for the infringement for the period from
1 October 2002 until 11 May 2004.

Preliminary observations on the undertakings involved in the infringement found in Article 1(g) and (h) of the contested decision
and on the liability incurred, for that reason, by FEH and FES
Before examining the applicant’s first five pleas, it is appropriate to identify the undertakings for whose participation
in the infringement FEH and FES were held to be responsible in Article 1(g) and (h) of the contested decision.
In that regard, it must be recalled that competition law is aimed at ‘undertakings’ and that, in that context, the term ‘undertaking’
must be understood as designating an economic unit for the purpose of the subject-matter of the infringement in question (see,
to that effect, Case 170/83
Hydrotherm Gerätebau
[1984] ECR 2999, paragraph 11; Case T‑234/95
DSG
v
Commission
[2000] ECR II‑2603, paragraph 124, and Case T‑325/01
DaimlerChrysler
v
Commission
[2005] ECR II‑3319, paragraph 85). In prohibiting undertakings from, inter alia, entering into agreements or participating
in concerted practices which may affect trade between Member States and have as their object or effect the prevention, restriction
or distortion of competition within the common market, Article 81(1) EC is aimed at economic units which consist of a unitary
organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis and
can contribute to the commission of an infringement of the kind referred to in that provision (see, to that effect, Case T‑6/89
Enichem Anic
v
Commission
[1991] ECR II‑1623, paragraph 235, and Case T‑11/89
Shell
v
Commission
[1992] ECR II‑757, paragraph 311).
In order to be applied and enforced, decisions taken pursuant to Article 81 EC must, however, be addressed to entities possessing
legal personality (see, to that effect, Joined Cases T‑305/94 to 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 978, and Case T‑112/05
Akzo Nobel and Others
v
Commission
[2007] ECR II‑5049, paragraph 59). Thus, when the Commission adopts a decision pursuant to Article 81(1) EC, it must identify
the natural or legal person or persons who can be held responsible for the conduct of the relevant undertaking and can be
penalised for that conduct, and the decision will be addressed to them (see, to that effect,
Hydrotherm Gerätebau
, paragraph 56 above, paragraph 11).
In accordance with the principle of personal liability (Case 48/69
ICI
v
Commission
[1972] ECR 619, paragraphs 131 to 141; Case C‑49/92 P
Commission
v
Anic Partecipazioni
[1999] ECR I‑4125, paragraph 78, and Case C‑280/06
ETI and Others
[2007] ECR I‑10893, paragraph 39; see also the Opinion of Advocate General Kokott in said Case C‑280/06
ETI and Others
point 71 et seq.), under which a person can be held liable only for his own acts (Opinion of Advocate General Cosmas in said
Case C‑49/92 P
Commission
v
Anic Partecipazioni
[1997], point 74), it falls, in principle, to the person managing the undertaking when the infringement was committed to answer
for that infringement, even if, at the date of the decision finding the infringement, that undertaking is the responsibility
or under the management of a different person (Case C‑297/98 P
SCA Holding
v
Commission
[2000] ECR I‑10101, paragraph 27, and Case C‑286/98 P
Stora Kopparbergs Bergslags
v
Commission
[2000] ECR I‑9925, paragraph 37; see, also, to that effect, Case C‑279/98 P
Cascades
v
Commission
[2000] ECR I‑9693, paragraph 79).
According to the case-law, where a number of persons may be held personally liable for the participation of one and the same
undertaking, for the purposes of competition law, in an infringement, they must be considered to be jointly and severally
liable for that infringement (see, to that effect, Joined Cases 6/73 and 7/73
Istituto Chemicoterapico Italiano and Commercial Solvents
v
Commission
[1974] ECR 223, paragraph 41; Case C‑294/98 P
Metsä-Serla and Others
v
Commission
[2000] ECR I‑10065, paragraphs 33 and 34; Case T‑9/99
HFB and Others
v
Commission
[2002] ECR II‑1487, paragraphs 54, 524 and 525; the judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and
T‑91/03
Tokai Carbon and Others
v
Commission
, not published in the ECR, paragraph 62, and
Akzo Nobel and Others
v
Commission
, paragraph 57 above, paragraphs 57 to 62). It is, moreover, apparent from those judgments that the person who had direct
responsibility for or managed the undertaking at the time the infringement was committed, or the person who, by reason of
actually exercising control over the undertaking and determining its conduct on the market, indirectly managed that undertaking
at the time when the infringement was committed, may be held personally liable and jointly and severally liable for the participation
of one and the same undertaking in an infringement (see also, to that effect, Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P
Papierfabrik August Koehler and Others
v
Commission
[2009] ECR I‑7191, paragraphs 40, 43 and 44). It follows that the case-law cited in paragraph 58 must be understood as covering
the personal liability of both the person directly managing the undertaking at the time when the infringement was committed
and the person who, at the same time, indirectly managed that undertaking.
The case-law referred to in paragraphs 56 to 59 above is applicable, by analogy, to Article 53 of the EEA Agreement and to
decisions of the Commission adopted pursuant to that article.
It is clear from the contested decision and, in particular, the description made, in recitals 5 to 87, of the ‘industry subject
to the proceeding’ and, in recitals 28 to 44 and 482, of the ‘undertakings subject to the proceedings’ or of the ‘differential
treatment’ accorded to those undertakings that the Commission identified, among the undertakings found to have participated
in the infringement in Article 1 of the contested decision, (i) the unitary organisation of personal, tangible and intangible
elements which operated the Fuji group’s GIS business in the period from 15 April 1988 until 30 September 2002 (‘the first
undertaking concerned’) and (ii) the unitary organisation of personal, tangible and intangible elements which operated the
GIS businesses of the Fuji group, Hitachi and Meidensha – which were transferred to JAEPS – in the period from 1 October 2002
until 11 May 2004 (‘the second undertaking concerned’).
It is clear moreover from recital 379 of the contested decision that FEH and FES were held to be personally and jointly and
severally liable for the participation of the first undertaking concerned in the infringement from 15 April 1988 until 30
September 2002. It follows from recitals 32, 33 and 373 of the contested decision that the liability thereby incurred by FEH
and FES stems from the fact that they ‘presided over’ or managed ‘inter alia’ the first undertaking concerned in that period
and that they were therefore directly involved in that undertaking’s participation in the infringement.
Further, it is clear from recital 380 of the contested decision that FEH and FES were held to be personally and jointly and
severally liable, with Hitachi and JAEPS, for the participation of the second undertaking concerned in the infringement in
the period from 1 October 2002 until 11 May 2004. Moreover, it follows, in particular, from recitals 380, 385 and 402 of the
contested decision that the liability thereby incurred by FEH and FES stems solely from the fact that they had, with Hitachi,
determined the conduct on the market of JAEPS, their joint subsidiary which was directly in charge of the second undertaking
concerned, and that they were therefore indirectly involved in that undertaking’s participation in the infringement, as the
parent companies of JAEPS.
The applicant’s first five pleas must be examined in the light of the foregoing considerations. In the interests of expediency
and procedural economy, it is appropriate to examine together the first two pleas: manifest errors of assessment, an infringement
of the right to a fair hearing, the principle of the presumption of innocence and the principle
in dubio pro reo
, and an infringement of the rules relating to allocation of the burden of proof.

The first and second pleas: manifest errors of assessment, an infringement of the right to a fair hearing, the principle of
the presumption of innocence and the principle in dubio pro reo, and an infringement of the rules relating to allocation of
the burden of proof
Arguments of the parties
By the first and second pleas the applicant complains, in essence, that the Commission made a number of manifest errors of
assessment and infringed the rules relating to the allocation of the burden of proof, in that, in Article 1(g) of the contested
decision, the Commission held FEH to be personally liable for the participation of the first undertaking concerned in the
infringement for the period dating from the Japanese members’ meeting which took place ‘in or around’ September 2000 until
30 September 2002, the date when the Fuji group transferred its GIS activities to JAEPS, and in that, in Article 2(d) of the
contested decision, the Commission consequently imposed on FEH a fine of EUR 2 400 000, jointly and severally with FES. The
Commission did not discharge its burden of proving to the requisite legal standard that the first undertaking concerned had
continued to participate in the ‘GQ Agreement cartel’, which for its part continued after the Japanese members’ meeting which
took place ‘in or around’ September 2000. Further, the applicant claims that the Commission’s reasoning is, in that regard,
vitiated by a number of manifest errors of assessment of evidence.
The Commission contests the applicant’s arguments and contends that the first and second pleas should be rejected.
Findings of the Court
Before analysing the substance of the first and second pleas, it is important to identify the exact point of dispute which
underlies those pleas and the recitals of the contested decision in dispute and to recall the rules applicable to proof of
an infringement of Article 81 EC and Article 53 of the EEA Agreement and to proof of an undertaking’s participation in such
an infringement.
–       The exact point of dispute underlying the first and second pleas
In the present case, the applicant does not dispute either the participation of the first undertaking concerned in the infringement
from 15 April 1988 until September 2000 or the liability incurred personally by FEH because of that participation. Moreover,
the applicant does not dispute that FEH, with other companies, managed the first undertaking concerned from September 2000
until 30 September 2002.
Furthermore, while the applicant is careful to distinguish ‘the GQ Agreement cartel’, which ended following the departure
of Siemens and Hitachi, from the ‘New Scheme cartel’ which commenced in the middle of 2002, the applicant does not develop
specific pleas or arguments to counter the Commission’s findings, in recitals 2, 3, 248, and 270 to 299 of the contested decision,
that the various successive agreements and concerted practices in the period from 15 April 1988 until 11 May 2004 were no
more than various manifestations of a single and common plan. Consequently, it cannot be held that the applicant has, in the
first and second pleas, validly called into question those findings and, therefore, validly disputed the fact that the infringement
was single and continuous.
Lastly, the applicant does not dispute that the second undertaking concerned participated in the infringement from 1 October
2002 until 11 May 2004. The applicant disputes only that FEH could have incurred any liability and, as a result, be fined
on that basis, since FEH did not determine JAEPS’s conduct on the market and, consequently, was not involved, as the parent
company of JAEPS, in the participation of the second undertaking concerned in the infringement (see paragraph 173 et seq.,
below).
On the other hand, the applicant complains that the Commission assessed incorrectly the evidence submitted to it and infringed
the right to a fair hearing, the principle of the presumption of innocence and the principle
in dubio pro reo
, and infringed the rules relating to the allocation of the burden of proof, by holding that the infringement found in Article
1 of the contested decision continued from September 2000 until 30 September 2002, that the first undertaking concerned continued
to participate in it and that FEH could be held personally liable for that participation because of the control it exercised
over that undertaking when the infringement was committed. According to the applicant, the Commission failed to discharge
its burden to provide in the contested decision proof, to the requisite legal standard and without manifest errors of assessment
of evidence, that the first undertaking concerned had continued to participate, under FEH’s management, in the infringement
found in Article 1 of the contested decision, that infringement as such having continued from 1 October 2002 to 11 May 2004.
The Commission maintains that, in the circumstances of this case, it was for the companies in the Fuji group to establish
that the first undertaking concerned had ended its participation in the infringement during the period at issue.
In the light of the parties’ arguments, the Court must assess whether in the contested decision the Commission established
to the requisite legal standard that the infringement continued, with the participation of the first undertaking concerned,
from September 2000 until 30 September 2002.
–       The recitals of the contested decision disputed by the underlying argument of the first and second pleas
The Commission’s findings in respect of (i) the continuation of the infringement found in Article 1 of the contested decision
from September 2000 until 30 September 2002 and (ii) the participation of first undertaking concerned in that infringement
during that period are as follows.
In recital 323 of the contested decision the Commission concluded that the agreements and/or concerted practices between the
producers of GIS had lasted at least from 15 April 1988 until 11 May 2004. The reference in that recital to the year ‘1998’,
instead of the year ‘1988’, is clearly the result of mere clerical error, which should be corrected.
In recitals 324, 326 and 373 of the contested decision the Commission stated that FEH and FES had participated in the infringement
from 15 April 1988, the date of adoption and entry into force of the GQ and EQ agreements, until 11 May 2004, the date of
the cartel’s last working meeting, which was abruptly interrupted by the Commission inspections. The reference in recital
324 of the contested decision to the year ‘1998’, instead of the year ‘1988’, is clearly the result of mere clerical error,
which should be corrected.
In recitals 177 to 216 of the contested decision, the Commission presented a ‘chronological overview of the evolution of the
cartel’. In that context, the Commission made the following findings, in recitals 178 and 179 of the contested decision:
‘(178) Siemens discontinued its participation in the cartel meetings in September 1999, followed by Hitachi and Schneider/VA Tech
in 2000. Siemens’s absence was particularly destabilising from the European perspective, since it had been the E‑Secretary
since 1988 and it was a major market player both outside and inside Europe. However, the cartel activities continued and Alstom
took over as E‑Secretary. With fewer members as compared with 1988, the logistics were simplified, and a complex structure
was no longer justified.
(179) In 2002, Siemens, Hitachi and VA Tech returned to the cartel. …’.
In recitals 270 to 299 of the contested decision, the Commission stated why it considered that ‘the complex arrangements in
this case present[ed] the characteristics of a single and continuous infringement’. In recital 279 of the contested decision,
the Commission stated in particular that ‘[s]ome cartel members have argued that the evolution of the cartel made it change
its nature as from 2002, and two infringements should be distinguished accordingly, rather than a single and continuous one’.
However, in recitals 279 to 299 of the contested decision, the Commission set out the factors which, in its opinion, proved
that the various successive agreements and concerted practices between 15 April 1988 and 11 May 2004 were only various manifestations
of a single and common plan and the Commission stated that it would have been artificial to split up such continuous conduct,
characterised by a single aim, into several separate infringements.
In recital 284 of the contested decision, the Commission stated the following:
‘ABB has submitted an explanation for the practices described coherent with the facts and the documents in the file, including
the written agreements. The submissions made by those undertakings arguing that there were two successive infringements diverge
considerably as to the end date of the first one (see recital 290 below). The contradicting submissions are also at variance
with the documentary evidence obtained from the inspections. A closer analysis reveals that the contradicting submissions
constitute simple statements (none of them contemporaneous with the facts) unsupported by any contemporaneous or otherwise
compelling evidence showing that the GIS [projects] cartel would have ended on any of the various dates suggested. They do
not constitute factual evidence, but assessments of the facts proposed by the parties or inferences by witnesses in documents
written at the request of the attorneys for the purpose of the companies’ defence in this procedure. Parties tend to allege
dates on which they consider that the cartel worked less efficiently as dates where the cartel should be deemed as ended
de facto
.’
Recital 290 of the contested decision further states:
‘The Commission cannot rely on the submissions by [the] Areva [group of companies], Melco, [the] Hitachi [group of companies]
or JAEPS and Toshiba as regards their respective claims that the cartel would have ended for the first time in 1997 ([the]
Areva [group of companies [in their leniency submission, see paragraph 12 above]), or in September 1999 (Melco [in its reply
to the statement of objections] and Toshiba [in its reply to the statement of objections]), or in 1999 after the departure
of Siemens (the Hitachi [group of companies][or] JAEPS [in their reply to the statement of objections]), or around September
2000 ([FEH and FES in their reply to the statement of objections]). They are not reliable on that point, because they contradict
each other and, as already mentioned, they are at odds with the evidence in the file. Melco, Toshiba, Fuji, ABB, Alstom, Reyrolle/VA Tech
and Magrini/Schneider (both became later VAS and hence VA Tech) continued to take part in multilateral meetings and contacts
in 2000 and/or 2001 (see recitals 191 to 198 above). Furthermore, they are ambiguous and inconclusive.’
In recitals 191 to 198 of the contested decision, the Commission set out the evidence, produced by ABB or the Fuji group companies,
which demonstrated, in its opinion, that the cartel had continued after the departures of Siemens in September 1999 and then
Hitachi and ‘Schneider/VA Tech’ in 2000, and before their gradual return after March 2002. First, the Commission referred,
in recitals 191 to 196 of the contested decision, to documents sent by ABB in its immunity application (see paragraph 8 above),
consisting of a series of fax messages exchanged, between 18 December 2000 and 22 January 2001, by ABB, Melco and Alstom on
the subject of meetings and allocations of GIS projects. Next, in recital 197 of the contested decision, the Commission referred
to a document sent by ABB in its immunity application containing a list of ‘committee meetings’ covering part of the years
2000-2001 and dated 12 May 2000. The Commission stated that it was clear from that list that the participants at those meetings
were Reyrolle, Alstom, Schneider, ABB, Melco and Toshiba, but not Siemens and ‘JAEPS (Hitachi)’, which was consistent with
ABB’s statement, in its reply of 4 October 2004 to a request from the Commission for information (see paragraph 15 above):
‘that the latter two undertakings did not take part in the cartel at that stage’. Lastly, in recital 198 of the contested
decision, the Commission relied on a set of documents, provided by FEH and FES in their application pursuant to the Leniency
Notice and by ABB in a supplement of 7 May 2004 to its immunity application (see paragraph 10 above), recording agreements
entered into by the cartel members on eight GIS projects bearing, within the cartel, the reference numbers [
confidential
] (
), which demonstrated that the cartel had been active during that period.
The Commission also found, in recital 372 et seq. of the contested decision, that the first undertaking concerned had continued
to participate in the cartel after the Japanese members’ meeting which took place ‘in or around’ September 2000. In that regard,
the contested decision reads as follows:
‘(372) Two periods must be distinguished in the attribution of liability to the relevant legal entities within [the] Fuji [group]:
before and after the transfer of Fuji’s GIS activities to JAEPS on 1 October 2002.
(373) [FEH] and [FES] have participated in the collusive behaviour described in this Decision from at least 15 April 1988 (date
on which Fuji entered into the GQ Agreement) until 30 September 2002. (Fuji’s GIS activities were transferred to JAEPS on
1 October 2002). [FEH] is the 100% owner of [FES] ….
Arguments by Fuji
(374) Fuji admits having participated in the cartel described in the Statement of Objections between 1988 and September 2000, but
not thereafter. Fuji’s participation in the cartel would have ended “at the latest in or around September 2000. Fuji did not
participate in the new scheme at any time” on the grounds that Fuji would not have participated in joint meetings with European
suppliers and that it would not have continued to exchange information either.
(375) Fuji argues that, although some of the arrangement sheets provided by [it] (see recital 198) “are expressed to be valid beyond
this date (September 2000), Fuji would not have been able to act upon these arrangements after September 2000, since all the
‘Tender Due Dates expired several months before’. Furthermore, Fuji understood that the arrangements previously made in connection
to the GQ Agreement no longer had any binding force between the cartel participants; Fuji did not win any of the tenders listed
and so it did not profit from any of the arrangements”.
The Commission’s assessment
(376) Since Fuji was not a member of the E/J Committee, it was not expected to meet with European producers either at management
or at working level, but only at Annual Meetings. Furthermore, annual meetings were not essential for the practical implementation
of the cartel, as implicitly confirmed by Fuji’s admission of having participated in the cartel also in 2000 (when no annual
meeting took place).
(377) Fuji’s claim that it would have left the cartel around September 2000 has not been supported by any of the other parties to
the proceedings, despite the fact that it was part of the information submitted for their comments. Fuji’s contention is also
unclear, since it sometimes claims that it [the departure from the cartel] happened “in or around September 2000” and other
times it claims in the same document that it was “at the latest in September 2000”. Fuji also states that “the latest arrangement
sheet received by [Mr Oz.] was dated 28 September 2000” and that “Fuji did not conduct any further GQ Agreement cartel communications
after that date”. This means that Fuji was supposed to present an “arranged” bid to a client to create the impression that
there was competition for the project, but it does not provide any evidence of having dropped the project or having bid for
it in competitive terms. In addition to this, Mr [I.H.]’s statement says that Fuji left the cartel “soon after Siemens”, but
it has been established that Siemens left in September 1999. The claim is further not supported by any indication or evidence
in the file that they would have publicly distanced themselves from the cartel in September 2000.
(378) Finally, even if the Commission were to admit that there were no other cartel exchanges with Fuji until the creation of JAEPS,
the Commission must take into account that the information already exchanged could not be disregarded by Fuji in its commercial
activities and that the arrangements already agreed upon were still in force. According to the evidence in the file, and in
particular the information provided by Fuji, it was a party to some arrangements listed in recital 198 above, which had a
validity date extending beyond September 2000 and non-compliance with which was subject to penalties. Despite the fact that
the Commission granted Fuji the possibility to comment and provide further evidence to contest these conclusions, it [Fuji]
has not provided any evidence showing that it withdrew from the arrangements, that it actually contested them, or did not
respect them. On the contrary, the fact that all “Tender Due Dates expired several months before”, as Fuji argues, only adds
to the conclusion that the arrangements were already adopted and in force, and the fact that Fuji would not have finally won
the tenders (which is also argued without supporting evidence) does not detract from the aforementioned conclusions. First,
Fuji was a participant in all the arrangements listed, but not their organiser or, necessarily, their beneficiary. Its appearance
in the list meant that it should submit the bids, not that it was the nominated winner. Second, even if it had been the designated
winner by the cartel members (which Fuji has not argued or proved), that would still not be a total guarantee that the bid
would have been ultimately won, since other bidders outside the cartel could have been more successful.
(379) For the reasons explained above and in recitals 334 and 373, [FEH] and [FES] should be held jointly and severally liable for
Fuji’s involvement in the infringement between 15 April 1988 and 30 September 2002.’
–       The rules applicable to proving an infringement of Article 81 EC and Article 53 of the EEA Agreement and proving an undertaking’s
participation in such an infringement
Since the parties disagree on the question of which party should bear the burden of proof and, more generally, on whether
or not, in this case, there has been compliance with the rules applicable to proving an infringement of Article 81 EC and
Article 53 of the EEA Agreement and proving an undertaking’s participation in such an infringement, it is appropriate, first,
to recall the relevant law.
According to settled case-law on the burden of proof, it is for the party or the authority alleging an infringement of the
competition rules to prove its existence by establishing, to the requisite legal standard, the facts constituting an infringement,
and it is for the undertaking invoking the benefit of a defence against a finding of an infringement to demonstrate that the
conditions for applying such defence are satisfied, so that the authority will then have to resort to other evidence (Case
T‑120/04
Peróxidos Orgánicos
v
Commission
[2006] ECR II‑4441, paragraph 50; see also, to that effect, Case C‑185/95 P
Baustahlgewebe
v
Commission
[1998] ECR I‑8417, paragraph 58, and 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 78). The duration of the infringement is an intrinsic element of an infringement under Article
81(1) EC, the burden of proof of which is borne principally by the Commission (Case T‑43/92
Dunlop Slazenger
v
Commission
[1994] ECR II‑441, paragraph 79 and
Peróxidos Orgánicos
v
Commission
, paragraph 51).
That apportionment of the burden of proof may vary, however, inasmuch as the evidence on which a party relies may be of such
a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude
that the burden of proof has been discharged (see, to that effect,
Aalborg Portland and Others
v
Commission
, paragraph 84 above, paragraph 79, and
Peróxidos Orgánicos
v
Commission
, paragraph 84 above, paragraph 53).
As regards the evidence which the Commission can rely on, the principle which prevails in competition law is that of the unfettered
evaluation of evidence (Case C‑407/04 P
Dalmine
v
Commission
[2007] ECR I‑829, paragraph 63; 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 273). Since the prohibition on participating in anti‑competitive agreements and the penalties
which offenders may incur are well known, it is normal for the activities entailed by those practices and those agreements
to take place clandestinely, for meetings to be held in secret, most frequently in a non-member country, and for the associated
documentation to be reduced to a minimum. Even if the Commission discovers evidence explicitly showing unlawful contact between
traders, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary
to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or
agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another
plausible explanation, constitute evidence of an infringement of the competition rules (
Aalborg Portland and Others
v
Commission
, paragraph 84 above, paragraphs 55 to 57). Such indicia and coincidences may reveal not just the existence of anti-competitive
practices or agreements, but also the duration of a continuous anti-competitive practice or the period of application of an
agreement concluded in breach of competition law (Case C‑113/04 P
Technische Unie
v
Commission
[2006] ECR I‑8831, paragraph 166).
In any event, the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that
the alleged infringement took place (see, to that effect, Case T‑62/98
Volkswagen
v
Commission
[2000] ECR II‑2707, paragraphs 43 and 72 and case-law cited;
JFE Engineering
v
Commission
, paragraph 86 above, paragraph 179, and case-law cited, and Case T‑38/02
Groupe Danone
v
Commission
[2005] ECR II‑4407, paragraph 217). However, 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 (
JFE Engineering
v
Commission
, paragraph 86 above, paragraph 180, and
Groupe Danone
v
Commission
, paragraph 218; see also, to that effect, ‘
PVC II
’, paragraph 57 above, paragraphs 768 to 778 and, in particular, paragraph 777). As regards the duration of the infringement,
according to the case-law, if there is no evidence directly establishing the duration of an infringement, the Commission should
adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement
continued uninterruptedly between two specific dates (
Technische Unie
v
Commission
, paragraph 86 above, paragraph 169;
Dunlop Slazenger
v
Commission
, paragraph 84 above, paragraph 79, and
Peróxidos Orgánicos
v
Commission
, paragraph 84 above, paragraph 51).
As regards the probative value to be accorded to various pieces of evidence, it must be emphasised that the only relevant
criterion for the purpose of assessing the evidence adduced relates to its reliability (
Dalmine
v
Commission
, paragraph 86 above, paragraph 63; see Case T‑44/00
Mannesmannröhren-Werke
v
Commission
[2004] ECR II‑2223, paragraph 84 and case-law cited, and
JFE Engineering and Others
v
Commission
, paragraph 86 above, paragraph 273). According to the general rules of evidence, the reliability and therefore the probative
value of a document depends on the person from whom the document originates, the circumstances in which it came into being,
the person to whom it was addressed and its content (Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95,
T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95
Cimenteries CBR and Others
v
Commission
[2000] ECR II‑491, paragraph 1053; Opinion of Judge Vesterdorf acting as Advocate General in Case T‑1/89
Rhône-Poulenc
v
Commission
[1991] ECR II‑867, II‑869, at II‑956). It is necessary, in particular, to attach great importance to the fact that documents
were drawn up in close connection with the events (Case T‑157/94
Ensidesa
v
Commission
[1999] ECR II‑707, paragraph 312), or by a direct witness of those events (see, to that effect,
JFE Engineering
v
Commission
, paragraph 86 above, paragraph 207). Documents from which it is evident that contacts took place between a number of undertakings
and that they in fact pursued the aim of removing in advance any uncertainty as to the future conduct of their competitors
demonstrate, to the requisite legal standard, the existence of a concerted practice (see, to that effect, Joined Cases 40/73
to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73
Suiker Unie and Others
v
Commission
[1975] ECR 1663, paragraphs 175 and 179). Further, statements which run counter to the interests of the declarant must in
principle be regarded as particularly reliable evidence (see, to that effect,
JFE Engineering
v
Commission
, paragraph 86 above, paragraphs 207, 211 and 212).
Lastly, it must be borne in mind that the role of a court hearing an application for annulment brought under Article 230 EC
(now Article 263 TFEU) against a Commission decision finding an infringement of the competition rules and imposing fines on
the addressees is to assess whether the evidence and other information relied on by the Commission in its decision are sufficient
to establish the existence of the alleged infringement (
JFE Engineering
v
Commission
, paragraph 86 above, paragraphs 174 and 175; see also, to that effect, ‘
PVC II
’, paragraph 57 above, paragraph 891). Where there is doubt, the benefit of that doubt must be given to the parties to whom
the decision is addressed, and consequently the court cannot conclude that the Commission has established the infringement
at issue to the requisite legal standard if it still entertains doubts on that point (
JFE Engineering
v
Commission,
paragraph 86 above, paragraph 177, and
Groupe Danone
v
Commission
, paragraph 87 above, paragraph 215). 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 Convention for the Protection of Human Rights and Fundamental
Freedoms, signed at Rome on 4 November 1950 (‘ECHR’), which is one of the fundamental rights which, according to the case-law
of the Court of Justice, and as reaffirmed in the preamble to the Single European Act, by Article 6(2) of the Treaty on European
Union and by Article 47 of the Charter of Fundamental Rights of the European Union proclaimed on 7 December 2000 in Nice (OJ
2000 C 364, p. 1), are protected in the legal order of the European Union. Given the nature of the infringements in question
and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular
to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition
of fines or periodic penalty payments (Case C‑199/92 P
Hüls
v
Commission
[1999] ECR I‑4287, paragraphs 149 and 150; Case C‑235/92 P
Montecatini
v
Commission
[1999] ECR I‑4539, paragraphs 175 and 176, and
Groupe Danone
v
Commission
, paragraph 87 above, paragraph 216).
The existence of an infringement must be assessed by reference solely to the evidence gathered by the Commission in the decision
finding that infringement and the only relevant question is therefore to ascertain, on the merits, whether or not the infringement
has been proved by that evidence (
Cimenteries CBR and Others
v
Commission
, paragraph 88 above, paragraph 726).
The case-law cited above is applicable, by analogy, to Article 53 of the EEA Agreement and to decisions of the Commission
adopted pursuant to that article.
In the light of the rules set out in paragraphs 84 to 91 above the Court must determine whether the Commission assembled evidence
in the contested decision which is sufficiently reliable, precise and consistent to support, within a global assessment and
after consideration of alternative explanations or justificatory arguments offered by the applicant, the firm conviction that
the infringement found in Article 1 of the contested decision continued, with the participation of the first undertaking concerned,
from September 2000 until 30 September 2002, and that FEH could be held personally liable for the infringement because of
the management which it exercised over that undertaking when the infringement was committed.
–       Analysis of the evidence relied on in the contested decision
First, it is useful to recall the essential facts on which the Commission based its assessment in the contested decision that
the infringement found in Article 1 of the contested decision continued, with the participation of the first undertaking concerned,
from September 2000 until 30 September 2002.
In recital 290 of the contested decision the Commission stated that it was disregarding the submissions by FEH and FES, the
Areva group companies, Melco, the Hitachi group companies or JAEPS and Toshiba – to the effect that the cartel ended for the
first time either sometime in 1997, or in September 1999 or sometime in 1999, after Siemens’ departure, or in or around September
2000 – on the ground that those submissions were not reliable or, further, that they were ambiguous and inconclusive, because
they contradicted each other and were at odds with the evidence in the file (see paragraph 80 above). The Commission noted,
again in recital 290 of the contested decision, read together with recitals 191 to 198, that the first undertaking concerned
and other undertakings had continued to take part in multilateral meetings in 2000 and/or 2001. The factors on which the Commission
relies in order to show that the cartel continued to operate – with the participation of the first undertaking concerned –
after the departure of ‘Schneider/VA Tech’ on 13 December 2000 are those referred to in paragraph 81 above.
As regards, first, the fax messages exchanged by certain cartel members between 18 December 2000 and 22 January 2001, on the
subject of meetings and allocating GIS projects, it must be observed that, as is accepted by the Commission, the undertakings
involved in those exchanges are solely Alstom (subsequently Areva), Melco and ABB. Accordingly, as the applicant correctly
argues, while that exchange, dating from the material time, is credible and precise evidence of the activities of the cartel
around December 2000 and January 2001, it does not, on the other hand, provide any indication that the first undertaking concerned
itself participated.
Next, in relation to the list of 12 May 2000, that indeed is a record of thirteen ‘committee meetings’ scheduled between 18
May 2000 and 17 May 2001. The anti-competitive purpose of those ‘committee meetings’ can be deduced from the fact that the
list designates each of the undertakings concerned by means of the code ascribed to it as a cartel member, as reproduced in
recitals 142 and 197 of the contested decision, and the fact that, as was confirmed by several cartel members, some meetings
of bodies – the joint Europe/Japan committee and the Europe committee – which took part in the operational functioning of
the cartel were planned, as is also clear from recitals 150 and 151 of the contested decision. Further, since the fact that
six of those committee meetings actually took place is either confirmed by some cartel members or proved by other material
in the file, such as notes of travelling expenses or annotations in personal agendas, the activities of the cartel in the
period from 18 May 2000 to 18 January 2001 can be considered to be established. However, as the Commission acknowledges, the
undertakings which took part in those meetings are only Reyrolle, Alstom, Schneider, ABB, Melco and Toshiba. It follows that,
as the applicant correctly argues, while that list is credible and precise evidence of the activities of the cartel between
18 May 2000 and 17 May 2001, it does not, on the other hand, provide any indication that the first undertaking concerned itself
participated.
Lastly, as regards the documents which were drawn up concerning events of the same period, relating to eight GIS projects
with the reference numbers [
confidential
], those are a record of agreements entered into by the cartel members, with the aim of allocating the abovementioned GIS
projects, which differ in their periods of validity. Those documents indicate that the first undertaking concerned participated,
with other cartel members, in arrangements for the allocation of eight GIS projects, which were organised by other undertakings
participating in the cartel, and which were agreed or entered into force between [
confidential
] and [
confidential
] and which were valid for around [
confidential
] after the date of signature, in other words, as regards the last project, with the reference number [
confidential
], until [
confidential
].
In that regard, it must be recalled that in order for there to be an agreement within the meaning of Article 81(1) EC, it
is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market
in a specific way (Case T‑2/89
Petrofina
v
Commission
[1991] ECR II‑1087, paragraph 211, and Case T‑13/89
ICI
v
Commission
[1992] ECR II‑1021, paragraph 253; see, also to that effect, Case 41/69
ACF Chemiefarma
v
Commission
[1970] ECR 661, paragraph 112). Further, Article 81 EC is applicable where a cartel has continued to produce effects, although
it has formally ceased to be in force (see, to that effect, Case T‑13/89
ICI
v
Commission
, paragraph 254, and Case T‑48/98
Acerinox
v
Commission
[2001] ECR II‑3859, paragraph 63). The cited case-law is applicable, by analogy, to Article 53 of the EEA Agreement.
In this case, the applicant has not disputed that FEH complied with the cartel rules by entering into agreements for the allocation,
within the cartel, of eight GIS projects with reference numbers [
confidential
]. Further, the applicant has not disputed that the terms of those agreements show that they were intended to produce their
effects between [
confidential
], the date when the agreement on the project with reference number [
confidential
] entered into force, and [
confidential
], the date when the validity of the agreement on the project with reference number [
confidential
] ended.
Moreover, there is nothing in the file to suggest that the first undertaking concerned publicly distanced itself from the
cartel and the agreements entered into within the cartel. An undertaking which does not publicly distance itself from the
results of a meeting which it has attended or an agreement to which it has been a party remains, as a general rule, wholly
liable for its participation in the cartel. It would be too easy for undertakings to reduce the risk of being required to
pay a heavy fine if they were able to take advantage of an unlawful agreement and then benefit from a reduction in the fine
on the ground that they had played only a limited role in implementing the infringement, when their attitude encouraged other
undertakings to act in a way that was more harmful to competition (see, to that effect,
Mannesmannröhren-Werke
v
Commission
, paragraph 88 above, paragraph 278 and case-law cited). It follows that, even if the first undertaking concerned did not
comply with all of the agreements entered into within the cartel, that fact is not enough, without evidence that it publicly
distanced itself from the other cartel members, to exempt it from the liability it incurs as a consequence of its participation
in those agreements and, through those agreements, in the infringement found in Article 1 of the contested decision.
Consequently, it must be held that the fax messages exchanged by some cartel members between 18 December 2000 and 22 January
2001, the list of ‘committee meetings’ dated 12 May 2000 and the documents relating to eight GIS projects, detailed in recitals
191 to 198 of the contested decision, as referred to in recital 290, are reliable, precise and consistent evidence that the
infringement found in Article 1 of the contested decision continued from September 2000 until 30 September 2002. Further,
having regard to the particularly long duration of the infringement found in Article 1 of the contested decision, the existence
of that infringement for the period from 15 April 1988 until September 2000 not being disputed by the applicant, and the elaborate
precautions taken by the cartel members in order to disguise or conceal their existence, as described in recital 170 of the
contested decision, it can be held that that evidence relates to events sufficiently proximate in time, within the meaning
of the case-law cited in paragraph 87 above, for it to be reasonable to accept that that infringement continued uninterruptedly
throughout that period.
Furthermore, the evidence on which the contested decision is based in that regard is sufficiently reliable, precise and consistent.
It cannot be rebutted by submissions of FEH and FES, in their letter to the Commission dated 21 November 2006 and in their
reply to the statement of objections (see paragraphs 19 and 27 above), nor by the submissions of Melco, the Hitachi group
companies or JAEPS and the VA Tech group, in their applications pursuant to the Leniency Notice (see paragraphs 13, 14 and
16 above), to the effect that the cartel had ended, for the first time, prior to the period between September 2000 and 30
September 2002. Those submissions that the cartel had ended earlier are not supported by reliable and precise evidence. Moreover,
those submissions are contradictory, in that the parties making those submissions claim that the cartel ended either sometime
in 1997 (Melco), or sometime in 1999 (the Hitachi group companies or JAEPS and the VA Tech group), or again ‘in or around’
September 2000 (FEH and FES). Consequently, as the Commission correctly states in recitals 284, 285 and 290 of the contested
decision, those submissions are incapable of calling into question the documentary evidence concerning contemporaneous events
and produced by the very undertakings which participated in the infringement found in Article 1 of the contested decision,
according to which that infringement continued from September 2000 until 30 September 2002.
The applicant indeed claims that the submissions in the letter of FEH and FES to the Commission of 21 November 2006 and in
their reply to the statement of objections should be accorded a particular probative value or reliability because they are
‘self-incriminating’ (see paragraph 88 above and paragraph 107 below). However, those submissions, in which FEH and FES argue
that the first undertaking concerned ended its participation in the cartel after the Japanese members’ meeting which took
place ‘in or around’ September 2000, cannot be regarded as contrary to their interests. Those submissions tend rather to minimise
the significance of the contribution made by the first undertaking concerned to the infringement and, consequently, to limit
the personal liability incurred by FEH because of the management which it exercised over that undertaking when the infringement
was committed. Consequently, such submissions are incapable of rebutting the evidence relied on by the Commission in the contested
decision.
Accordingly, there is no foundation for the applicant’s complaint that the Commission disregarded the probative value of the
submissions in the letter of FEH and FES to the Commission dated 21 November 2006 and in their reply to the statement of objections
when it concluded that the first undertaking concerned had participated in the infringement from September 2000 until 30 September
2002, and that FEH could be held personally liable for that infringement because of the management which it exercised over
that undertaking when the infringement was committed.
Moreover, the documents relating to the agreements entered into within the cartel, as described in recitals 191 and 198 of
the contested decision, are credible and precise evidence supporting the Commission’s finding that the first undertaking concerned
continued to participate in the infringement from September 2000 until 30 September 2002, since it is stated in those documents
that ‘Fuji’ was party to those agreements, entered into within the cartel, which were intended to produce their effects between
27 August 1998 and 28 October 2001.
It remains accordingly to be determined whether the alternative explanations or justificatory arguments submitted by the applicant
are capable of rebutting the reliable and precise evidence on which the contested decision relies. Failing that, it can be
concluded that the Commission has discharged the burden on it of proving that the first undertaking concerned continued to
participate in the infringement from September 2000 until 30 September 2002 (see, to that effect,
Aalborg Portland and Others
v
Commission
, paragraph 84 above, paragraph 79, and
Peróxidos Orgánicos
v
Commission
, paragraph 84 above, paragraphs 63 and 71), and that FEH could be held personally liable for that infringement because of
the management which it exercised over that undertaking when the infringement was committed.
–       Analysis of the alternative evidence submitted by the applicant
The applicant complains that the Commission disregarded some arguments or facts which confirmed the credibility of the submissions
made in the reply of FEH and FES to the statement of objections, that the first undertaking concerned had ceased to participate
in the cartel ‘in or around’ September 2000. First, the applicant claims that the first undertaking concerned ceased to take
part in cartel meetings after September 2000, whereas, previously, it attended meetings of the Japanese members, prior to
meetings of the members of the Europe committee and the Japan committee, in accordance with the GQ Agreement. Secondly, the
applicant argues that the submissions of FEH and FES are supported by certain submissions made by ABB, Melco, the Hitachi
group companies or JAEPS, and the VA Tech group. Thirdly, the applicant calls attention to the lack of any reference to the
first undertaking concerned in documents subsequent to September 2000. Fourthly, the applicant claims that the Commission
failed to take into account the fact that the submissions of FEH and FES that the infringement and the participation of the
first undertaking concerned in that infringement had ended in September 2000 were ‘self-incriminating’. Fifthly, they observe
that the documents relating to two bidding procedures in [
confidential
], drawn up in [
confidential
], which they produced as an annex to the application and in response to the Court’s questions and request for the production
of documents (see paragraph 37 above), are evidence that the first undertaking concerned ceased to comply with the arrangements
agreed within the cartel and, finally, ceased to participate in cartel activities after September 2000, since, in those bidding
procedures, the first undertaking concerned considerably lowered its prices below the ‘level prices’ fixed in the arrangements
entered into within the cartel. The applicant claims that those documents show that, in relation to the GIS project for the
[
confidential
] contract in [
confidential
], the price estimates submitted by the first undertaking concerned to its partners were [
confidential
] to [
confidential
]% lower than the ‘level price’ fixed in the arrangement sheet and that, as regards two GIS projects for the [
confidential
] contract in [
confidential
], the price invoiced to its partner was [
confidential
]% lower than the ‘level price’ fixed in the arrangement sheet.
The applicant complains further that the Commission committed a manifest error of assessment of the evidence submitted to
it and infringed their right to a fair hearing, the principle of the presumption of innocence and the principle
in dubio pro reo
by rejecting the submissions of FEH and FES that the first undertaking concerned had ended its participation in the infringement
‘in or around’ September 2000 on the grounds that the date on which that undertaking left the cartel was not clearly stated
in those submissions and that that undertaking did not publicly distance itself from the cartel.
The contested decision does not however suggest that, in order to establish the participation of the first undertaking concerned
in the infringement from September 2000 until 30 September 2002, the Commission relied on ABB’s statement, in its reply of
4 October 2004 to a request for information (see paragraphs 15 and 81 above), that ‘[d]uring the period when Siemens and Hitachi
were not part of the cartel, the GIS projects cartel continued to exist with … ABB, Alstom, Areva, VA Tech, Schneider …, [Melco],
Toshiba and Fuji’. Consequently, there is no need to determine whether, as the applicant maintains, that statement was capable
of supporting the Commission’s conclusions in relation to the participation of the first undertaking concerned from September
2000 until 30 September 2002.
As regards the applicant’s other arguments, first, it must be observed that, as the applicant correctly claims, there is no
evidence in support of the contested decision to allow the finding that the first undertaking concerned took part in a meeting
of the undertakings which participated in the cartel and, in particular, in a Japanese members’ meeting, in the period from
September 2000 to 30 September 2002. However, contrary to what is maintained by the applicant, that fact is not sufficient
to rebut the reliable and precise evidence that the first undertaking concerned continued to participate in the infringement
during that period.
The fact that it is not apparent from the list of ‘committee meetings’ of 12 May 2000 (see paragraph 96 above) that the first
undertaking concerned took part in or must have attended those meetings has no relevance in that regard. That list concerns
only meetings of the joint Europe/Japan committee and preparatory meetings related thereto of the Europe committee. It is
evident from recitals 150, 151, and 376 of the contested decision, and from footnote No 320 to recital 255, that the first
undertaking concerned was not a member of either the Japan committee or consequently the joint Europe/Japan committee. It
did not directly take part either in working level meetings or in the management meetings of the cartel, gathering together
the Japanese and European undertakings.
As regards the fact that it is not apparent either from the fax messages exchanged by certain cartel members between 18 December
2000 and 22 January 2001 or from the list of ‘committee meetings’ of 12 May 2000 that the first undertaking concerned was
a party, during December 2000 and January 2001, to cartel meetings and discussions and, in particular, those relating to the
allocation of the GIS projects referred to in paragraph 95 above, that does not establish that that undertaking ended its
participation in the infringement in the period from September 2000 to 30 September 2002. It is apparent from the documentary
evidence referred to in recital 198 of the contested decision that, during that period, the first undertaking concerned was
party to the application of the agreements entered into by the cartel members in relation to eight GIS projects with reference
numbers [
confidential
], according to which it was obliged, on pain of the usual penalties, to protect tenders submitted by other undertakings which
were cartel members and, ultimately, the actual allocation of the GIS projects concerned to those undertakings, and to do
that for the entire validity period of those arrangements. In the light of the validity period of those agreements, as provided
therein (see paragraphs 99 and 105 above), there is no basis for the applicant’s claims that those arrangements all lapsed
from the end of January 2000, when the bidding procedures for the GIS projects corresponding to those arrangements came to
an end on the specified dates. Further, as stated by the Commission in recital 377 of the contested decision (see paragraph
82 above), the first undertaking concerned was, after receiving an arrangement sheet dated 28 September 2000, supposed to
present an ‘arranged’ bid to a client to create the impression that there was competition for the GIS project concerned.
Secondly, contrary to what is claimed by the applicant, it has not been established that the first undertaking concerned ceased
to apply the arrangements relating to the eight GIS projects with reference numbers [
confidential
] during the period from September 2000 to 30 September 2002 and that it took no action on the arrangement sheet which it
received on 28 September 2000, as stated in the applicant’s reply to the statement of objections, on the ground that those
arrangements had lapsed following the ending of its participation in the cartel after the Japanese members’ meeting which
took place ‘in or around’ September 2000.
The applicant claims that the submissions of FEH and FES are supported, in that regard, by submissions by ABB, in its supplementary
reply to the statement of objections (see paragraph 21 above), and those by Melco, within its application pursuant to the
Leniency Notice (see paragraph 16 above).
As regards, in the first place, ABB’s submissions in its supplementary reply to the statement of objections, it cannot be
inferred therefrom that the first undertaking concerned ended its participation in the cartel and ceased to act on the arrangements
entered into within that cartel ‘in or around’ September 2000. It is true that those submissions confirm that ABB, Alstom,
Melco and Toshiba publicly notified other cartel members, at a meeting which took place in September or October 2000, of their
intention to bring the cartel activities to an end. Further, the first undertaking concerned is not mentioned among the undertakings
participating in the cartel when that notification was made. However, it is stated that the information that the activities
of the cartel were to be brought to an end was a ‘trick’ and that the sole purpose of communicating that information within
the cartel was to ensure that ‘Schneider/VA Tech’ ceased to participate in those activities. Further, it is stated that the
cartel members met a further one or two times before organising the meeting which was apparently to end the cartel activities,
in December 2000. Moreover, it is stated that the cartel members present at that last meeting were ‘ABB, Alstom, Schneider/VA Tech,
[Melco] and Toshiba’ and that Hitachi and Siemens were not present, since they no longer participated, at that time, in the
cartel activities. Those submissions therefore do not in any specific way enhance the reliability of the submissions of FEH
and FES to the effect that the first undertaking concerned could legitimately have believed that the cartel had ended ‘in
or around’ September 2000 and, consequently, ended its participation and, in particular, ceased to give effect to the arrangements
entered into within the cartel. First, it is evident from those submissions that the false information communicated by ABB,
Alstom, Melco and Toshiba was not intended to engineer the departure of the first undertaking concerned from the cartel. Consequently,
as rightly observed by the Commission, it is scarcely credible that that manœuvre could have brought about a result which
was not sought by its perpetrators, without any reaction from them. Secondly, it is evident from those submissions that the
meeting which was apparently to end the cartel activities took place only in December 2000, and consequently the manœuvre
perpetrated by ABB, Alstom, Melco and Toshiba cannot serve as an explanation of the first undertaking concerned choosing to
end its participation in the cartel after September 2000. Third, the fact that the submissions do not mention ‘Fuji’ among
the undertakings which were participating in the cartel at the time of the abovementioned manœuvre has no specific probative
value since (i) that manœuvre was performed within the joint Europe/Japan committee, of which the first undertaking concerned
was not a member and (ii) ‘Fuji’ is equally not referred to among the undertakings who were no longer cartel members when
that manœuvre was performed. In any event, the fact that the first undertaking concerned refrained from participating in further
meetings or discussions within the cartel, in the period from September 2000 to 30 September 2002, does not imply that it
ceased to give effect to the arrangements which had been agreed within the cartel and, therefore, that it was not a member
of the cartel during that period. It follows that ABB’s submissions, in its supplementary reply to the statement of objections,
do not refute the documentary evidence referred to in the contested decision, from which it is evident that the first undertaking
concerned continued to participate in the infringement from September 2000 until 30 September 2002.
Similarly, the fact that, in its submission pursuant to the Leniency Notice, Melco does not mention ‘Fuji’ among the undertakings
which continued to have limited discussions within the cartel, in the period between the interruption by Siemens and Hitachi
of their participation and Siemens’ resumption of participation, is not determinative of whether the first undertaking concerned
participated in the infringement from September 2000 to 30 September 2002, since Melco equally does not say that the first
undertaking concerned left the cartel in the period between Siemens’ interruption of its participation in that infringement
in September 1999 and Siemens resumption of its participation in that infringement in July 2002, and that, therefore, the
first undertaking concerned ceased to act in a way consistent with the arrangements agreed within the cartel.
Moreover, the Commission made a correct assessment of the submissions in the reply of FEH and FES to the statement of objections
to the effect that the first undertaking concerned ended its participation in the cartel after the Japanese members’ meeting
which took place ‘in or around’ September 2000 when the Commission held that those submissions were not particularly reliable
and that, consequently, they could not refute the documentary evidence referred to in the contested decision, from which it
is clear that the first undertaking concerned continued to participate in the infringement from September 2000 until 30 September
2002.
First, for the reasons set out in paragraph 103 above, it cannot be held that the submissions in reply of FEH and FES to the
statement of objections, to the extent that it is claimed that the undertaking concerned ended its participation in the cartel
after the Japanese members’ meeting which took place ‘in or around’ September 2000, are contrary to the interests of the declarants,
in this case FEH, and that, therefore, such submissions ought to have been regarded as particularly reliable.
Secondly, the Commission made a correct assessment of the submissions in the reply of FEH and FES to the statement of objections
when it found that their reliability was affected by a degree of inconsistency, in particular in relation to the date on which
the first undertaking concerned ended its participation in the infringement. FEH and FES, in their reply to the statement
of objections and in their letter to the Commission of 21 November 2006 (see paragraphs 19 and 27 above), and one of the Fuji
group employees, namely Mr Oz., in a statement annexed to the reply of FEH and FES to the statement of objections, asserted
that the first undertaking concerned ended its participation in the cartel after the Japanese members’ meeting which took
place ‘in or around’ September 2000, whereas another Fuji group employee, Mr I.H., in a statement annexed to the same reply,
stated that the meetings of the Japanese members ceased shortly after the departure of Siemens in 1999. In their written pleadings,
FEH and FES also stated that Mr I.H.’s statement with regard to the possible participation of the first undertaking concerned
in the infringement, after 1999, was questionable because, at that time, Mr I.H. had ceased to represent [FEH] at the Japanese
members meetings and that, consequently, he was no longer a direct witness of the facts.
Thirdly, as the Commission correctly observes (see paragraphs 115 and 116 above), account must be taken of the fact that none
of the other parties subject to the proceedings, to whom the FEH and FES submissions were sent for their comments, confirmed
that the first undertaking concerned had in fact ended its participation in the infringement and ceased to give effect to
the arrangements entered into within the cartel either after Siemens interrupted its participation in the cartel in 1999 or
‘in or around’ September 2000.
Fourthly, since, in the circumstances of this case, the applicant’s claims that the first undertaking concerned could legitimately
have believed that the cartel ended in September 2000 are scarcely credible and, consequently, are insufficient to refute
the documentary evidence referred to in the contested decision (see paragraph 115 above), the Court must find that, as maintained
by the Commission, the applicant has failed to refer to or produce any third party statement or any documentary evidence to
indicate that the first undertaking concerned publicly distanced itself, in September 2000, from the cartel and the arrangements,
then valid, which had been agreed within the cartel.
As regards the documents relating to two bidding procedures in [
confidential
], drawn up in [
confidential
], the Commission contends, in essence, that these cannot be validly relied on against it in this action, since they were
not produced by FEH or FES in the course of the administrative procedure.
The first matter therefore to be examined is whether the documents at issue must be disregarded, on the ground that they may
not be relied on against the Commission because the Commission was not made aware of them in the course of the administrative
procedure and they were produced for the first time before the Court.
In that regard, it must be recalled that the competition rules cannot be interpreted as meaning that the person concerned
in an administrative procedure is under an obligation to reply to the statement of objections sent to him by the Commission.
Neither the rules setting out the rights and duties of undertakings within the administrative procedure provided for by competition
law nor any general principle of law oblige those undertakings to do any more than supply the Commission with such information
as it has requested from them under Article 18 of Regulation No 1/2003. Such a duty would, in the absence of any legal basis,
be difficult to reconcile with the principle of respecting the rights of the defence, since it would create difficulties for
a person who, having failed for whatever reason to reply to a statement of objections, wished to bring legal proceedings (see,
by analogy, Case T‑30/89
Hilti
v
Commission
[1991] ECR II‑1439, paragraphs 37 and 38). Thus, while the legality of the Commission decision finding that a person has infringed
competition law and consequently imposing a fine on that person can be assessed only in relation to the facts and points of
law pertaining at the date when the decision was adopted (Case T‑241/01
Scandinavian Airlines System
v
Commission
[2005] ECR II‑2917, paragraph 225), it does not follow that the person concerned is under an obligation to supply to the Commission,
at the stage of the administrative procedure, all the material on which it may wish to rely in support of an action for annulment,
brought before the Courts of the European Union, of the decision adopted at the conclusion of the administrative procedure.
It follows that, contrary to what is maintained by the Commission, FEH and FES were not under an obligation to produce, at
the stage of the administrative procedure, the documents at issue in order to be able to rely on them within this action.
Consequently, the Court must examine the substance of whether, as the applicant claims, the documents relating to two bidding
procedures in [
confidential
], drawn up in [
confidential
], demonstrate that the first undertaking concerned ended its participation in the cartel ‘in or around September 2000’, in
that they establish that, after that date, that undertaking set prices directly dictated by its production costs and substantially
lower than those resulting from the arrangements agreed within the cartel.
In that regard, it must be stated that the documents produced by FEH and FES before the Court, as well as the additional explanations
provided by them in reply to the Court’s questions, are fragmentary, incomplete and relatively difficult to interpret. In
any event, they do not allow the Court to form any clear idea of, first, the conditions under which the GIS projects and,
more generally, the contracts concerned were negotiated or allocated and, second, the exact reasons why adjustments were made
in relation to price estimates or prices of those particular GIS projects in [
confidential
] after September 2000. There is nothing in those documents, even though they are purely internal, to indicate that those
adjustments were in fact made possible because the first undertaking concerned had considered that it no longer needed to
comply with the price arrangements agreed within that cartel.
Quite to the contrary, in the GIS project for the [
confidential
] contract in [
confidential
], where the first undertaking concerned was acting solely as the subcontractor of several undertakings which had submitted
tenders, some of whom, such as [
confidential
] and [
confidential
], were cartel members, the fax messages of [
confidential
] exchanged between FEH and one of its then partners suggest that the new price estimate followed ‘technical clarifications’
and fresh discussions with the client on [
confidential
]. To ensure that meeting the client’s new requirements did not raise the price in the tender to be submitted, in particular,
by [
confidential
], the undertaking which was the partner of the first undertaking concerned states that it had reduced costs in order to reduce,
as far as possible, the GIS project price. That reduction might be linked to the alteration of the components of the GIS project
concerned, such as gas insulated busbars. The applicant acknowledges that gas insulated busbars are equipment which is rather
expensive to manufacture, and that has an effect on the final price. Their use and the scale of their use are, as a general
rule, determined by the client and not by the supplier. A handwritten note on a fax message sent internally within the Fuji
group on [
confidential
] states the following on the GIS project concerned:
‘It seems that the reduction is quite substantial. Is that because we don’t have GIB [gas insulated busbars]? …’
The applicant indeed claims that the use and the extent of use of gas insulated busbars in that GIS project were not altered
between the price estimate submitted on [
confidential
] and that submitted on [
confidential
]. However, the evidence on which the applicant relies in that regard, in particular the technical drawing of [
confidential
], before the technical negotiations with the client on [
confidential
], is insufficient to verify that claim.
In any event, unless it is accepted that there was a conspiracy by certain cartel members against other cartel members, it
is scarcely credible that the first undertaking concerned could have tendered to its partner, which, according to the contested
decision, was not a cartel member, a price estimate manifestly in breach of a price arrangement agreed within the cartel and
still in force, without there being any reaction from the other cartel members to whom the evidence indicates that estimate
was sent, namely [
confidential
] and [
confidential
], in the form of a communication to the first undertaking concerned pointing out that the cartel was still in force and that
its rules had to be respected.
It seems more probable, from that perspective, that, in the GIS project for the [
confidential
] contract in [
confidential
], the ‘level price’ fixed in the arrangement was adjusted downwards to take account of the technical alterations sought by
the client, or to take account of any competitive constraints applied by undertakings which were not cartel members.
It is evident from the documents in the file that price arrangements could be revised to take account of subsequent technical
modifications desired by the client, as was the case, in [
confidential
], in relation to the GIS project with reference number [
confidential
]. Moreover, the joint action of cartel members against outside competition went so far as to provide that, if a GIS project
in which the members had shown an interest and which was subject to arrangement on the ‘level price’ was threatened by strong
price competition from outside the cartel, the cartel members were to fight together against the external competitor and decide
exceptionally on a price reduction in order to eliminate the competition. It is evident from the documents in the file that
a substantial reduction as compared with the ‘level price’ was also agreed in [
confidential
] in the GIS projects with the reference numbers [
confidential
] and [
confidential
] and in [
confidential
] in the GIS project with the reference number [
confidential
], also relating to contracts in [
confidential
]. Likewise, it is evident from material in the file that the price arrangement seems to have been rediscussed, in the light
of pressure from competitors in [
confidential
], in the GIS project with the reference number [
confidential
], again relating to a contract in [
confidential
]. Lastly, it is evident from recital 169 of the contested decision that the Commission’s file contains evidence that, when
Siemens temporarily interrupted its participation, in other words during the period at issue, ‘[t]he cartel attempted for
a certain time to punish Siemens for its departure by fighting it worldwide for particular [GIS] projects’.
Such a cartel defence mechanism vis-à-vis outside competition may therefore very well also have operated both in the GIS project
for the [
confidential
] contract in [
confidential
], where it may be said that the first undertaking concerned and, therefore, [
confidential
] and [
confidential
] seem not to have been successful, and in the [
confidential
] contract in [
confidential
], where the applicant states that the first undertaking concerned bid for the two GIS projects at a price representing [
confidential
]% of the ‘level price’ resulting from the arrangement agreed on [
confidential
] within the cartel and that ultimately it won the contract.
It is also possible, as suggested by the Commission, that in certain GIS projects, cartel members and, in these cases, the
first undertaking concerned acted, secretly, to promote their individual interests, contrary to the interests of other cartel
members and their joint interests.
In any event, the documents produced by FEH and FES contain no indication and are not accompanied by any other evidence from
which it can be inferred that the GIS project price reductions agreed by the first undertaking concerned in [
confidential
] in two tendering procedures in [
confidential
] were the manifestation or consequence of that undertaking publicly distancing itself, in September 2000, from the cartel
and the arrangements agreed within that cartel. Accordingly, even if those documents can be interpreted as meaning that the
first undertaking concerned ceased, on a number of occasions after September 2000, to submit tenders in compliance with the
arrangements agreed within the cartel, that does not permit the conclusion that it had, at that time, ended its participation
in that cartel.
It follows that the documents relating to two bidding procedures in [
confidential
] drawn up in [
confidential
] are not in themselves of sufficient probative value to establish that the first undertaking concerned entirely ended its
participation in the cartel activities after September 2000.
It is evident from the foregoing analysis that the applicant has not put forward any evidence of sufficient probative value
or any persuasive alternative explanation to refute the documentary evidence referred to in the contested decision from which
it is clear that the first undertaking concerned continued to participate in the infringement from September 2000 until 30
September 2002.
Consequently, it must be held that the Commission demonstrated in the contested decision, in accordance with the rules applicable
to proof of the participation of an undertaking in an infringement of Article 81 EC and Article 53 of the EEA Agreement, as
stated in paragraphs 84 to 91 above, and without committing the manifest errors of assessment complained of in this action,
that the first undertaking concerned continued to participate in the infringement, which continued from September 2000 until
30 September 2002. In those circumstances, the applicant cannot justifiably claim that the Commission infringed general principles
of law, such as the right to a fair hearing, the principle of the presumption of innocence and the principle
in dubio pro reo
, by deciding that the first undertaking concerned continued to participate in the infringement from September 2000 until
30 September 2002.
In the light of all the foregoing considerations, the first and second pleas must be rejected.

The third plea in law: infringement of the principle of equal treatment vitiating the Commission’s conclusion that FEH continued
to participate in the infringement after the Japanese members’ meeting which took place ‘in or around’ September 2000
Arguments of the parties
By the third plea, the applicant claims, in essence, that the Commission infringed, in several respects, the principle of
equal treatment by concluding that the first undertaking concerned had continued to participate in the infringement after
the Japanese members’ meeting which took place ‘in or around’ September 2000. First, the Commission treated the first undertaking
concerned differently from Siemens, Hitachi, VA Tech or Schneider by presuming, because that undertaking was not able to give
a definitive indication of when it ended its participation in the infringement, that that undertaking had continued to participate
in that infringement, notwithstanding the fact that a cogent body of indirect evidence, to be found in the file, supported
their submissions. Secondly, the Commission treated the first undertaking concerned differently from Siemens, Hitachi, VA
Tech or Schneider, by presuming, in recital 378 of the contested decision, that, because that undertaking was party to the
agreements concerning GIS projects which continued after September 2000, that undertaking had continued to participate in
the infringement. Thirdly, the Commission treated the first undertaking concerned differently from VA Tech and Schneider,
by presuming, in recital 377 of the contested decision, that, since that undertaking had not publicly distanced itself from
the cartel after September 2000, it had continued to participate in the infringement.
The Commission does not accept that it infringed the principle of equal treatment as claimed and contends that the third plea
should be rejected as unfounded.
Findings of the Court
According to settled case-law, the principle of equal treatment is breached only where comparable situations are treated differently
or different situations are treated in the same way, unless such treatment is objectively justified (Case C‑76/06 P
Britannia Alloys & Chemicals
v
Commission
[2007] ECR I‑4405, paragraph 40, and Case T‑311/94
BPB de Eendracht
v
Commission
[1998] ECR II‑1129, paragraph 309).
According to the Commission, the situation of the first undertaking concerned differs from that of Siemens, Hitachi, VA Tech
or Schneider because, unlike the various submissions of Siemens, the Hitachi group companies, the VA Tech group or Schneider
to the effect that they left the cartel for a specific period, the submission of FEH and FES that the first undertaking concerned
ended its participation in the cartel ‘in or around’ September 2000 was not supported by reliable evidence, such as consistent
submissions by other cartel members or documentary evidence.
In the present case, as observed previously in paragraphs 113 to 137 above, it has not been established that the first undertaking
concerned ceased to apply the agreements relating to eight GIS projects, with reference numbers [
confidential
], which remained valid after September 2000 and that FEH and FES took no action on the arrangement sheet which they themselves
state, in their reply to the statement of objections, they received on 28 September 2000, because those agreements had lapsed
as regards the first undertaking concerned after the ending of its participation in the cartel after the Japanese members’
meeting which took place ‘in or around’ September 2000. The submissions of Siemens, the Hitachi group companies, the VA Tech
group companies or Schneider are a different matter, all those being supported by reliable evidence, as is clear from recitals
186 to 189 of the contested decision. Accordingly, as regards those undertakings, the Commission could establish that they
had left the cartel on a specific date, which means that they then ceased to apply the arrangements which remained valid or
to take action on the arrangement sheets which they received. It is clear from recital 169 of the contested decision that,
when Siemens temporarily interrupted its participation in the cartel, the cartel members engaged in competition with Siemens
worldwide for specific GIS projects (see paragraph 132 above).
Moreover, whereas it is evident from the submissions of the other cartel members that they were aware that Siemens, Hitachi,
VA Tech or Schneider had left the cartel on a specific date and for a specific period, it is not at all evident from those
submissions that the other cartel members also believed that the first undertaking concerned had ended its participation in
the infringement after the Japanese members’ meeting which took place ‘in or around’ September 2000.
The difference between the situation of Siemens, Hitachi, VA Tech or Schneider, on the one hand, and the situation of the
first undertaking concerned, on the other, as demonstrated by the Commission in the contested decision, is such as to justify
the observed difference of treatment of those undertakings, in relation to the date when they may have ended their participation
in the infringement.
It follows that the third plea must also be rejected.

The fourth plea in law: manifest error of assessment vitiating the Commission’s conclusion that FES participated in the infringement
from 15 April 1988 until 11 May 2004
Arguments of the parties
In the fourth plea, the applicant claims that Article 1(h) of the contested decision, and Article 2(d) and (f) thereof, to
the extent that FES is held jointly and severally liable for payment of the fines imposed, must be annulled, since they are
based on manifestly erroneous assessments of the facts of the case, to the effect that FES participated in the infringement
from 15 April 1988 until 11 May 2004. First, the applicant claims that the first undertaking concerned did not participate
in the infringement from September 2000 until 30 September 2002 and that FES itself managed that undertaking only from 1 July
2001 until 30 September 2002, a period during which that undertaking was not participating in the infringement. Secondly,
the applicant does not accept that FES managed indirectly, through JAEPS, the second undertaking concerned between 1 October
2002 and 11 May 2004. In short, only FEH or JAEPS, who managed the first undertaking concerned and/or the second undertaking
concerned during all or part of the period from 15 April 1988 to 11 May 2004, could incur any liability by reason of the participation
of those undertakings in the infringement.
The Commission contends that the fourth plea should be rejected as inadmissible, since it rests on a ground of complaint which
was not submitted by FEH and FES during the administrative procedure, to the effect that FES was not involved, before 1 July
2001, in the Fuji group’s GIS activities. Further, since FEH and FES explicitly accepted, in their reply to the statement
of objections, the personal liability incurred by FES by reason of the participation of the first undertaking concerned in
the infringement for the period from 15 April 1988 to September 2000, they cannot revisit that acceptance in the present action.
In any event, the plea is both legally and factually unfounded.
The applicant claims that the Commission’s plea of inadmissibility should be rejected, since FEH and FES clearly established
that FES was not involved, before 1 July 2001, in the Fuji group’s GIS activities, if not in their reply to the statement
of objections, at least in their reply of 4 October 2004 to the request for information (see paragraph 15 above) and, in particular,
in certain evidence annexed to that reply.
Findings of the Court
It is apparent from Article 1(h) of the contested decision that FES was held personally liable for the participation of the
undertakings concerned in the infringement from 15 April 1988 until 11 May 2004. Consequently, in Article 2(d) and (f) of
the contested decision, the Commission imposed on FES, jointly and severally with FEH, a fine of EUR 2 400 000 and, jointly
and severally with FEH, JAEPS and Hitachi, a fine of EUR 1 350 000.
It is also apparent from recitals 379 and 380 of the contested decision, which refer to recitals 334, 373 and 385 to 402 of
the contested decision, that the Commission held FES and FEH jointly and severally liable for the participation of the first
undertaking concerned in the infringement between 15 April 1988 and 30 September 2002 and that the Commission held FES, FEH,
JAEPS and Hitachi jointly and severally liable for the participation of the second undertaking concerned in the infringement
between 1 October 2002 and 11 May 2004.
According to the case-law cited in paragraph 59 above, persons who are held by the Commission to be personally liable for
the participation of one and the same undertaking in an infringement, because, when the infringement was committed, they either
directly managed that undertaking or in fact exercised control over the persons who were managing that undertaking and thereby
determined their conduct on the market, must be held liable jointly and severally for that participation.
It is apparent from recitals 334, 373 and 385 to 402 of the contested decision, read together with recitals 32 and 33, that
the Commission considered that (i) the first undertaking concerned, which participated in the infringement for the entire
period from 15 April 1988 until 11 May 2004, was, between 15 April 1988 and 30 September 2002, directly managed by FES and
FEH and (ii) the second undertaking concerned, which participated in the infringement from 1 October 2002 to 11 May 2004,
was, during that period, directly managed by JAEPS and indirectly managed, via that jointly owned company, by FES, FEH and
Hitachi.
Since the second ground of complaint raised by the applicant within the fourth plea overlaps with the fifth plea in law which
claims in essence that manifest errors of assessment or errors of law vitiate the Commission’s conclusion that FEH and FES
should be held personally and jointly and severally liable, as parent companies of JAEPS, for the participation of the second
undertaking concerned in the infringement, it is appropriate to examine them together and, consequently, to incorporate the
examination of that second complaint in that of the fifth plea (see paragraph 175 et seq. below).
As regards the first ground of complaint raised by the applicant in this fourth plea, the point to be determined is whether
Article 1(h) and Article 2(d) of the contested decision are based on a manifestly erroneous assessment of the facts of the
case, to the effect that FES can be held personally liable for the participation of the first undertaking concerned in the
infringement from 15 April 1988 until 30 September 2002 – the date when, according to the contested decision, the Fuji group’s
GIS activities were transferred to JAEPS (see paragraph 7 above) – , in that FES managed that undertaking during that period.
The first issue to examine is whether, as maintained by the Commission, it is admissible that the applicant should challenge
for the first time before this Court the personal liability incurred by FES in the contested decision, by reason of the participation
of the first undertaking concerned in the infringement for the period from 15 April 1988 to 30 September 2002, that liability
also being declared in the statement of objections sent to FEH and FES, and even revisit for that purpose, before the Court,
matters which they expressly accepted within the administrative procedure.
As already stated in paragraph 124 above, the rules setting out the rights and duties of undertakings within the administrative
procedure provided for under competition law cannot be interpreted as meaning that a legal or natural person concerned in
an administrative procedure is under an obligation to cooperate and, in reply to the statement of objections sent to that
person by the Commission, to present, at the stage of the administrative procedure, all the grounds of complaint on which
it wishes to rely to support an action for annulment, brought before the Courts of the European Union, of the decision adopted
on the conclusion of that procedure. That position is not called into question by the case-law cited by the Commission. In
Aalborg Portland and Others
v
Commission
, paragraph 84 above, it was accepted that the Court could review the merits, in the decision at issue, of the attribution
of liability for an infringement to a company which had not challenged that attribution during the administrative stage, the
significance of the latter being solely in relation to assessing the scope of the duty to state reasons which, in that case,
lay with the Commission (
Aalborg Portland and Others
v
Commission
, paragraph 84 above, paragraphs 346 to 361, and
Cimenteries CBR and Others
v
Commission
, paragraph 88 above, paragraphs 1335 and 1336).
Where the person concerned decides voluntarily to cooperate and, within the administrative procedure, accepts explicitly or
implicitly facts or points of law which justify the attribution of the infringement to it, the actual exercise of its right
to bring proceedings under the fourth paragraph of Article 230 EC is not thereby restricted (see, to that effect,
Knauf Gips
v
Commission
, paragraph 41 above, paragraphs 89 and 90). In the absence of a specific legal basis, such a restriction is contrary to the
fundamental principles of the rule of law and of respect for the rights of the defence (
Knauf Gips
v
Commission
, paragraph 91). It must further be observed that the right to an effective remedy and of access to an impartial court is
guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union and that, under Article 52(1) of the Charter,
any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law (see
Knauf Gips
v
Commission
, paragraph 91).
In the light of the legal rules set out in paragraphs 158 and 159 above, the plea of inadmissibility raised by the Commission
must therefore be rejected.
In the present action, the applicant does not dispute the participation of the first undertaking concerned in the infringement
from 15 April 1988 until September 2000. Moreover, as stated in paragraph 138 above, the Commission was fully entitled to
decide in the contested decision that the first undertaking concerned had participated in the infringement for the entire
period from September 2000 until 30 September 2002. It follows that there is no basis for the applicant’s claim, as part of
the first ground of complaint within the fourth plea in law, that the contested decision is vitiated, on that point, by a
manifest error of assessment.
As regards the applicant’s challenge to the Commission’s finding that FES could be held personally liable for the participation
of the first undertaking concerned in the infringement from 15 April 1988 until 30 June 2001, in that FES managed that undertaking
during that period, it must initially be recalled that (i) the statement of the reasons on which a decision having adverse
effect is based must make it possible to carry out an effective review of its legality and must provide the party concerned
with details sufficient to allow that party to ascertain whether or not the decision is well founded and (ii) the adequacy
of such a statement of reasons must be assessed in the context of the circumstances of the case, and in particular the content
of the measure in question, the nature of the reasons relied on and the interest which addressees may have in obtaining explanations
(Case T‑38/92
AWS Benelux
v
Commission
[1994] ECR II‑211, paragraph 26 and case-law cited). In order to perform those functions, an adequate statement of reasons
must disclose in a clear and unequivocal fashion the reasoning followed by the authority of the European Union which adopted
the measure in question (
AWS Benelux
v
Commission
, paragraph 26 and case-law cited). Where, as in the present case, a decision pursuant to Articles 81 EC and Article 53 of
the EEA Agreement relates to several addressees and raises a problem of attribution of liability for the infringement, it
must include an adequate statement of reasons with respect to each of the addressees, in particular those of them who, according
to the decision, must bear the liability for that infringement (
AWS Benelux
v
Commission
, paragraph 26).
The fact that the applicant has, in the present case, relied on a substantive plea, alleging a manifest error of assessment,
and not a failure to state reasons or a failure to state adequate reasons, in other words a plea relating to an infringement
of an essential procedural requirement, within the meaning of Article 230 EC (now Article 263 TFEU), does not deprive the
Courts of the European Union of the possibility of raising such a plea of their own motion, since such a plea is a matter
of public policy which may, or even must, be raised by the Courts of their own motion (Case C‑89/08 P
Commission
v
Ireland and Others
[2009] ECR I‑11245 paragraph 54), provided that the rule that the parties should be heard is respected (
Commission
v
Ireland and Others
, paragraph 54).
In the present case, in recital 32 of the contested decision the Commission confined itself to stating baldly that the Fuji
group’s GIS activities were carried out by, inter alia, FES, which is why, as is clear from recitals 373 and 379 of that decision,
liability for the infringement was attributed to FES, in particular for the period from 15 April 1988 until 30 September 2002,
in Article 1(h) of that decision. The contested decision does not acquaint either the applicant or the Court with the facts
or points of law on which the Commission relied in order to decide that FES had, with others, carried out the Fuji group’s
GIS activities between 15 April 1988 and 30 June 2001 and that consequently liability for the infringement for that period
could be attributed to FES.
In reply to a question from the Court (paragraph 41 above), the Commission’s explanation for the lack of detail, in that regard,
in the contested decision was that FEH and FES had expressly accepted, in their reply to the statement of objections, that
liability for the infringement fell on FES. That explanation cannot be accepted. It is true that, in recital 374 of the contested
decision, when the Commission set out the ‘Arguments by Fuji’, it stated that ‘Fuji admits having participated in the cartel
described in the statement of objections between 1988 and September 2000, but not thereafter’. However, from that statement
alone it cannot be concluded, clearly and unequivocally, that the Commission intended to base its findings that FES had managed
the Fuji group’s GIS activities between 1988 and 30 June 2001 and could consequently be held liable for the infringement solely
on the arguments advanced by FEH and FES in the course of the administrative procedure. In particular, recitals 32, 373 and
379 of the contested decision contain no reference to the arguments of FEH and FES as referred to in recital 374 of that decision.
A fortiori
, they contain no information to enable the applicant and the Court to understand why the Commission was led to interpret
the arguments of  FEH and FES as meaning that FES admitted carrying out the Fuji group’s GIS activities between 15 April 1988
and 30 June 2001 and could consequently be held liable for the infringement for that period. Such information was all the
more necessary, in this case, when the interpretation chosen by the Commission was inconsistent with the information which
FEH and FES had provided in their reply of 4 October 2004 to the Commission’s request for information (paragraph 15 above).
It is clear from a careful reading of that reply and, in particular, Annex D thereto, the specific purpose of which was to
answer the Commission’s questions about the legal entities which had managed the Fuji group’s GIS activities, that before
1 July 2001 the only legal entities which carried out such activities were FEH and two subsidiaries which were wholly owned
by FEH, namely Fuji Electric Corp. of America (FECOA) and Fuji Electric International Corp. (FEIC).
Further, a fuller explanation was needed in the contested decision, since the interpretation of the arguments of FEH and FES
chosen by the Commission was incapable of explaining the attribution of liability for the infringement to FES for the entire
period from 15 April 1988 until 30 June 2001. The admission of liability relied on by the Commission covers the period until
September 2000 but not ‘thereafter’.
As regards, moreover, the Commission’s claim that the contested decision is, in any event, justified in the light of the fact,
accepted by the applicant, that some of the Fuji group’s GIS activities were transferred to FES on 1 July 2001 and, since
it thereby succeeded economically FEH or its wholly owned subsidiaries, there was also transferred to FES, in accordance with
the relevant case-law (
Aalborg Portland and Others
v
Commission
, paragraph 84 above, paragraphs 346 to 360), the liability which FEH or its wholly owned subsidiaries incurred by reason
of the participation of the first undertaking concerned in the infringement, in particular, for the period from 15 April 1988
until 30 June 2001, it must be recalled that, under Article 263 TFEU (formerly Article 230 EC), the Court must confine itself
to a review of the legality of the contested decision on the basis of the reasons set out in that measure (Case T‑331/94
IPK-München
v
Commission
[2001] ECR II‑779, paragraph 91). In this case, the reasons advanced by the Commission cannot be considered to be set out
in the contested decision. Neither in the contested decision nor for that matter in the statement of objections did the Commission
state that it intended to hold FES liable for the participation of the first undertaking concerned in the infringement for
the period in question on the basis of FES’s status as the economic successor of FEH or its wholly owned subsidiaries. On
the contrary, the Commission always declared, in order to attribute liability for the infringement to FES, that the Fuji group’s
GIS activities were carried out by ‘inter alia’ FES, and, therefore, that FES had directly managed the first undertaking concerned
during that period. However, those two forms of liability differ substantially, since a person who was managing an undertaking
when it was participating in the infringement must, as a general rule, be liable for that infringement in accordance with
the principle of personal liability (see the case-law cited in paragraph 58 above), whereas the transfer of liability resulting
from the application of the so-called ‘economic continuity’ test is obviously an exception to that rule (see, to that effect,
ETI and Others
, paragraph 58 above, paragraphs 39, 40 and 46).
It follows that the new reasons, based on application of the so-called principle of ‘economic continuity’, relied on by the
Commission within the present proceedings cannot be taken into account in relation to the review of the lawfulness of the
contested decision and that the Commission’s arguments relying on those reasons must be rejected.
In the light of the foregoing and the observations made by the parties, the Court must observe of its own motion that the
contested decision, in that it attributes to FES liability for the participation of the first undertaking concerned in the
infringement from 15 April 1988 until 30 June 2001, is vitiated by a failure to state sufficient reasons which adversely affected
the applicant’s rights of defence and right to an effective remedy and precludes the Court reviewing the merits of the points
of the contested decision criticised by the ground of complaint concerned.
Article 1(h) and Article 2(d) of the contested decision, in that they are based on the finding, unsupported by a statement
of reasons, that the first undertaking concerned was managed by ‘inter alia’ FES from 15 April 1988 until 30 June 2001 must
therefore be annulled.
Further, in so far as the applicant does not accept that FES can be held personally liable for the participation of the first
undertaking concerned in the infringement from 1 July 2001 until 30 September 2002, it needs to be said that the applicant
does not dispute that after 1 July 2001 FES carried out some of the Fuji group’s GIS activities – particularly because of
the absorption of FEIC, one of FEH’s wholly owned subsidiaries – but dispute only that those activities, in particular those
which were previously carried out by FEIC, were then a part of the first undertaking concerned. In that regard, it must be
noted that, as is acknowledged by the applicant and as is evident, moreover, from Annex D to the reply of 4 October 2004 to
the request for information, FEIC carried out, particularly in the period from 15 April 1988 until 30 June 2001, the activities
of marketing GIS projects to international clients, excluding public utilities in North America – the North American market,
unaffected by the infringement, was reserved to FECOA – , and that FEIC was therefore, in principle, directly responsible
for the implementation of the common understanding and the failure to seek new customers in the entire internal market and,
externally, in the European Economic Area. It follows that, contrary to what is claimed by the applicant, the GIS activities
carried out by FEIC are necessarily included in ‘Fuji’s GIS activities … carried out by, inter alia, [FEH] and [FES]’, as
referred to in recital 32 of the contested decision. Those activities are therefore part of the first undertaking concerned
by the contested decision, as described in paragraph 61 above. Consequently, the Commission did not commit the error complained
of by deciding, in the contested decision, to hold FES personally liable for the participation of the first undertaking concerned
in the infringement from 1 July 2001 until 30 September 2002.
In the light of all the foregoing considerations, the first ground of complaint in the fourth plea in law must be partly upheld
and Article 1(h) and Article 2(d) of the contested decision must be annulled, in so far as the Commission finds or relies
on the finding that FES, of which the applicant is the successor, can be held personally liable for the infringement from
15 April 1988 until 30 June 2001 because it directly managed the first undertaking concerned during that period. For the remainder,
the first ground of complaint in the fourth plea in law must be rejected.

The fifth plea in law: manifest errors of assessment or errors of law vitiating the Commission’s conclusion that FEH and FES
must be held personally and jointly and severally liable for the participation of JAEPS in the infringement
Arguments of the parties
The applicant claims, in essence, that Article 2(f) of the contested decision must be annulled since it is based on a manifestly
erroneous assessment of the facts, to the effect that FEH and FES could be held personally and jointly and severally liable
for the participation in the infringement of JAEPS or, more precisely, the second undertaking concerned, then managed by JAEPS,
for the period from 1 October 2002 until 11 May 2004. According to the applicant, the Commission failed to discharge the burden
of proving that FEH and FES were able to exercise a decisive influence on JAEPS, such as to justify their being held personally
and jointly and severally liable, with JAEPS and Hitachi, for payment of the fine imposed due to the participation of the
second undertaking concerned in the infringement from 1 October 2002 until 11 May 2004.
The Commission considers that there are a number of indicia which, taken together, support the finding in the contested decision
that FEH and FES exercised a decisive influence on JAEPS, by allowing the infringement to continue after the transfer to JAEPS
on 1 October 2002 of the Fuji group’s GIS business. The Commission contends, therefore, that the fifth plea should be rejected
as unfounded.
Findings of the Court
Before undertaking the substantive analysis of this plea and, for the reasons set out in paragraph 155 above, of the second
ground of complaint in the fourth plea, it is necessary to identify the exact point of dispute underlying the fifth plea and
the recitals of the contested decision in dispute, and to recall the rules applicable to attributing liability for infringement
of the competition rules as between a subsidiary and its parent company.
–       The point of dispute underlying the fifth plea
The applicant does not dispute that the second undertaking concerned participated in the infringement between 1 October 2002
and 11 May 2004. Nor does the applicant dispute that, for that period, that undertaking was directly the responsibility of
or managed by JAEPS. On the other hand, the applicant does not accept that FEH and FES, by means of directly or indirectly
holding 30% of JAEPS’s share capital, actually exercised any managerial power over the second undertaking concerned and, consequently,
that they indirectly managed that undertaking between 1 October 2002 and 11 May 2004.
–       The recitals of the contested decision targeted by the fifth plea
In recitals 383 to 403 of the contested decision the Commission deals with the liability personally incurred by FEH and FES,
as the parent company of JAEPS, which was directly responsible for the second undertaking concerned, by reason of the participation
of that undertaking in the infringement from 1 October 2002 until 11 May 2004. The Commission stated, inter alia, the following:
‘(383) [JAEPS] was incorporated in July 2001 and has participated in the collusive behaviour described in this Decision between 1
October 2002 (when Hitachi’s and Fuji’s GIS activities were transferred to JAEPS) and 11 May 2004 (date of the last cartel
meeting, due to the notification of the Commission’s inspections).
(384) JAEPS was formed to combine the T&D [transmission and distribution of electricity] businesses of the parent companies for
the supply of T&D customers [footnote No 399: p. 23134 (Hitachi’s reply to the Statement of Objections)]. [Hitachi] and [FES]
(100% subsidiary of [FEH]) are respectively 50% and 30% owners of the joint venture JAEPS (the third owner being [Meidensha]).
…
(389) The respective stakes alone of the parent companies in JAEPS do not allow the Commission to presume that they have exercised
a decisive influence on JAEPS market behaviour in general or its cartel activities in particular. Nevertheless, the factual
record shows clearly that Hitachi and Fuji were able to exercise and have actually exercised a decisive influence with regard
to the involvement of JAEPS in the cartel activities described in this Decision from 1 October 2002 until 11 May 2004. The
Commission considers that JAEPS did not determine autonomously its market behaviour, but followed the commercial practices
and behaviour established by Hitachi and Fuji.
(390) By transferring their GIS interests to JAEPS (without transferring their respective subsidiaries formerly active in this area),
Hitachi and Fuji were in effect using JAEPS as a vehicle to continue their long standing involvement in the cartel [Footnote
No 400: the Commission file does not contain any evidence against Meidensha] of GIS [project] producers (both Hitachi et Fuji
continued to sell [GIS] under their own name, but outsourced the production to JAEPS).
(391) Those conclusions are based on objective factors such as … the supervisory and management role of Hitachi and Fuji on JAEPS
activities … the previous involvement of both Hitachi and Fuji in the cartel activities before the creation of JAEPS … the
fact that Hitachi and Fuji’s subsidiaries formerly involved in GIS activities withdrew from them in order for JAEPS to succeed
them with their subsequent assistance and kept their interest in the products as distributors thereof … the presence in cartel
meetings of individuals representing JAEPS and holding simultaneous or consecutive positions in Hitachi and/or Fuji and …
the fact that many individuals holding senior positions in JAEPS also held simultaneously or consecutively senior positions
in Hitachi and Fuji.
…
(402) Hitachi’s and Fuji’s choice to pursue their involvement in the cartel by means of a joint venture should not allow them to
evade liability for it.
(403) Therefore [JAEPS], [Hitachi], [FEH] and [FES] should be held jointly and severally liable for the involvement of JAEPS in
the infringement from 1 October 2002 until 11 May 2004.’
It is therefore apparent from the contested decision that, for the period from 1 October 2002, the Commission held FEH and
FES to be personally liable not because they could be categorised as directly managing the first undertaking concerned, but
because they could be categorised as the parent companies of JAEPS, which was directly responsible for the second undertaking.
–       The rules applicable to attributing liability for an infringement of competition law as between a subsidiary and its parent
company
For the purposes of applying competition law, formal separation of two companies resulting from their separate legal personality
is not decisive. The test is whether or not there is unity in their conduct on the market. It may therefore be necessary to
establish whether two companies with separate legal personality form, or fall within, one and the same undertaking or economic
entity adopting the same course of conduct on the market (
DaimlerChrysler
v
Commission
, paragraph 56 above, paragraph 85; see also, to that effect,
Imperial Chemical Industries
v
Commission
, paragraph 58 above, paragraph 140).
According to settled case-law, the fact that a subsidiary has separate legal personality is not sufficient to exclude the
imputation of its conduct to the parent company, especially where the subsidiary does not determine its market conduct independently
but in all material respects carries out the instructions given to it by the parent company (
Imperial Chemical Industries
v
Commission
, paragraph 58 above, paragraphs 132 and 133, and
PVC II
, paragraph 57 above, paragraph 960). Where a subsidiary does not enjoy real autonomy in determining its course of action
in the market, the prohibitions set out in Article 81(1) EC may be considered inapplicable in the relationship between it
and the parent company with which it forms one economic unit (
Imperial Chemical Industries
v
Commission
, paragraph 58 above, paragraph 134; Case T‑102/92
Viho
v
Commission
[1995] ECR II‑17, paragraph 51). The cited case-law is applicable, by analogy, to Article 53(1) of the EEA Agreement.
Against that background, it is, as a rule, for the Commission to demonstrate that the parent company or companies actually
exercised a decisive influence on the market conduct of their subsidiary, on the basis of a body of factual evidence, including,
in particular, any management power exercised by the parent company or companies over their subsidiary (see, to that effect,
Case T‑314/01
Avebe
v
Commission
[2006] ECR II‑3085, paragraph 136 and case-law cited).
It is generally the case that if a parent company holds a majority interest in the subsidiary’s share capital, that can enable
it actually to exercise a decisive influence on its subsidiary and, in particular, on the subsidiary’s market conduct. It
has accordingly been held that where the control actually exercised by a parent company over a subsidiary in which it has
a 25.001% holding represents a minority interest, far short of a majority interest, it cannot be concluded that the parent
company and its subsidiary belong to a single group, within which they form an economic unit (see, to that effect, Case T‑141/89
Tréfileurope
v
Commission
[1995] ECR II‑791, paragraph 129).
None the less, a minority interest may enable a parent company actually to exercise a decisive influence on its subsidiary’s
market conduct, if it is allied to rights greater than those normally granted to minority shareholders in order to protect
their financial interests and which, when considered in the light of a set of consistent legal or economic indicia, are such
as to show that a decisive influence is exercised over the subsidiary’s market conduct. Proof of the actual exercise of a
decisive influence may therefore be adduced by the Commission by relying on a body of evidence, even if each of those indicia
taken in isolation does not have sufficient probative value.
The actual exercise of management power by the parent company or parent companies over their subsidiary may be capable of
being inferred directly from the implementation of the applicable statutory provisions or from an agreement between the parent
companies, entered into under those statutory provisions, in relation to the management of their common subsidiary (see, to
that effect,
Avebe
v
Commission
, paragraph 181 above, paragraphs 137 to 139). The extent of the parent company’s involvement in the management of its subsidiary
may also be proved by the presence, in leading positions of the subsidiary, of many individuals who occupy managerial posts
within the parent company. Such an accumulation of posts necessarily places the parent company in a position to have a decisive
influence on its subsidiary’s market conduct since it enables members of the parent company’s board to ensure, while carrying
out their managerial functions within the subsidiary, that the subsidiary’s course of conduct on the market is consistent
with the line laid down at management level by the parent company. That objective can be attained even though member(s) of
the parent company who take on managerial functions within the subsidiary do not have authority as agents of the parent company.
Lastly, the involvement of the parent company or companies in the management of the subsidiary may follow from the business
relationship which they have with each other. Accordingly, where a parent company is also the supplier or customer of its
subsidiary, it has a very specific interest in managing the production or distribution activities of the subsidiary, in order
to take full advantage of the added value created by the vertical integration thus achieved (see, to that effect, Opinion
of Advocate General Mischo in Case C‑286/98 P
Stora Kopparbergs Bergslags
v
Commission
[2000] ECR I‑9925, paragraph 58 above, paragraphs 50 and 51).
Having regard to the fact that, under Article 263 TFEU (formerly Article 230 EC), the Court must confine itself to a review
of the legality of the contested decision on the basis of the reasons set out in that measure (
IPK-München
v
Commission
, paragraph 167 above, paragraph 91), the question whether a parent company actually exercises management power over its subsidiary
must be assessed solely by reference to the evidence assembled by the Commission in the decision which attributes liability
for the infringement to the parent company. In fact, the only relevant question is therefore whether the infringement is or
is not proved in the light of that evidence (
Cimenteries CBR and Others
v
Commission
, paragraph 88 above, paragraph 726).
–       The evidence that FEH and FES actually exercised management power over JAEPS, assembled by the Commission in the contested
decision
First, in the light of the case-law referred to in paragraphs 179 to 185 above, it is appropriate to examine the indicia,
assembled in the contested decision, relating to the provisions of the Master Agreement on the creation of the joint subsidiary,
JAEPS (‘the Master Agreement’), entered into on [
confidential
] by Hitachi, FEH and Meidensha (‘the founding companies’).
In order to prove the supervisory and managerial role played by FEH and FES within JAEPS, the Commission states, in recital
395 of the contested decision, the following:
‘[
confidential
]’.
As regards those findings of fact, FEH and FES have only claimed, in their written pleadings or their written reply to questions
from the Court, that it cannot be inferred from such findings that they exercised a decisive influence on the market conduct
of JAEPS, since [
confidential
].
Article [
confidential
] of the Master Agreement, as produced by FEH and FES as an annex to their reply to the statement of objections, stipulates
that [
confidential
].
Article [
confidential
] of the Master Agreement provides for [
confidential
]. Under Article [
confidential
]) of the Master Agreement, [
confidential
]. Article [
confidential
] of the Master Agreement stipulates in that regard that [
confidential
]. Lastly, Article [
confidential
] of the Master Agreement stipulates that [
confidential
].
Article [
confidential
] of the Master Agreement also provides that [
confidential
].
Lastly, according to Article [
confidential
] of the Master Agreement [
confidential
].
It is apparent therefore from Article [
confidential
] of the Master Agreement, read in the light of other provisions of that agreement, that each of the founding companies had
the power, [
confidential
], to exercise a decisive influence on JAEPS’s market conduct. [
confidential
]. It follows that the founding companies had necessarily to agree on the important decisions concerning the market conduct
of their joint subsidiary.
The applicant has produced no evidence to support their claims that [
confidential
]. In that context, the fact, undisputed by the applicant, that [
confidential
] is evidence that [
confidential
] the founding companies must, in practice, have agreed on the important decisions relating to JAEPS’s management and business.
As regards the applicant’s claim that [
confidential
] even if true, that is not in itself decisive, since [
confidential
]. In paragraph 4.3 of their reply to the statement of objections, FEH and FES in fact acknowledged that [
confidential
] and that [
confidential
]. In any event, as observed by the Commission, it is clear from paragraphs 5.7 and 5.8 of the applicant’s reply to the statement
of objections that [
confidential
]. Lastly, in their letter to the Commission of 10 November 2006, the applicant admits that [
confidential
]. [
confidential
]. Taking into account the provisions of Article [
confidential
] of the Master Agreement, it is, in any event, clearly incorrect to claim, as the applicant does, that [
confidential
].
As regards the fact that the participation of the second undertaking concerned, then directly managed by JAEPS, was not discussed
at the meetings of the Presidents and/or senior officers of the founding companies, that is of no relevance, since there is
no requirement, in order to attribute to a parent company liability for the acts undertaken by its subsidiary, to prove that
that parent company was directly involved in, or was aware of, the offending conduct. The reason why the Commission is able
to address a decision imposing fines to the parent company of a group of companies is not that the parent company instigated
its subsidiary to commit the infringement nor,
a fortiori
, that the parent company was involved in the infringement, but that the parent company and the subsidiary adopted the same
course of conduct on the market when the infringement was committed (
Akzo Nobel and Others
v
Commission
, paragraph 57 above, paragraph 58, and Case T‑12/03
Itochu
v
Commission
[2009] ECR II‑883, paragraph 58). In the present case, the Commission was therefore not required to show that FEH and FES
were directly involved in or that they were aware of the participation in the infringement of the second undertaking concerned,
which was then directly managed by JAEPS, but needed only establish that, at the time of that participation, those companies
actually exercised a decisive influence on the market conduct of their subsidiary, in particular, as members of the operation
conference (see paragraphs 180 and 181 above).
Secondly, it is necessary to examine the indicia assembled in the contested decision relating to the fact that a large number
of senior officers of JAEPS were simultaneously or consecutively senior officers of FEH or FES.
In recital 400 of the contested decision, the Commission stated:
‘In this regard, the following examples concerning Fuji’s overlapping senior management … are relevant:
(a)      [Mr Os.] was the [
confidential
] of JAEPS from [
confidential
] until [
confidential
] as well as [
confidential
] of [FES] at the same time. He then became [
confidential
] of the latter [
confidential
].
(b)      [Mr H.H.] [
confidential
] JAEPS from [
confidential
] until [
confidential
], was simultaneously [
confidential
] of [FEH]. He later became [
confidential
] of [FES].
(c)      [Mr Ok.] succeeded [Mr I.] as [
confidential
] of JAEPS until [
confidential
]. He was simultaneously [
confidential
] of [FES].
(d)      [Mr Y.], [
confidential
] of JAEPS from [
confidential
], was simultaneously [
confidential
] and then [
confidential
] of [FES].
(e)      [Mr A.], [
confidential
] of JAEPS until [
confidential
], was simultaneously [
confidential
] of [FEH].
(f)      [Mr K.] succeeded [Mr A.] as [
confidential
] of JAEPS from [
confidential
]. He was simultaneously [
confidential
] of [FES].’
The fact that managerial posts within FEH or FES overlapped with posts within JAEPS such as [
confidential
], necessarily placed FEH and FES in a position actually to have a decisive influence on JAEPS’s market conduct, since it
enabled members of the management of those companies to check that JAEPS’s course of conduct on the market was consistent
with that determined by [
confidential
], in accordance with the provisions of Article [
confidential
] of the Master Agreement. It is apparent from recital 393 of the contested decision, confirmed on this point by part H of
the Hitachi group companies’ reply to the statement of objections and paragraphs 5.10 and 5.11 of the applicant’s reply to
the statement of objections, that [
confidential
]. It has not been disputed nor even claimed by FEH and FES that their senior officers who were also [
confidential
] of JAEPS [
confidential
], were not in receipt of all the information required for the assumption of their responsibilities. Even if those persons
did not receive information on [
confidential
], it is clear from paragraph 5.10 of the FEH and FES reply to the statement of objections that those persons were, for the
founding companies, a conduit of information on matters discussed at [
confidential
] of JAEPS, that is, matters relating to [
confidential
] of JAEPS’s business.
Thirdly, it is necessary to examiner the indicia assembled in the contested decision relating to the fact that FES and FEH
maintained their interest in the GIS projects produced by JAEPS, as distributors of them.
The fact that, upon the creation of JAEPS, FEH and FES continued, as stated in recital 398 of the contested decision, to sell
GIS projects produced by JAEPS ‘to their own established non-utility customers’, which represented, according to the Commission,
[
confidential
] to [
confidential
]% of the Fuji group’s GIS activities before the creation of JAEPS, and that they therefore became important customers of
JAEPS, is evidence that they retained a specific commercial interest in actually exercising a decisive influence on the market
conduct of their subsidiary, [
confidential
], in accordance with the provisions of Article [
confidential
] of the Master Agreement.
Accordingly, in the light of the foregoing findings, there is no need to examine the other indicia set out in that regard
in the contested decision, the relevance of which has also been challenged by the applicant, and it must be concluded that
the actual exercise by FEH and FES of a decisive influence on the course of conduct on the market followed by JAEPS has been
proved by the Commission to the requisite legal standard simply by the following indicia set out in the contested decision:
the provisions of the Master Agreement, the overlapping of management posts within FEH and FES and JAEPS and the interest
which FEH and FES retained in the GIS projects produced by JAEPS, as the distributors of those GIS projects.
Consequently, in the circumstances of the present case, the Commission was fully entitled to hold FEH and FES personally liable
and jointly and severally liable, with Hitachi and JAEPS, for the participation of the second undertaking concerned in the
infringement from 1 October 2002 until 11 May 2004.
The fifth plea in law and the second ground of complaint in the fourth plea must therefore be rejected as unfounded.
2.
The claims for the partial variation of the contested decision
The applicant invites, in essence, the Court, in the exercise of its unlimited jurisdiction under Article 261 TFEU (formerly
Article 229 EC), to reduce substantially the fines imposed on FEH and FES in Article 2(d) and (f) of the contested decision,
by taking into account the fact that it is not possible in law to attribute to FEH liability for the infringement, found in
Article 1 of the contested decision, for the period from September 2000 to 30 September 2002; the fact that it is not possible
in law to attribute to FES liability for the same infringement for the period from 15 April 1988 to 30 September 2002; the
fact that it is not possible in law to attribute to FEH and FES, as parent companies of JAEPS, liability for the infringement
for the period from 1 October 2002 to 11 May 2004, and, lastly, the fact that it is necessary to reduce the fines imposed
on FEH and FES in the light of the significant added value of the information provided by them during the administrative procedure,
within the meaning of paragraph 23(b) of the Leniency Notice or, failing that, in the light of the attenuating circumstance
residing in the fact that that information enabled the Commission to establish the existence of the infringement with less
difficulty, for the purposes of the sixth indent of section 3 of 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’).

Preliminary observations on the unlimited jurisdiction of the Courts of the European Union
On the basis of Article 261 TFEU (formerly Article 229 EC), a number of regulations have given the Courts of the European
Union unlimited jurisdiction with regard to penalties. In particular, Article 17 of Regulation No 17 and Article 31 of Regulation
No 1/2003 provide that the General Court is to have unlimited jurisdiction to review decisions whereby the Commission fixes
or has fixed a fine.
However, that unlimited jurisdiction can be exercised by the Courts of the European Union only in the context of the review
of acts of the institutions, more particularly in actions for annulment. Article 261 TFEU (formerly Article 229 EC) does not
constitute an autonomous legal remedy; its sole effect is to enlarge the extent of the powers the Courts of the Union have
in the context of the action referred to in Article 263 TFEU (formerly Article 230 EC). Consequently, an action in which the
Courts of the Union are asked to exercise their unlimited jurisdiction with respect to a decision imposing a penalty necessarily
comprises or includes a request for the annulment, in whole or in part, of that decision (order in Case T‑252/03
FNICGV
v
Commission
[2004] ECR II‑3795, paragraph 25).
More than a simple review of legality within an action for annulment under Article 263 TFEU (formerly Article 230 EC), which
merely permits dismissal of the action for annulment or annulment of the contested measure, as provided in Article 264 TFEU
(formerly Article 231 EC), the unlimited jurisdiction conferred on the Courts of the Union authorises them to vary the contested
measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend, for example,
the amount of the fine (Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P
Limburgse Vinyl Maatschappij and Others
v
Commission
[2002] ECR I‑8375, paragraph 692). It follows that, in areas where the Commission has retained a margin of discretion, such
as determining the scale of the increase of the fine according to the duration of the infringement or the need to ensure that
the penalty has a deterrent effect, or assessing the quality and usefulness of the cooperation provided by an undertaking
in the administrative procedure, in particular by reference to the contributions made by other undertakings, the fact that
the review of legality within an action for annulment under Article 263 TFEU (formerly Article 230 EC) is limited to determining
the absence of manifest error of assessment does not, in principle, preclude the Courts of the Union from exercising their
unlimited jurisdiction (see, to that effect, Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03
Tokai Carbon and Others
v
Commission
, paragraph 59 above, paragraph 164 and case-law cited, and Case T‑116/04
Wieland-Werke
v
Commission
[2009] ECR II‑1087, paragraphs 32, 33 and 124).
In the context of their unlimited jurisdiction, the Courts of the Union have the power to assess the appropriateness of the
amounts of fines in the light of the criteria set out in Article 15(4) of Regulation No 17 or in Article 23(2)(a) of Regulation
No 1/2003 as the case may be, (Case C‑248/98 P
KNP BT
v
Commission
[2000] ECR I‑9641, paragraph 40; Case C‑280/98 P
Weig
v
Commission
[2000] ECR I‑9757, paragraph 41, and
Cascades
v
Commission
, paragraph 58 above, paragraph 41). That assessment may justify the production and taking into account of additional information
which is not mentioned in the Commission decision imposing the fine (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 165 and case-law cited, and Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03
Tokai Carbon and Others
v
Commission
, paragraph 59 above, paragraphs 164 and 190).
In the present case, in accordance with all the claims for the partial variation of the contested decision, the Court must,
in the exercise of its unlimited jurisdiction, examine whether Article 2(d) and (f) of the contested decision, even if they
are not to be annulled, should be varied so as to alter the amount of the fines imposed on FEH and FES. In that context, account
must be taken not only of defects relied on in support of the claims for annulment of Article 1(g) and (h) and Article 2(d)
and (f) of the contested decision, which have already been raised in relation to the review of legality, but also defects
which are solely relied on in support of the claims for variation of Article 2(d) and (f) of the contested decision and all
the information, produced by the parties within these proceedings, which appear relevant to assessing the amount of the fines
at issue.

The impossibility of legally attributing to FEH liability for the infringement for the period from the end of September 2000
until 30 September 2002
Arguments of the parties
The applicant claims, having regard to the first, second and third pleas, that the Court should exercise its unlimited jurisdiction
under Article 261 TFEU (formerly Article 229 EC) and substantially reduce the amount of the fine imposed on FEH, given the
impossibility of legally attributing to FEH liability for the infringement for the period from the end of September 2000 until
30 September 2002.
The Commission considers that the first, second and third pleas must be rejected and consequently that the applicant’s claims
must fail.
Findings of the Court
Since the Commission was legally entitled to attribute to FEH, in the contested decision, liability for the participation
of the first undertaking concerned in the infringement, which itself continued without interruption from the end of September
2000 until 30 September 2002 and since, therefore, the first, second and third pleas must be rejected (see paragraphs 139
and 147 above), there is no need for the Court, in the exercise of its unlimited jurisdiction, to vary in that regard Article
2(d) of the contested decision.
Accordingly, the claims concerned for partial variation of the contested decision must be rejected.

The impossibility of legally attributing to FES liability for the infringement for the period from 15 April 1988 until 30
September 2002
Arguments of the parties
The applicant claims, having regard to the fourth plea in law, that the Court should exercise its unlimited jurisdiction under
Article 261 TFEU (formerly Article 229 EC) and substantially reduce the amount of the fine imposed on FES, given the impossibility
of legally attributing to FES liability for the infringement for the period from 15 April 1988 to 30 September 2002.
The Commission considers that the fourth plea must be rejected and consequently that the applicant’s claims must fail.
Findings of the Court
Since the Commission was legally entitled to attribute to FES, in the contested decision, liability for the participation
of the first undertaking concerned in the infringement from 1 July 2001 until 30 September 2002 (see paragraph 171 above),
there is no need for the Court, in the exercise of its unlimited jurisdiction, to vary in that regard Article 2(d) of the
contested decision. To that extent, the claims concerned for the partial variation of the contested decision must be rejected.
On the other hand, it is necessary that the Court, in the exercise of its unlimited jurisdiction, partially vary the contested
decision further to the annulment of Article 2(d) of the contested decision, to the extent that it is based on the finding,
unsupported by a statement of reasons, that FES can be held personally liable for the infringement from 15 April 1988 until
30 June 2001 (see paragraphs 170 and 172 above).
As regards the exact extent to which Article 2(d) of the contested decision should be varied, it must first be observed that,
in the case of FES, the attribution of liability for the participation of the first undertaking concerned in the infringement
from 15 April 1988 until 30 June 2001 was taken into account in order to determine the amount of the fines to be imposed on
it and the result was an increase in the amount of those fines, as is apparent from recital 498 of the contested decision.
Next, in order to decide on the increase to the starting amount of the fine to be imposed on FES according to the duration
of the infringement for which it can be held liable, the Court should not depart from the method followed by the Commission,
in recital 492 of the contested decision, to the effect that, for infringements lasting longer than one year, the starting
amounts of fines are to be increased by 10% for each full year of infringement and by 5% for each additional period of at
least six months but less than a year. While it is true that that method differs slightly from that set out in the Guidelines,
which, in respect of infringements of medium duration (in general, one to five years), provide for an amount which may be
up to 50% of the amount determined for the gravity of the infringement, it is nevertheless consistent with the Commission’s
normal practice in applying those Guidelines. Further, it must be observed that the Commission applied that method to all
of the undertakings which participated in the infringement found in Article 1 of the contested decision and that that method
has not been disputed by the applicant within the present action.
Lastly, taking into account the annulment of Article 2(d) of the contested decision, to the extent that it is based on the
erroneous finding that FES can be held personally liable for the participation of the first undertaking concerned in the infringement
from 15 April 1988 until 30 June 2001, it can no longer be found with regard to FES, as stated in recital 498 of the contested
decision, that the infringement is one of long duration, namely 14 years and four months, justifying, in accordance with the
principles stated in recital 492 of the contested decision, an increase of 140% in the starting amount of the fine, but only
that the infringement is one of medium duration, one year and three months, justifying an increase of 10% in the starting
amount of the fine of EUR 1 000 000 imposed on FES, as stated in recital 490 of the contested decision, and therefore that
the basic amount of the fine payable by FES should be set at EUR 1 100 000, jointly and severally with FEH, on account of
the participation of the first undertaking concerned in the infringement from 1 July 2001 until 30 September 2002, without
prejudice to any reduction which may be made to that amount to take due consideration of mitigating circumstances relied on
by the applicant (see paragraphs 226 to 268 below).

The impossibility of legally attributing to FEH and FES, as parent companies of JAEPS, liability for the participation of
the second undertaking concerned in the cartel for the period from 1 October 2002 until 11 May 2004
Arguments of the parties
The applicant claims, having regard to the fifth plea and the second ground of complaint in the fourth plea, that the Court
should exercise its unlimited jurisdiction under Article 261 TFEU (formerly Article 229 EC) and substantially reduce the amount
of the fine imposed on FEH and FES, given the impossibility of legally attributing to them, as parent companies of JAEPS,
liability for the participation of the second undertaking concerned in the infringement for the period from 1 October 2002
until 11 May 2004.
The Commission considers that the fifth plea and the second ground of complaint in the fourth plea must be rejected and, consequently,
that these claims by the applicant must fail.
Findings of the Court
The Commission was legally entitled, in the contested decision, to attribute to FEH and FES, as parent companies of JAEPS,
liability for the participation of the second undertaking concerned in the infringement from 1 October 2002 until 11 May 2004
(see paragraphs 203 and 204 above). The Court should not exercise its unlimited jurisdiction and alter, in that regard, Article
2(f) of the contested decision.
Consequently, these claims for the partial variation of the contested decision must be rejected.

Whether it is necessary to grant FEH and FES a reduction in their fines in the light of the significant added value of the
information provided during the administrative procedure, pursuant to the Leniency Notice, or, alternatively, by reason of
an attenuating circumstance, pursuant to the Guidelines
Arguments of the parties
The applicant claims that the Court should exercise its unlimited jurisdiction under Article 261 TFEU (formerly Article 229
EC) and grant FEH and FES a reduction of 50% in the amount of the fines imposed on them, in the light of points 21 and 22
and also point 23(b) of the Leniency Notice, taking into account the significant added value of the information which they
provided to the Commission during the administrative procedure, in their submission pursuant to the Leniency Notice, their
reply to the statement of objections and their letter of 29 September 2006 (see paragraphs 19, 20 and 25 above), which enabled
the Commission to prove the suspected infringement. The fact that that information was provided after notification of the
statement of objections does not mean that the test of significant added value, within the meaning of the Leniency Notice,
cannot be satisfied.
Alternatively, the applicant requests that the Court reduce the amount of the fine imposed on FEH and FES, taking into account
the fact that, since their effective cooperation during the administrative proceedings enabled the Commission more easily
to establish the existence of the infringement, that factor can therefore be treated, in the light of the case-law, as an
attenuating circumstance under the sixth indent of section 3 of the Guidelines.
The Commission contends that that claim should be rejected.
Findings of the Court
Before analysing the substance of these claims it is useful to identify the recitals in the contested decision which they
challenge and to recall the rules applicable to the reduction of fines in the light of the evidence provided by an undertaking
which participated in the infringement and its effective cooperation in the administrative procedure.
–       The recitals of the contested decision challenged by the present claims for variation
In recitals 548 to 550 of the contested decision the Commission stated, in relation to the cooperation of FEH and FES during
the administrative procedure, the following:
‘(548) After the notification of the Statement of Objections to the parties, Fuji applied for a reduction of fines under the Leniency
Notice (on 12 July 2006), while requesting that its reply to the statement of objections should also be taken into account
for that purpose. On 28 September 2006 it supplemented its previous submissions with a further statement from a former employee.
(549) In its submissions, Fuji described the cartel and acknowledged its existence in the terms depicted in the Statement of Objections
as well as its participation in it from April 1988 until
“on or around September 2000”
, described the internal procedures of the cartel, in particular as regards the contacts between the Japanese companies and
provided some evidence, including lists of documents which included projects agreed, under the cartel rules, to be implemented
after September 2000 (see recital 198). However, Fuji contested its individual participation after September 2000 as well
as its liability for the infringement committed by JAEPS.
(550) In view of the fact that Fuji’s application was only made after the notification of the Statement of Objections and of the
content of that submission, the Commission considers that Fuji’s submission did not significantly strengthen the Commission’s
ability to prove the relevant facts, since Fuji confirmed factual elements that had already been established to the required
legal standard by the Commission on the basis of other pieces of evidence and it did not provide the grounds for new objections.
Therefore, its contribution did not amount to significant added value as compared with the information already in the Commission’s
possession at the time of the submission of the evidence and does not justify the granting of a reduction of fines based on
the Leniency Notice.’
–       The rules applicable to reduction of fines in the light of the evidence submitted by an undertaking which participated in
the infringement and its effective cooperation in the administrative proceedings
According to the case-law, the rationale underlying the reduction of fines for cooperation on the part of undertakings which
have participated in an infringement of competition law is that such cooperation makes it easier for the Commission to carry
out its task of establishing an infringement and, where possible, of bringing it to an end (Joined Cases C‑189/02 P, C‑202/02 P,
C‑205/02 P to C‑208/02 P and C‑213/02 P
Dansk Rørindustri and Others
v
Commission
[2005] ECR I‑5425, paragraph 399;
BPB de Eendracht
v
Commission
, paragraph 142 above, paragraph 325, and Case T‑338/94
Finnboard
v
Commission
[1998] ECR II‑1617, paragraph 363)
Points 20 to 23 of the Leniency Notice read as follows:
‘20.      Undertakings that do not meet the conditions under section A [Immunity from fines] may be eligible to benefit from a reduction
of any fine that would otherwise have been imposed.
21.      In order to qualify, an undertaking must provide the Commission with evidence of the suspected infringement which represents
significant added value with respect to the evidence already in the Commission’s possession and must terminate its involvement
in the suspected infringement no later than the time at which it submits the evidence.
22.      The concept of “added value” refers to the extent to which the evidence provided strengthens, by its very nature and/or its
level of detail, the Commission’s ability to prove the facts in question. In this assessment, the Commission will generally
consider written evidence originating from the period of time to which the facts pertain to have a greater value than evidence
subsequently established. Similarly, evidence directly relevant to the facts in question will generally be considered to have
a greater value than that with only indirect relevance.
23.      The Commission will determine in any final decision adopted at the end of the administrative procedure:
(a)      whether the evidence provided by an undertaking represented significant added value with respect to the evidence in the Commission’s
possession at that same time;
(b)      the level of reduction an undertaking will benefit from …
In order to determine the level of reduction …, the Commission will take into account the time at which the evidence fulfilling
the condition in point 21 was submitted and the extent to which it represents added value. It may also take into account the
extent and continuity of any cooperation provided by the undertaking following the date of its submission.
In addition, if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct
bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when
setting any fine to be imposed on the undertaking which provided this evidence.’
The Guidelines provide that the new method of determining the amount of the fines follows a system based on the fixing of
a basic amount, to which increases are applied to take account of aggravating circumstances and reductions applied to take
account of attenuating circumstances.
The sixth indent of section 3 of the Guidelines provides that effective cooperation by the undertaking in the proceedings,
outside the scope of the Leniency Notice may, for example, constitute an attenuating circumstance justifying a reduction in
the basic amount of the fine.
While the Leniency Notice and the Guidelines, which stem from a self-imposed limitation of the Commission’s discretion (see
paragraph 208 above), do not constitute rules of law which the administration is always bound to observe, they nevertheless
form rules of practice from which the administration, when exercising its power to impose a fine for an infringement of Article
81 EC and Article 53 of the EEA Agreement, may not depart in an individual case without giving reasons that are compatible
with the principle of equal treatment (see, to that effect and by analogy,
Itochu
v
Commission
, paragraph 196 above, paragraph 63 and case-law cited).
–       The material already in the Commission’s possession in comparison with information and evidence provided by FEH and FES which
is claimed to constitute ‘significant added value’ and to represent ‘effective cooperation’ in the administrative proceedings
The applicant refers, in the present case, to certain information which FEH and FES provided to the Commission during the
administrative proceedings, concerning the existence of the common understanding from 1988 and its reciprocity, as mentioned
in recital 255 of the contested decision, and to a selection of documents, including agreements entered into within the cartel
relating to thirteen GIS projects of various kinds, which are referred to in recital 198 of the contested decision.
The Commission contends, in general, that that information and those documents were scarcely liable to constitute ‘significant
added value’ and to represent ‘effective cooperation’ by FEH and FES in the investigation, since the material was communicated
after the notification of the statement of objections and, therefore, at a stage when the Commission had already stated, clearly,
the facts on which it relied in the present case and their legal classification, as follows also from point 26 of the Leniency
Notice.
It is true that the statement of objections must enable the parties concerned properly to identify the conduct complained
of by the Commission, that requirement being satisfied if the final decision does not allege that those concerned have committed
infringements other than those referred to in the statement of objections and only takes into consideration facts on which
the parties concerned have had the opportunity of making known their views (Joined Cases T‑191/98, T‑212/98 to T‑214/98
Atlantic Container Line and Others
v
Commission
[2003] ECR II‑3275, paragraph 138, and 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
, paragraph 209 above, paragraph 47; see also, to that effect,
ACF Chemiefarma
v
Commission,
paragraph 98 above, paragraph 94). However, while the infringements which an undertaking is alleged in a decision to have
committed cannot be other than those stated in the statement of objections, the same cannot be said of the facts taken into
consideration, since it is sufficient, with regard to those facts, that the undertakings subject to the proceedings have had
the opportunity to make known their views on the facts considered to inculpate them. That has been expressly held by the Courts
of the European Union, which have stated that there is no provision which prevents the Commission from sending to the parties
after the statement of objections fresh documents which it considers support its argument, provided that it gives the undertakings
the necessary time to submit their views on them (Case T‑23/99
LR AF 1998
v
Commission
[2002] ECR II‑1705, paragraph 190; see also, to that effect, Case 107/82
AEG-Telefunken
v
Commission
[1983] ECR 3151, paragraph 29).
While it is correct that the date when evidence is delivered to the Commission has an effect on whether that evidence is to
be classified as having significant added value, since that classification is dependent on what evidence is already held by
the Commission at the date of delivery, the mere fact that such evidence has been delivered after the notification of the
statement of objections does not mean that it may not still constitute, notwithstanding the advanced stage of the administrative
proceedings, significant added value. In particular, in an application pursuant to the Leniency Notice submitted after the
statement of objections has been sent, an undertaking may focus on the facts which, in its opinion, have not been proved to
the requisite legal standard in order to provide significant added value compared with the evidence already in the Commission’s
possession.
Further, point 26 of the Leniency Notice does no more than state a procedural obligation which must be met by the Commission.
Point 26 does not provide that any cooperation by an undertaking in proving the infringement is necessarily deprived of any
value if it occurs only after notification of the statement of objections. It must moreover be observed that such cooperation
may be very useful where the material provided was previously unknown to the Commission and where it has a direct effect on
the gravity or duration of the presumed cartel.
–       Analysis of the information provided by FEH and FES on the existence of the common understanding from 1988 and its reciprocity
As a preliminary point, it must be recalled that, in recital 125 of the contested decision, the Commission held that ‘the
common understanding’ was an unwritten agreement entered into by the Japanese and European undertakings, to the effect that
‘the Japanese should not quote for [GIS] projects in Europe and vice versa’ [‘European companies would not quote for Japanese
[GIS] projects’(footnote 73)] and ‘Japan and the European countries where the European cartel members had their stronghold
were reserved to the cartel members concerned, without interference by the others’. In recital 261 of the contested decision,
the Commission further stated that ‘[f]urther to the logic of the cartel …, it is established, on the basis of [cartel members’]
statements and other documentary evidence, that the anti-competitive agreement existed and included the mutual respect of
most of the EEA market by the Japanese and the Japanese market by the Europeans’, and that ‘it [was] also established that,
in the context of the monitoring of the global quotas, the sales made in the EEA outside the European home countries were
taken into account under the global quotas’, and that ‘[t]his mechanism reveal[ed] by its mere definition and implementation
the existence of a restrictive object …’.
The common understanding is the only evidence from which it can be inferred that the Japanese undertakings – to use the chosen
wording of recital 261 of the contested decision – ‘in fact [took] part in the infringement’ found in Article 1 of the contested
decision. First, as is apparent from recitals 119, 126, 244 and 246 of the contested decision, the GQ Agreement, to which
the Japanese undertakings were parties, was not applicable in the countries of Western Europe. Secondly, as is apparent, for
example, from recital 247 of the contested decision, the Commission did not find, in the contested decision, that the Japanese
undertakings were parties to arrangements, such as the EQ Agreement, which had a direct impact on the European market. In
those circumstances, it is therefore very much the common understanding, as described in recitals 125 and 261 of the contested
decision, which allows the creation of a link between the Japanese undertakings and the EEA market and which is, consequently,
the basis on which the Commission has any jurisdiction in their regard.
It is apparent from recitals 125 to 132 and 255 to 264 of the contested decision that, in order to prove the existence of
the common understanding, as described in recitals 125 and 261 of the contested decision, the Commission did not, as incorrectly
claimed by the applicant, rely solely on the conduct of the undertakings concerned in the market, but on ‘a coherent body
of inculpatory evidence’ consisting of the following:
–        the submissions of the Areva group companies (see footnotes Nos 70 and 71 of the contested decision) and those of ABB (see
footnote No 72 of the contested decision) from which it is apparent that the cartel was designed to maintain the status quo,
taking into account the parties’ historic market shares and historic stronghold positions (see recital 124 of the contested
decision);
–        the statements of ABB and, in particular, that of one of its former employees, Mr M., a direct witness of events (see footnotes
Nos 73 to 75 of the contested decision), and the submissions of FEH and FES (see footnote No 76 of the contested decision),
according to which the worldwide sharing of projects was based on the common understanding (see recitals 125, 255, 262 and
263 of the contested decision);
–        the fact that neither Alstom, nor the Areva group companies, nor the VA Tech group openly disputed the existence of the common
understanding (see recitals 124, 127 and 253 of the contested decision);
–        the GQ Agreement and Appendix 2 thereto, as notified by ABB, in that they originally contained a list of excluded countries,
consisting of, among others, Japan and most of the countries of Western Europe, which was then extended to the ‘Europe’ market,
which allowed those areas to be treated according to specific allocation rules, in the spirit of the common understanding
(recital 126 and footnote No 62 of the contested decision);
–        the documentary evidence dating from the period of the infringement, notified by ABB or by the Hitachi group companies or
JAEPS, which prove (i) that the allocation to Japanese undertakings of GIS projects in Iceland, Liechtenstein and, for a long
time, Eastern Europe was not excluded, (ii) that, when the cartel was adjusted in 2002, discussions took place between Japanese
and European undertakings on whether Central and Eastern Europe was a market of the Europeans and (iii) that the European
undertakings allocated among themselves the relevant GIS projects in Europe, including, from 2002 onwards, GIS projects in
Eastern Europe (recitals 127, 128 and 256 of the contested decision);
–        The FEH and FES reply to the statement of objections, the submissions by the Hitachi group companies or JAEPS [footnotes Nos 85
and 86 of the contested decision] and a variety of documentary evidence dating from the period of the infringement, notified
by ABB, which prove that the Japanese undertakings were also aware of the existence of arrangements at the European level
(without necessarily knowing the details or the concrete procedures) regarding GIS projects and that they were also aware
of GIS projects, including certain GIS projects in Europe, allocated among the European undertakings; they were also given
prior notification of certain GIS projects in Europe, not only in Iceland, but also in some of the countries excluded in Appendix
2 to the GQ Agreement, in accordance with the possibility of notification provided for in Appendix 2 to the EQ Agreement,
sent by ABB (recitals 119 and 129 to 132 of the contested decision).
The applicant claims that the FEH and FES submissions on the existence of the common understanding from 1988 and its reciprocity,
as mentioned in recital 255 of the contested decision, have significant added value for the Commission, since those submissions
enabled the Commission to prove the existence and scope of the common understanding to the requisite legal standard, taking
into account what is required by the case-law and the credible alternative explanation that there were substantial barriers
to entering the European GIS projects market which deterred the Japanese suppliers of those products, an explanation put forward
or supported by the Hitachi group companies or JAEPS, Toshiba, Melco, FEH and FES themselves, the Areva group companies and
the VA Tech group.
It is undisputed that during the administrative proceedings FEH and FES first acknowledged the existence of the common understanding
in their reply to the statement of objections, by stating the following:
‘Although Fuji was aware of the common understanding that the Japanese manufacturers would not attempt to enter the European
market, this was not the principal reason for its lack of GIS sales in the EEA. Fuji was not a credible significant supplier
of GIS products to Europe for the following reasons …’
Without even needing to refer to the later submissions of FEH and FES, the Court can hold that, as stated in recitals 125
and 255 of the contested decision, FEH and FES thereby effectively corroborated, albeit in relatively vague terms, the existence
of the common understanding and an essential part of its content, namely that the Japanese manufacturers undertook not to
enter the European market. Further, again in the reply to the statement of objections, FEH and FES stated, in a footnote,
that ‘the Japanese suppliers were not party to [the EQ Agreement]’, that ‘[a]s such, the representatives from Fuji did not
know whether or not [the EQ Agreement] was ever concluded in Vienna’, that ‘[n]either did such representatives know the content
of [the EQ Agreement]’ and that ‘[f]urthermore, … information regarding the allocation of [GIS] projects in the European countries
excluded by Appendix II to the GQ-Agreement was not systematically provided to the Japanese suppliers’. That submission can
be regarded as confirmation that the Japanese undertakings were aware of the GIS projects allocated among the European undertakings,
including those in certain countries excluded by Appendix II to the GQ Agreement. However, contrary to what was stated by
the Commission in recital 129 of the contested decision, it cannot be held, in the light of that evidence, that the Japanese
undertakings were also aware of the existence of arrangements at the European level.
However, it is apparent from the recitals of the contested decision referred to in paragraph 243 above, read together with
recitals 88, 91 and 95, that, when the Commission was acquainted with those submissions, presented for the first time in the
FEH and FES reply to the statement of objections dated 30 June 2006, the Commission had in its possession the evidence described
in paragraph 243 above, namely the documentary evidence provided by ABB and by the Hitachi group companies or JAEPS, as well
as the explicit statements from the Areva group companies, ABB and the Hitachi group companies or JAEPS from which, according
to the Commission, the existence of a ‘common understanding’, as described in recital 125 of the contested decision, could
logically be inferred.
In recitals 258 and 261 of the contested decision, the Commission argued, in essence, that the existence of a ‘common understanding’,
as described in recital 125 of the contested decision, could be inferred from the submissions by cartel members and other
documentary evidence in the file since, in the light of that evidence, it constituted a coherent explanation which was consistent
with the logic of the cartel. Thus, as stated by the Commission in recitals 258 to 260, the existence of a ‘common understanding’,
as described in recital 125 of the contested decision, offered a coherent explanation of the following:
–        why the sales in some EEA countries (those which were not considered as ‘home countries’) were counted in the cartel quotas
and monitored by the parties to those agreements while, in contrast, the sales in Japan and in other EEA countries (the ‘home
countries’) were not ‘loaded’ (recital 258 of the contested decision);
–        why the worldwide quotas included sales in most of Europe and why the difference in treatment of sales within the EEA was
not reflected in the texts as such, since all the EEA countries were simply listed as excluded territory in the GQ Agreement
(recital 258 of the contested decision), and
–        why the Japanese undertakings did not bid more often in Europe and apparently had not even considered entering the European
market for 16 years by means similar to the ones used in other markets in the rest of the world (recitals 259 and 260 of the
contested decision).
The applicant however claims that the statements by cartel members and the other documentary evidence used to support the
Commission’s explanation based on the existence of a ‘common understanding’ were of no relevance, since they were worded ambiguously
and were not sufficient to discount the credible alternative explanation, provided by a number of the undertakings which were
cartel members, that it was because there were substantial barriers to entry that it was commercially unattractive for Japanese
GIS project suppliers to introduce their products into the European market.
It must however be observed that the alternative explanation referred to by the applicant is not compatible with the statements
by cartel members and the other documentary evidence particularly referred to in paragraph 243, from which it is apparent
that, when the cartel was adjusted in 2002, discussions took place between the Japanese and European undertakings on whether
the Central and Eastern European markets were reserved to the European undertakings, that the Japanese undertakings were also
informed, as part of the cartel, of the allocation of certain GIS projects in Europe, even though all EEA countries were,
in principle, listed as excluded territories in the GQ Agreement, so that they should, a priori, not have been counted in
the joint European quota, and that the Japanese undertakings were also given prior notice of certain GIS projects in Europe,
not only in Iceland, but also in certain countries which were excluded in Appendix II to the GQ Agreement. As correctly stated
by the Commission in recitals 256 and 257 of the contested decision, that there were such discussions is, on the other hand,
compatible with (i) the fact that the Japanese undertakings were perceived by their European counterparts to be credible potential
competitors in the European markets, (ii) the fact that prior to 2002 the Japanese undertakings responded to calls for tenders
in Central and Eastern Europe or sold GIS projects intended for use in that area and (iii) the fact that the European undertakings
accepted, as part of a cartel aimed at maintaining its members’ historic market shares, the ‘sacrifice’ of GIS projects outside
Europe, by counting European GIS projects (outside the ‘home countries’) in their global quota under the GQ Agreement, in
exchange for being able to control their own price level in Europe.
Further, it must be held that the Commission already had in its possession ABB’s submissions, referred to in paragraph 243
above, which confirmed its conclusions on the existence and content of the common understanding, which could ‘be objectively
deducted [sic] from the global cartel mechanism’, in the words used by the Commission in recital 262 of the contested decision,
and indeed on the basis of the submissions of cartel members and other documentary evidence mentioned in paragraph 243 above.
Moreover, it is apparent from the documents produced by the Commission, at the Court’s request (see paragraph 37 above), that
on 30 June 2006 and at the time when FEH and FES replied to the statement of objections the Commission had in its possession
the reply from the Hitachi group companies or JAEPS to the statement of objections, which confirmed that certain GIS projects
in Europe (outside the ‘home countries’) were counted in the global European quota under the GQ Agreement.
Accordingly, although, as part of the ‘coherent body of inculpatory evidence’ on which the Commission relied in the contested
decision, the submissions of FEH and FES were useful to a degree, they did no more than confirm, less precisely and explicitly
than the earlier submissions from ABB, the existence and content of a common understanding, which could already be deduced
from the submissions of cartel members and other documentary evidence supplied to the Commission and referred to in paragraph
243 above.
In those circumstances, it must be held that the relatively vague submissions of FEH and FES, although they had some probative
value, did not represent significant added value compared with the evidence then held by the Commission and did not justify
a reduction in the fine being granted to them by the Commission, under points 21, 22 and 23 of the Leniency Notice.
As regards the applicant’s argument that the cooperation of FEH and FES nevertheless justifies a reduction in the fine pursuant
to the sixth indent of section 3 of the Guidelines, it must be recalled that, to the extent that that provision defines as
an attenuating circumstance the ‘effective cooperation by the undertaking in the proceedings, outside the scope of [the Leniency
Notice]’, that necessarily refers, at least as regards the horizontal cartels to which the Leniency Notice relates, to cooperation
which is insufficient to justify a reduction under the Leniency Notice (see, to that effect and by analogy,
Mannesmannröhren-Werke
v
Commission
, paragraph 88 above, paragraph 307).
However, it should also be borne in mind that, in order to justify a reduction in a fine on grounds of cooperation, the conduct
of an undertaking must facilitate the Commission’s task of finding and bringing to an end infringements of the Community competition
law (see by analogy,
Mannesmannröhren-Werke
v
Commission
, paragraph 88 above, paragraph 308 and case-law cited). In those circumstances, it must be held that the hypothesis envisaged
by the sixth indent of section 3 of the Guidelines is an exceptional situation as regards the horizontal agreements referred
to by the Guidelines, since there must have been ‘effective’ cooperation which facilitated the Commission’s task but which
was not covered by the Leniency Notice (see, by analogy,
Mannesmannröhren-Werke
v
Commission
, paragraph 88 above, paragraph 308).
In the present case, the submissions of FEH and FES cannot be regarded as having facilitated the Commission’s task of finding
and putting an end to infringements, since, as stated in paragraph 252 above, they do no more than confirm, secondarily and
less precisely and explicitly than the earlier submissions of ABB, the existence and content of a common understanding, which
could already be deduced from the submissions of cartel members and other documentary evidence supplied to the Commission
and, in particular, the material referred to in paragraph 243 above.
Accordingly, it must be held that the submissions of FEH and FES did not justify their being granted a reduction in the fines
imposed on them, on the ground that they had effectively cooperated in the proceedings, within the meaning of the sixth indent
of section 3 of the Guidelines. It is therefore not appropriate that the Court, in the exercise of its unlimited jurisdiction,
should vary Article 2(d) of the contested decision on that basis.
Consequently, the applicant’s claims in that regard must be rejected in their entirety.
–       Analysis of the various documents, in particular arrangement sheets, contemporaneous with the facts and relating to 13 GIS
projects of various kinds subject to the cartel arrangements
The applicant further maintains that the various documents, in particular arrangement sheets, contemporaneous with the facts
and relating to 13 GIS projects of various kinds subject to the cartel arrangements, which they supplied to the Commission
during the administrative procedure had significant added value for the Commission by strengthening its ability to prove that
the cartel had not ended after the meeting which took place in [
confidential
] in [
confidential
].
The documents referred to by the applicant were not referred to in the statement of objections and were mentioned, for the
first time, in recital 198 of the contested decision.
It is apparent, moreover, from the contested decision, and from material in the file, that the data on GIS projects with reference
numbers [
confidential
] has its origin in the arrangement sheets and specific other documents mentioned in Annex 2 to the submission of FEH and
FES pursuant to the Leniency Notice. Although the Commission has not specified the origin of the data relating to the GIS
project with reference number [
confidential
], it is apparent from the file that FEH and FES also supplied the arrangement sheet relating to that project in Annex 2 to
their submission pursuant to the Leniency Notice.
It is true that in recital 198 of the contested decision the Commission states that some data relating to the abovementioned
GIS projects was provided by ABB and it is apparent from the Commission’s reply to the Court’s questions and request for production
of documents (see paragraph 37 above) that ABB provided that information on 7 May 2004 (see paragraph 10 above) in the form
of a list of GIS projects. However, the list produced by the Commission, at the Court’s request, contains only some of the
data relating to the GIS projects with reference numbers [
confidential
] and [
confidential
] and that data does not at all correspond to the data reproduced in recital 198 of the contested decision. It must therefore
be held that the relevant data on those GIS projects is solely that which was provided by FEH and FES in Annex 2 to their
submission pursuant to the Leniency Notice.
It must be observed that the data relating to the GIS projects with reference numbers [
confidential
], sent by the applicant, and in particular the data relating to the agreement on the GIS project with reference number [
confidential
], in which the first undertaking concerned was involved and the validity period of which extended from [
confidential
] to [
confidential
], had a direct effect on the presumed duration of the cartel with regard to FEH and FES, by enabling the Commission to prove
that the first undertaking concerned had continued to participate in the infringement from September 2000 until 1 October
2002.
Further, it is apparent in particular from recital 290 of the contested decision and paragraphs 79, 93 and 96 to 100 above,
that the agreements entered into by the cartel members in relation to the eight GIS projects with reference numbers [
confidential
] were of use to the Commission in order to prove that the first undertaking concerned and other undertakings had continued
to participate in the cartel in the 2000-2001 period. Of all the documents in the Commission’s possession, only the agreements
entered into by the cartel members in relation to those eight GIS projects made it possible to prove that, at least until
September or October 2001, the cartel members concerned were still bound by the agreements entered into within the cartel,
which strengthened the Commission’s ability to prove the continuation of the cartel in that period.
Since it has been established that FEH and FES supplied all the essential data relating to those agreements, which were previously
unknown to the Commission, the basic amount of the fine imposed on them should have been reduced, in accordance with point
23 of the Leniency Notice, in order not to take that data into account when setting the fines imposed on them in Article 2(d)
of the contested decision.
It follows that the Commission ought to have reduced the amount of the fine which it imposed on FEH and FES in order not to
take into account their participation in the infringement in the period from September 2000 to 30 September 2002. In those
circumstances, it serves no purpose to consider, as claimed by the applicant, whether FEH and FES should be granted a reduction
in their fines on the ground that, by supplying the list of agreements, they effectively cooperated in the proceedings, within
the meaning of the sixth indent of section 3 of the Guidelines.
In accordance with the method adopted in the contested decision (see paragraph 220 above), the calculation of the amount of
the fines imposed on FEH and FES must be varied to take account of the fact that an increase in the starting amount of the
fines cannot be applied to either FEH or FES on the ground that the first undertaking concerned participated in the infringement
for the entire period from the end of September 2000 until 30 September 2002. In accordance with the principles stated in
recital 492 of the contested decision, an increase of 10% of the starting amount of the fine cannot be applied to FES on the
ground that the first undertaking concerned participated in the infringement for the period from 1 July 2001 to 30 September
2002, as noted in paragraph 221 above, and in the case of FEH only an infringement with a duration of 12 years and three months,
justifying an increase of 120% of the starting amount of the fine, can be taken into account and, consequently, a sum of EUR 2 200 000
must be fixed as the fine payable by FEH because of the participation of the first undertaking concerned in the infringement
for the period from 15 April 1988 until 30 September 2002.
In the light of the foregoing considerations, the amount of the fine of EUR 2 400 000, as calculated in recitals 522 and 552
of the contested decision (footnotes Nos 457 and 465 of the contested decision), payable by FEH must ultimately be reduced
to a sum of EUR 2 200 000, EUR 1 000 000 of that amount being payable jointly and severally by FEH and FES.
However, account must be taken, in the operative part of this judgment, of the fact that, as stated in paragraph 43 above,
since 1 April 2011 Fuji Electric Co. Ltd (formerly named FEH) has been the legal successor of FES and has assumed the rights
of FES, the interests of FEH and FES now having come together in the person of Fuji Electric Co. Ltd. Consequently Article
2(d) of the contested decision must be varied so that the fine imposed on the applicant, formerly named FEH and the successor
in title to FES, is fixed at EUR 2 200 000.

Costs
Under Article 87(3) of the Rules of Procedure, the Court may order that the costs be shared or that each party bear its own
costs where each party succeeds on some and fails on other heads.
As the action has been partially successful, the Court considers it fair in the circumstances of the case to order the Commission
to pay one quarter of the costs incurred by the applicant and to bear one quarter of its own costs. The applicant shall bear
three quarters of their own costs and pay three quarters of the costs incurred by the Commission.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.
Annuls Article 1(h) and Article 2(d) of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding
under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear) to the
extent that they find or rely on the finding that Fuji Electric Systems Co. Ltd, the successor in title to which is Fuji Electric
Co. Ltd, can be held personally liable for the infringement from September 2000 until 30 June 2001;
2.
Sets the amount of the fine imposed on Fuji Electric, formerly named Fuji Electric Holdings Co. Ltd and the successor in title
to Fuji Electric Systems, in Article 2(d) of Decision C (2006) 6762 final at EUR 2 200 000;
3.
Orders the European Commission to pay one quarter of the costs incurred by Fuji Electric and to bear one quarter of its own
costs;
4.
Orders Fuji Electric to bear three quarters of its own costs and three quarters of the costs incurred by the Commission.
Pelikánová
Jürimäe
Soldevila Fragoso
Delivered in open court in Luxembourg on 12 July 2011.
[Signatures]
Table of contents
Background to the dispute
1.  The goods concerned
2.  The undertakings concerned
3.  Administrative procedure
4.  The contested decision
Procedure and forms of order sought
Law
1.  The claims for the partial annulment of the contested decision
Preliminary observations on the undertakings involved in the infringement found in Article 1(g) and (h) of the contested decision
and on the liability incurred, for that reason, by FEH and FES
The first and second pleas: manifest errors of assessment, an infringement of the right to a fair hearing, the principle of
the presumption of innocence and the principle in dubio pro reo, and an infringement of the rules relating to allocation of
the burden of proof
Arguments of the parties
Findings of the Court
–  The exact point of dispute underlying the first and second pleas
–  The recitals of the contested decision disputed by the underlying argument of the first and second pleas
–  The rules applicable to proving an infringement of Article 81 EC and Article 53 of the EEA Agreement and proving an undertaking’s
participation in such an infringement
–  Analysis of the evidence relied on in the contested decision
–  Analysis of the alternative evidence submitted by the applicant
The third plea in law: infringement of the principle of equal treatment vitiating the Commission’s conclusion that FEH continued
to participate in the infringement after the Japanese members’ meeting which took place ‘in or around’ September 2000
Arguments of the parties
Findings of the Court
The fourth plea in law: manifest error of assessment vitiating the Commission’s conclusion that FES participated in the infringement
from 15 April 1988 until 11 May 2004
Arguments of the parties
Findings of the Court
The fifth plea in law: manifest errors of assessment or errors of law vitiating the Commission’s conclusion that FEH and FES
must be held personally and jointly and severally liable for the participation of JAEPS in the infringement
Arguments of the parties
Findings of the Court
–  The point of dispute underlying the fifth plea
–  The recitals of the contested decision targeted by the fifth plea
–  The rules applicable to attributing liability for an infringement of competition law as between a subsidiary and its parent
company
–  The evidence that FEH and FES actually exercised management power over JAEPS, assembled by the Commission in the contested
decision
2.  The claims for the partial variation of the contested decision
Preliminary observations on the unlimited jurisdiction of the Courts of the European Union
The impossibility of legally attributing to FEH liability for the infringement for the period from the end of September 2000
until 30 September 2002
Arguments of the parties
Findings of the Court
The impossibility of legally attributing to FES liability for the infringement for the period from 15 April 1988 until 30
September 2002
Arguments of the parties
Findings of the Court
The impossibility of legally attributing to FEH and FES, as parent companies of JAEPS, liability for the participation of
the second undertaking concerned in the cartel for the period from 1 October 2002 until 11 May 2004
Arguments of the parties
Findings of the Court
Whether it is necessary to grant FEH and FES a reduction in their fines in the light of the significant added value of the
information provided during the administrative procedure, pursuant to the Leniency Notice, or, alternatively, by reason of
an attenuating circumstance, pursuant to the Guidelines
Arguments of the parties
Findings of the Court
–  The recitals of the contested decision challenged by the present claims for variation
–  The rules applicable to reduction of fines in the light of the evidence submitted by an undertaking which participated
in the infringement and its effective cooperation in the administrative proceedings
–  The material already in the Commission’s possession in comparison with information and evidence provided by FEH and FES
which is claimed to constitute ‘significant added value’ and to represent ‘effective cooperation’ in the administrative proceedings
–  Analysis of the information provided by FEH and FES on the existence of the common understanding from 1988 and its reciprocity
–  Analysis of the various documents, in particular arrangement sheets, contemporaneous with the facts and relating to 13
GIS projects of various kinds subject to the cartel arrangements
Costs
*
* Language of the case: English.
Confidential information omitted.