CELEX: 62006TJ0357
Competition
Agreements, decisions and concerted practices
Netherlands market in road pavement bitumen
Decision finding an infringement of Article 81 EC
Existence and classification of an agreement
Restriction on competition
Guidelines on the applicability of Article 81 EC to horizontal cooperation agreements
Rights of the defence
Fine
Aggravating circumstances
Role of instigator and leader
Absence of cooperation
Commission’s powers of investigation
Right to the assistance of a lawyer
Misuse of powers
Calculation of the amount of the fines
Duration of the infringement
Unlimited jurisdiction

Facts
I –
The applicant
Koninklijke Volker Wessels Stevin is a Netherlands construction group consisting of more than a hundred operating companies. The parent company, Koninklijke Volker Wessels Stevin NV (‘KVWS’), operates in the road construction sector through Volker Wessels Stevin Verkeersinfra BV and through the applicant, its subsidiary, Koninklijke Wegenbouw Stevin BV, which is responsible on behalf of the whole group for the negotiations concerning and for the purchasing of bitumen for the production of asphalt in the Netherlands. During the period of the infringement, KVWS held all the applicant’s capital, through the holding companies Volker Wessels Stevin Infra BV and Volker Wessels Stevin Verkeersinfra.
II –
Administrative procedure
By letter of 20 June 2002, British Petroleum (‘BP’) informed the Commission of the European Communities of the presumed existence of a cartel with regard to the supply of road pavement bitumen in the Netherlands and submitted a request for immunity from fines in accordance with 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’).
On 1 October 2002, the Commission carried out surprise inspections at the premises of, in particular, the applicant. During that inspection, the applicant first refused to allow the Commission’s staff to enter the building until its external lawyers arrived and then denied them access to the office of one of its directors. The Commission therefore requested the assistance of the national authorities in order to carry out those investigations. The Commission’s staff drew up two reports on those incidents on 3 October 2002, which were sent to the applicant as part of the access to the file granted by the Commission on 19 October 2004.
The Commission sent requests for information to several companies, including the applicant, on 30 June 2003, to which the latter replied on 12 September 2003. On 10 February 2004, the Commission sent a further request for information, to which KVWS replied on 2 March 2004.
On 12 September 2003, Kuwait Petroleum submitted an application under the Leniency Notice, to which a corporate statement was attached. Shell Nederland Verkoopmaatschappij BV (‘SNV’) also submitted such an application on 10 October 2003, accompanied by a corporate statement and a statement by a retired former employee. In addition, in their replies to the statement of objections, Total and Nynas requested that their replies to the Commission’s request for information be taken into account under the Leniency Notice.
On 18 October 2004, the Commission initiated a proceeding and adopted a statement of objections, which was sent on 19 October 2004 to several companies, including KVWS, the applicant and Volker Wessels Stevin Infra.
Following the hearing of the companies concerned on 15 and 16 June 2005, Nynas and Kuwait Petroleum provided, on 28 and 30 June 2005 respectively, clarifications with regard to certain statements used by the Commission in the statement of objections and challenged during the hearing by other companies, which were forwarded to all the parties. The applicant responded to those documents on 26 August 2005. Similarly, it replied on 28 June 2005 to a request for information which followed on from an oral question put by the Commission at the hearing, and that reply was forwarded to all the parties on 24 May 2006. On 25 January 2006, the Commission sent a letter to all the parties, in order to provide explanations regarding a passage in the statement of objections relating to price fixing, to which the applicant replied on 16 February 2006. Finally, on 24 May 2006, the Commission forwarded to the applicant all the replies from the other undertakings to the statement of objections which it was intending to use as evidence against it, and the applicant submitted its comments on those documents on 12 June 2006.
III –
Contested decision
On 13 September 2006, the Commission adopted Decision C(2006) 4090 final relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 – Bitumen (Netherlands), ‘the contested decision’), a summary of which was published in the
Official Journal of the European Union
of 28 July 2007 (
OJ 2007 L 196, p. 40
), and which was notified to the applicant on 25 September 2006.
The Commission stated that the companies to which the contested decision was addressed had participated in a single and continuous infringement of Article 81 EC, by regularly fixing collectively, for the periods concerned, for sales and purchases of road pavement bitumen in the Netherlands, the gross price, a uniform rebate on the gross price for the road builders participating in the cartel (‘the large builders’ or ‘the W5’) and a smaller maximum rebate on the gross price for other road builders (‘the other builders’ or ‘the small builders’).
A fine of EUR 27.36 million was imposed on the applicant, jointly and severally with KVWS, for having committed that infringement for the period from 1 April 1994 to 15 April 2002.
As regards the calculation of the amount of the fines, the Commission described the infringement as very serious, given its nature, even though the relevant geographic market was limited (recital 316 of the contested decision).
In order to take account of the specific weight of the conduct of each of the undertakings involved in the cartel and of its real impact on competition, the Commission made a distinction between the undertakings concerned according to their relative importance in the relevant market, measured by their market shares, and grouped them into six categories.
On the basis of the foregoing considerations, the Commission applied a starting amount of EUR 9.5 million to the applicant (recital 322 of the contested decision). It considered that it was not necessary to apply a multiplier to it in order to ensure a sufficient deterrent effect of the fine, in view of the size and turnover of the Koninklijke Volker Wessels Stevin group (recital 323 of the contested decision).
As regards the duration of the infringement, the Commission took the view that the applicant had committed an infringement of long duration, namely an infringement of more than five years, and took as a basis a total period of eight years, from 1 April 1994 to 15 April 2002, thus increasing the starting amount by 80% (recital 326 of the contested decision). The basic amount of the fine, determined according to the gravity and duration of the infringement, was therefore fixed at EUR 17.1 million for the applicant (recital 335 of the contested decision).
The Commission applied several aggravating circumstances with regard to the applicant. In the first place, it took the view that, since the applicant was guilty of refusal to cooperate and of attempts at obstruction during the investigations carried out at its premises on 1 October 2002, an increase of 10% in the basic amount of the fine should be applied to it (recitals 340 and 341 of the contested decision). In the second place, it considered that the applicant had played the role of instigator and leader of the cartel, justifying a further increase of 50% in the basic amount of the fine (recitals 342 to 349 of the contested decision).
Moreover, the Commission considered that no attenuating circumstances could be found with respect to the applicant (recitals 350 to 360 of the contested decision).
Procedure and forms of order sought by the parties
By application lodged at the Registry of the Court on 5 December 2006, the applicant brought the present action.
Acting upon a report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, requested the parties to lodge certain documents and put questions to them. The parties complied with those requests within the prescribed period.
The parties presented oral argument and answered questions put to them by the Court at the hearing on 26 May 2011.
As a member of the Sixth Chamber was unable to sit, the President of the Court designated himself to complete the Chamber pursuant to Article 32(3) of the Rules of Procedure.
By order of 18 November 2011, the Court (Sixth Chamber), in its new composition, reopened the oral procedure and the parties were informed that they could present oral argument at a further hearing.
By letters of 25 and 28 November 2011 respectively, the applicant and the Commission notified the Court that they waived their right to present further oral argument.
Consequently, the President of the General Court decided to close the oral procedure.
The applicant claims that the Court should:
—
principally, annul the contested decision in so far as it applies to it;
—
in the alternative, annul Article 2 of the contested decision in so far as it concerns the applicant and substantially reduce the fine imposed on it;
—
order the Commission to pay the costs;
The Commission contends that the Court should:
—
dismiss the action;
—
order the applicant to pay the costs.
Law
The applicant claims, principally, that the contested decision should be annulled and, in the alternative, that the fine imposed on it by the Commission in that decision should be cancelled or reduced.
I –
Claim for annulment of the contested decision
A –
Introductory remarks
In support of its claim for annulment of the contested decision, the applicant raises three pleas in law, the first alleging errors of fact, the second alleging errors of law in the assessment of the requirements for the application of Article 81(1) EC and the third alleging infringement of an essential procedural requirement and of the rights of the defence on which it was entitled to rely.
1. Arguments of the parties
The applicant recalls that, according to settled case-law, the Commission must produce sufficiently precise and consistent evidence to establish an infringement of Article 81 EC and that any doubt in the mind of the Court must operate to the advantage of the undertaking (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 179, and Joined Cases T-44/02 OP, T-54/02 OP, T-56/02 OP, T-60/02 OP and
T-61/02 OP
Dresdner Bank and Others
v
Commission
[2006] ECR II-3567
, paragraphs 60 and 62). It submits that, in this case, the Commission failed to observe those principles in its assessment of the existence of the infringement and in the classification of the nature of the infringement. It wrongly placed on an equal footing the very serious infringement committed by the bitumen suppliers (‘the suppliers’), constituted by the price and market-sharing cartel, and the mere joint negotiating structure set up by the large builders, which was aimed only at responding to the suppliers’ cartel and at securing more advantageous purchase conditions. As a result of that erroneous assessment of the operation of the cartel, the Commission attached too much importance to the suppliers’ statements and disregarded evidence mentioned in the statement of objections, some of which was contemporaneous with the infringement.
The Commission rejects the applicant’s arguments.
2. Findings of the Court
It should first be recalled that, in accordance with the provisions of Article 2 of Council Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (
OJ 2003 L 1, p. 1
) and with the earlier case-law (Case
C-185/95 P
Baustahlgewebe
v
Commission
[1998] ECR I-8417
, paragraph 58, and Case
C-49/92 P
Commission
v
Anic Partecipazioni
[1999] ECR I-4125
, paragraph 86), the burden of proving an infringement of Article 81(1) EC rests on the authority alleging the infringement, that authority being required to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement. The Courts of the European Union have, moreover, held that, where there is doubt, the benefit of that doubt must be given to the undertaking accused of the infringement (see, to that effect, Case
27/76
United Brands and United Brands Continental
v
Commission
[1978] ECR 207
, paragraph 265) and that, under the presumption of innocence, the Court cannot therefore conclude that the Commission has established the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point, in particular in proceedings for the annulment of a decision imposing a fine (
JFE Engineering and Others
v
Commission
, cited in paragraph 28 above, paragraph 177). 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 and Others
v
Commission
, paragraph 180). In the context of the examination of this first plea in law, the Court must therefore examine whether the Commission held sufficient evidence of the existence of facts constituting an infringement of Article 81(1) EC.
Furthermore, the Court of Justice has stated that, where the Commission has succeeded in gathering documentary evidence in support of the alleged infringement, and where that evidence appears to be sufficient to demonstrate the existence of an agreement of an anti-competitive nature, there is no need to examine whether the undertaking concerned had a commercial interest in the agreement (Joined Cases
C-403/04 P and C-405/04 P
Sumitomo Metal Industries and Nippon Steel
v
Commission
[2007] ECR I-729
, paragraph 46). If this Court were to hold that the Commission has established the existence of an agreement of an anti-competitive nature, it would not then be required to deal with the arguments relating to the applicant’s commercial interest in the cartel.
Moreover, the applicant maintains that, in general, the Commission attached too much importance to the suppliers’ statements and that it therefore disregarded certain evidence. It must be pointed out, in that regard, that the Commission is not required, in the contested decision, to verify and respond to every allegation of the parties put forward during the administrative procedure, but it is required, in accordance with the provisions of Article 253 EC, to set out its reasoning in a clear and unequivocal fashion, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. Those requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and all the legal rules governing the matter in question (Joined Cases
296/82 and 318/82
Netherlands and Leeuwarder Papierwarenfabriek
v
Commission
[1985] ECR 809
, paragraph 19; Case
C-56/93
Belgium
v
Commission
[1996] ECR I-723
, paragraph 86, and Case
C-367/95 P
Commission
v
Sytraval and Brink’s France
[1998] ECR I-1719
, paragraph 63).
B –
Errors of fact
The applicant submits that the Commission made three errors of fact.
1. First error of fact, concerning the failure to take account of the opposition between the interests of the suppliers and those of the large builders
a) Arguments of the parties
The applicant points out that the suppliers and the large builders had diametrically opposite interests, the former seeking to increase selling prices and gain customers while attempting to secure the collaboration of the latter. It submits that the Commission has not demonstrated that the large builders pursued a common objective with the suppliers. It notes that several items of evidence, including an internal SNV note of 6 February 1995, proved that only the suppliers had established a cartel in the 1980s and that all of them participated in it, and that those facts were disregarded by the Commission. Similarly, it submits that other items confirm that the cartel established by the suppliers led to the collaboration between the large builders, which the Commission has not disputed, moreover. It points out that, by contrast, the collaboration between the large builders began only in the first half of the 1990s, when asphalt production was radically reorganised in the Netherlands, resulting in a significant reduction in the number of asphalt plants and the emergence of plants jointly owned by several large builders. The consultation meetings with the suppliers were also the inevitable consequence of a legislative change in the Netherlands, which led to the introduction, in 1990, in road construction tender specifications, of the certificate of origin rule requiring such a certificate to be obtained by builders.
It further complains that the Commission, with the objective of bolstering its theory of the existence of a bilateral cartel between suppliers and large builders, abandoned its investigations into the market sharing agreements concluded between the suppliers, even though the statement of objections contained numerous indicia in that regard, and even though it had itself produced numerous items of evidence relating to them. Similarly, the Commission disregarded several indicia relating to exchanges of confidential information concerning use of production capacities, customers and prices between suppliers, as well as the existence of cartels between those suppliers in other European countries. Finally, it points out that the large builders have never organised cooperation agreements for the purchase of any other raw materials.
The Commission rejects the applicant’s arguments.
b) Findings of the Court
The applicant submits that the Commission did not take account of evidence proving that all the suppliers had established a cartel in the 1980s, while the large builders took part in it, in response, only in the first half of the 1990s. It relies, inter alia, on an internal SNV note of 6 February 1995, seized by the Commission during the investigations and placed on the administrative file. It is clear from that document that an SNV employee carried out an analytical review of the road construction market in the Netherlands, in which he describes the situation of overcapacity in the market and the ‘origins of the cartel’ from 1980 onwards. He thus mentions the creation of ‘Nabit’, the professional organisation representing bitumen undertakings, in 1980, a period when bitumen prices were unstable, then the setting up of the ‘Star’ project, a cartel consisting of the five principal road builders and the principal suppliers, which ended in 1993, and lastly the fact that the large builders demanded greater price stability in 1995, so that the volumes and market allocation would return to approximately their 1993 levels. The document stresses, in conclusion, the share of responsibility borne both by the public authorities and by the large builders and the suppliers for the fact that certain agreements were concluded. However, that document does not, on its own, make it possible to establish clearly whether a cartel existed before 1994, or whether the suppliers imposed the cartel on the large builders.
Moreover, account must also be taken of other evidence mentioned in the contested decision. Thus, in another internal note of 9 February 1995, also seized by the Commission during the investigations and placed on the administrative file, two SNV employees describe the situation on the Netherlands road construction market and draw attention in particular to the existence of agreements on prices and markets between the large builders, which benefited from a specific rebate, and the suppliers, to the detriment of the contracting authorities and the other builders. Those employees describe the situation as ‘cooperation between two cartels’ and are aware that there is a risk of sanction by the Commission. They state that SNV attempted to put an end to that situation from 1992 onwards, but that it did not succeed, and examine the prospects of the situation changing and the associated risks (maintenance of the cooperation and partial or total termination of the cooperation). That document confirms the bilateral character of the cartel and, by contrast, invalidates the applicant’s theory that before 1994 a cartel existed only on the part of the suppliers, which imposed it on the large builders. Moreover, an internal report dated 20 February 1992, seized by the Commission during the investigations and placed on the administrative file, of Wintershall AG, a road pavement bitumen producer which was an addressee of the contested decision by which a fine of EUR 11.625 million was imposed on it, refers to contacts between SNV and the applicant, the latter having asked SNV, as ‘market leader’, to make some proposals for cooperation between the suppliers and the W5, amounting to a purchasing monopoly. The document states that Wintershall had pointed out to the applicant, during a visit by the latter to its premises on 18 February 1992, that that step was problematical under cartel law. The applicant tried to call into question the credibility of that document by stating that it had little commercial contact with Wintershall and that it was not very credible that it would have passed on to its interlocutor information that was so confidential. Nevertheless, it does not appear very plausible that Wintershall would have deliberately reproduced incorrect information in a purely internal report of 1992. In any event, the mere fact, if proved, that the applicant had little commercial contact with Wintershall cannot suffice to call into question the evidential value of that document.
The Court therefore takes the view that several concordant documents dating from the time of the infringement or from the period immediately preceding it permitted the inference by the Commission that the cartel had not originated in an earlier cartel established by the suppliers and that the latter had not imposed it on the large builders.
The applicant further complains that the Commission, despite the numerous indicia mentioned in the statement of objections, abandoned the investigations into market sharing agreements allegedly concluded by the suppliers in the Netherlands, into regular exchanges of confidential information between the suppliers, relating to use of production capacities, customers and prices, and into the existence of cartels in other European countries concluded by those suppliers.
It must, first of all, be pointed out that (i) the existence of possible other cartels between the suppliers is not incompatible with the theory of the existence of a bilateral cartel between those suppliers and the W5 and that (ii) the Commission did not rule out the possibility that the large builders participated in other agreements with the suppliers (points 174 and 175 of the statement of objections).
Moreover, it cannot be held against the Commission, in this action, that it did not include other possible agreements in the contested decision. Such an argument, even if well founded, cannot have a bearing on the lawfulness of the contested decision.
In any event, it is necessary to recall the preliminary nature of the statement of objections, the function of that document, as defined by the European Union regulations, being to give undertakings all the information necessary to enable them properly to defend themselves, before the Commission adopts a final decision (Case
T-352/94
Mo och Domsjö
v
Commission
[1998] ECR II-1989
, paragraph 63; Case
T-308/94
Cascades
v
Commission
[1998] ECR II-925
, paragraph 42, and Case
T-86/95
Compagnie générale maritime and Others
v
Commission
[2002] ECR II-1011
, paragraph 442). Although the Commission must thus base its final decision only on objections on which the parties have been able to comment (Article 27(1) of Regulation No 1/2003), it is not required to reproduce all the evidence set out in the statement of objections, particularly if that evidence appears insufficient. Consequently, the decision does not necessarily have to be an exact replica of the statement of objections (Joined Cases
209/78 to 215/78 and 218/78
van Landewyck and Others
v
Commission
[1980] ECR 3125
, paragraph 68).
As regards the applicant’s argument that the setting up of the cartel on the part of the large builders in the 1990s was a reaction to the restructuring of the asphalt market by the Netherlands public authorities (introduction of a certificate of origin in the tender specifications for road construction contracts, making any change of supplier during a calendar year difficult, decrease in the number of asphalt plants and setting up of plants owned jointly by several large builders), it must be pointed out that the applicant has not stated the reason why those developments in national legislation led to the W5 setting up the cartel. According to the case-law, in the absence of any binding regulatory provision imposing anti-competitive conduct, the Commission is entitled to conclude that the operators in question enjoyed no autonomy only if it appears on the basis of objective, relevant and consistent evidence that that conduct was unilaterally imposed upon them by the national authorities through the exercise of irresistible pressures, such as, for example, the threat to adopt State measures likely to cause them to sustain substantial losses (Case
T-66/99
Minoan Lines
v
Commission
[2003] ECR II-5515
, paragraphs 176 to 179). In the present case, the applicant has not provided any evidence which would permit the inference that the conduct alleged against it had its origin in the Netherlands national legislation.
Finally, the fact, if proved, that the large builders never organised cooperation agreements for the purchase of other raw materials has no bearing on the existence of the present infringement.
It must therefore be concluded that the Commission did not make any error of assessment in regard to the interests of the suppliers and those of the large builders.
2. Second error of fact, concerning the content of the agreements between the suppliers and the large builders
a) Arguments of the parties
The applicant submits that the Commission wrongly assessed the content of the agreements concluded between the suppliers and the large builders. Thus, firstly, the suppliers alone were always behind the increases in the gross price of road pavement bitumen in the Netherlands (‘the gross price’), the large builders having succeeded on only one occasion, in March 2000, in challenging the increase announced by the suppliers. It is apparent from numerous documents in the file, and in particular from the statements of Kuwait Petroleum and Nynas, bitumen suppliers which were addressees of the contested decision by which fines of EUR 16.632 and 13.5 million respectively were imposed on them, that the suppliers alone always took the initiative for a price increase and summoned the large builders in order to impose it on them. Secondly, the specific rebate granted by the suppliers to the W5 was regarded as commercially justified on the basis of the quantities of bitumen purchased by those companies and it was only a starting point for the individual negotiations conducted by each builder with each supplier. Thirdly, the applicant reiterates that numerous documents in the administrative file demonstrate that the small builders behaved in the same manner as their larger competitors in their negotiations with the suppliers, demanding the lowest prices, and that the W5 suspected that the suppliers were granting them a larger rebate. The reaction of the W5, when, in 2000, it discovered that the small builders had received a rebate equivalent to theirs, was to demand individually or collectively (although that was the case on only one occasion), a larger rebate from the suppliers. In any case, the applicant asserts that the W5 had no way of verifying the suppliers’ compliance with their commitment, or even of penalising them if they granted higher rebates to the small builders. Fourthly, the applicant states that the Commission gives the misleading impression that the rebate granted to the W5 was always increasing, whereas, in 2002, it had returned to the 1994 level and, by contrast, the increase in the gross price was continual during the period of infringement.
The Commission rejects the applicant’s arguments.
b) Findings of the Court
With regard, firstly, to the argument that several documents prove that the suppliers alone were behind the increase in the gross price, that the rebate granted to the W5 depended solely on the quantities purchased, and that the large builders were able to renegotiate that rebate individually with each supplier, just as the small builders did, it is necessary to take into account the agreements concluded between the W5 and the suppliers as a whole, since they cover the gross price, the minimum rebate granted to the W5 and the maximum rebate applicable to the small builders.
In the first place, several documents cited in the contested decision confirm that agreements were concluded between the two parties on the gross price, which, contrary to what the applicant maintains, was not fixed unilaterally by the suppliers and imposed on the larger builders. Thus, an internal memo dated 8 July 1994 of Hollandsche Beton Groep (‘HBG’), a road builder in the Netherlands and an addressee of the contested decision by which a fine of EUR 7.2 million was imposed on it, mentions agreements between the W5 and the oil companies on the gross price until 1 January 1995 (recital 94 of the contested decision). Moreover, the internal SNV note of 9 February 1995 also mentions agreements on prices concluded between the W5 and the suppliers (recital 89 of the contested decision). Similarly, an SNV note of 14 July 2000 makes reference to collective agreements on the gross price concluded between the suppliers and the W5 in 1995 (recital 90 of the contested decision). Furthermore, the applicant’s notes relating to meetings on 12 March and 14 September 1999 set out the results of those consultations as regards the gross price and the rebate granted to the W5 (recitals 104 and 106 of the contested decision). HBG memos of 1999 and 2000 also refer to agreements on price increases and compensation and to the rejection by the W5 of the suppliers’ proposed price increase for 1 April 2000 (recitals 107 and 110 of the contested decision). Notes from HGB and the applicant refer, moreover, to a meeting of 1 March 2001, during which the suppliers wished to lower the gross price whereas the W5 preferred to keep the existing gross price (recitals 115 and 116 of the contested decision). Finally, in its reply of 12 September 2003 to a Commission request for information, as in its reply of 20 May 2005 to the statement of objections, the applicant admitted that the suppliers and the W5 had concluded agreements based on the gross price proposals made by the suppliers (recital 97 of the contested decision).
The Kuwait Petroleum statements of 12 September, 1 October and 9 October 2003 and the Nynas statement of 2 October 2003 (recital 70 of the contested decision), cited by the applicant, give no grounds for calling into question the conclusion that the gross price was not fixed unilaterally by the suppliers and imposed on the large builders. Indeed, those statements demonstrate only the existence of pre-meetings between the suppliers during which the latter agreed on price proposals which would be made to the large builders at the cartel meetings.
In the second place, the contested decision makes reference to numerous documents which confirm that the negotiations between the suppliers and the large builders also covered the rebate granted to the W5 and the maximum rebate granted to the other road builders. That is true of, for example, the applicant’s reply of 12 September 2003 to a Commission request for information, in which the Commission stated that the discussions between the suppliers and the large builders concerned both the ‘list prices’ and ‘the standard rebates’ (recital 72 of the contested decision). Similarly, an internal HBG memo of 24 February 1994 also shows the importance which the large builders attached to obtaining a rebate not granted to the small builders and to preventing the rebate from being applied to all builders (recital 95 of the contested decision). In addition, an internal HBG report of 14 September 1999 makes a summary of the agreements on ‘increases and compensations’ of 1999 concluded between the W5 and the suppliers (recital 107 of the contested decision). Kuwait Petroleum’s reply of 16 September 2003 to a Commission request for information also states that the consultation meeting of 27 March 1998 had enabled discussion of the gross price and the rebates (recital 103 of the contested decision). An internal note of the applicant relating to a meeting of 12 March 1999 also makes reference to the gross price and to the rebate agreed for the W5 (recital 104 of the contested decision). Notes from HBG and the applicant refer, moreover, to the meeting of 1 March 2001, specifying the agreed gross price, the rebate granted to the W5 and that granted to the other builders (recital 116 of the contested decision). An internal note of the applicant of 23 May 2001, confirmed by its reply of 12 September 2003 to a request for information, also mentions the gross price and the rebate granted to the W5 (recital 119 of the contested decision). In its reply to the statement of objections, the applicant, quoting one of its employees, likewise stated that ‘[i]ncreases of the standard price were not a problem, as long as the rebates did not remain behind’ (recital 149 of the contested decision). Finally, an SNV analysis of 9 February 1995 shows the importance to the W5 of benefiting from a larger rebate than that granted to the small builders (recital 153 of the contested decision).
Those various items of evidence prove that the agreements concluded between the large builders and the suppliers covered both the gross price and the specific rebate granted to the W5. The fact, if proved, that differences of opinion and disputes may have arisen as regards the level of that price and of the rebates during those negotiations between the suppliers and the large builders is not sufficient to prove the applicant’s assertion that the suppliers imposed the gross price increases on the W5.
With regard, secondly, to the applicant’s argument that the rebate granted to the W5 was commercially justified on the basis of the quantities purchased, it is necessary to examine the quantities purchased individually by each member of the W5, and not the total quantity purchased by all of its members. It is thus apparent from the contested decision that the small builders did not benefit from the same rebate as the members of the W5, even though, individually, they sometimes purchased larger quantities of bitumen than the members of the W5. Thus, in a statement made on 12 July 2002, a BP employee indicated that the suppliers often failed to apply the agreements concluded with the W5 by granting a larger rebate to certain small builders which purchased larger quantities of bitumen from them. The Commission had in fact already replied to that argument in recital 157 of the contested decision, by further pointing out, on the one hand, that the large builders themselves had admitted that, in general, they negotiated an additional rebate based on quantities purchased individually and, on the other, that the existence of a system of sanctions in the event that the small builders were granted a higher rebate than that laid down in the agreements (even assuming, as the applicant asserts, that that system was used only once) constituted further evidence that the rebate granted to the W5 was not proportionate to the volumes purchased. It is apparent, moreover, from an internal HBG document of 23 December 1999 that the rebate granted to the W5 at the consultation meetings was explicable ‘in view of the total volume and the lead over non-participants’ (recital 108 of the contested decision). Those various items of evidence, as well as the importance attached by the W5 to the level of their rebate at the cartel meetings (see paragraph 52 above), permit the inference that the applicant has not proved that the rebate granted to the W5 was dependent on volumes purchased.
Thirdly, it must be pointed out that the applicant cannot rely on the fact that the small builders behaved in the same way as their larger competitors in their negotiations with the suppliers by demanding the lowest prices, since, under competition law, the position of an undertaking which negotiates its prices with a supplier individually is different from that of undertakings which act collectively.
Furthermore, with regard to the applicant’s assertion that the W5 had no means of verifying the suppliers’ compliance with their commitments, it must be noted that several concordant items of evidence prove that the W5 had set up a system of sanctions in the event that the suppliers granted the small builders a higher rebate than that laid down (see also paragraphs 94 to 96 below). Indeed, it is apparent from the contested decision that the Commission took as its basis several concordant items of evidence which refer to individual or – on at least one occasion – collective financial sanctions imposed by the W5 on suppliers granting too high a rebate to small builders and to changes of supplier where such a rebate was discovered (recitals 82 to 86 of the contested decision). Thus, an internal Wintershall report dated 4 March 1996 of a visit to the construction company Heijmans NV mentions such sanctions in relation to 1995 (recital 82 of the contested decision). Similarly, an HBG report of the consultation meeting of 14 September 1999 records some questioning about the large rebate granted to two small builders (recital 83 of the contested decision). As regards the year 2000, the applicant itself and BP mention a collective fine imposed on the suppliers following the discovery of the rebate given to Krekel, a small builder (recital 84 of the contested decision). In their statements, Kuwait Petroleum and BP also confirmed the system of sanctions which was applied if it was discovered that too large a rebate had been granted to a small builder (recitals 85 and 86 of the contested decision). The internal SNV memorandum of 9 February 1995 also mentions a threat to cut down on bitumen orders if undermining price offers were made to non-W5 builders (recital 86 of the contested decision). Finally, in a document relating to a consultation meeting of 4 May 2001, the applicant also mentions a fine imposed on Nynas because of its price policy (recital 117 of the contested decision), which was confirmed by Kuwait Petroleum in its statement of 12 September 2003 (recital 118 of the contested decision).
With regard, fourthly, to the applicant’s argument that the bitumen price increased continuously during the period of the infringement, whereas the rebate granted to the W5 returned in 2002 to its 1994 level, that argument has no factual basis. It is apparent from Annex 1 to the contested decision that the gross price fluctuated a great deal from 1994 to 2002 and did not consistently increase, since decreases also took place regularly. As regards the trend of the specific rebate granted to the W5, it is apparent from the documents mentioned in recitals 93 to 125 of the contested decision that it generally followed the increases in the gross price and thus continually increased during the period from 1998 to 2000, returning in 2002 to a level close to that of 1994 (60 Dutch guilders (NLG) in 2002, NLG 50 in 1994). The applicant cannot, therefore, maintain that the rebate granted to the W5 had grown proportionally less than the increase in the gross price.
It follows from all of the foregoing that the Commission did not make any error of assessment regarding the content of the agreements between the suppliers and the large builders and that this second argument must be rejected.
3. Third error of fact, concerning the erroneous assessment of the large builders’ interest in the cartel
a) Arguments of the parties
The applicant submits that the Commission made an error of assessment regarding the W5’s interest in the cartel. Thus, in the contested decision, the Commission, first, abandoned the theory put forward in the statement of objections, according to which the W5 had an interest in keeping the gross price artificially high and, secondly, put forward a new theory. According to the Commission, which relied on an SNV note of 6 February 1995, the members of the W5 had an interest in bitumen prices increasing simultaneously and substantially, in order to bring about a rise in the index established by a not-for-profit organisation responsible for publishing road pavement bitumen prices, but they also derived benefit from a decrease in bitumen prices provided that such a decrease was gradual and spread over time. Indeed, such a decrease would not have resulted in a fall in the index in question and would have enabled them not to pass on that fall to the contracting authorities. The applicant, while claiming not to have a detailed knowledge of the method of determining that index, states that it knows that that index was revised monthly on the basis of the data concerning all purchase prices, which were collected directly by the organisation responsible for compiling it and individually from a number of asphalt plants, and that it found that the actual trend of that index did not support the Commission’s theory. It also states that the large builders did not object to a lowering of the gross bitumen price at the meeting on 12 April 2000, but that, following their attempt to withdraw from the consultation meetings with the suppliers, the latter had threatened them with concomitant reductions in the gross price and in the rebate which they were granted, to which they had objected. Indeed, the same phenomenon recurred in March 2001. Moreover, it points out that a price increase occurring in the course of the road building season presented only disadvantages for a builder, since only 5% of building sites included a compensation clause linked to the trend of raw material prices. It further points out that it was sometimes possible for a builder to pass on that bitumen price increase in the absence of any specific clause, but that that possibility applied to all builders, including the small builders. Finally, it states that price increases occurring at the start of the road building season could be passed on more easily and that all builders therefore had an interest in price stability during the course of that season, even though the suppliers wished to increase their prices at any time.
The Commission rejects all of the applicant’s arguments.
b) Findings of the Court
The Courts of the European Union have already held that participants in the same cartel may have complementary economic interests (Joined Cases
T-217/03 and T-245/03
FNCBV and Others
v
Commission
[2006] ECR II-4987
, paragraph 322). In the present case, the Commission took the view that the suppliers and the W5 had a common interest in the existence of agreements on the gross price and the rebates, since such agreements had the effect of restricting competition both on the suppliers’ side and on the large builders’ side. The applicant submits that the Commission made an error of assessment concerning the W5’s objective, which was not to harm the final consumer, but to limit the effects of the price increases imposed by the suppliers.
It must be recalled, first of all, in accordance with paragraph 31 above, that there is no need to consider whether the undertaking concerned had a commercial interest in those agreements where the Commission has succeeded in gathering documentary evidence in support of the alleged infringement, and where that evidence appears to be sufficient to demonstrate the existence of an agreement of an anti-competitive nature (
Sumitomo Metal Industries and Nippon Steel
v
Commission
, cited in paragraph 31 above, paragraph 46). The Court will therefore examine the question of an erroneous assessment of the W5’s objective only as a secondary matter.
As a preliminary point, it is appropriate to outline briefly the functioning of the Centrum voor regelgeving en onderzoek in de grond-, water- en wegenbouw en de Verkeerstechniek (CROW, Centre for Civil Engineering and Traffic Regulations and Research), a not-for-profit organisation which had been responsible, in particular, for publishing road pavement bitumen prices monthly since the 1970s (recitals 25 and 26 of the contested decision), on the basis of information on which the parties have agreed.
The road pavement bitumen price was published by the CROW, after consultation with the asphalt producers, until 1 November 1995. After that date, the calculation was made by the CBS (Central Bureau for Statistics), a governmental organisation, on the basis of a market scan covering a number of asphalt plants, namely before the application of any rebate to the builders, and that price index, published by the CROW (‘the CROW index’), served as a reference for long-term road construction contracts containing a risk settlement clause. Under such contracts, in the event of an increase in the CROW index beyond a certain threshold, the contracting authorities were required to compensate the builders. Conversely, in the event of a decrease in the CROW index, the builders were to compensate the contracting authorities. It follows that the builders were therefore not disadvantaged by a rise in prices where those prices increased simultaneously, thereby causing the CROW index to increase. On the other hand, the builders had no interest in a fall in prices, which, if it resulted in a fall in the CROW index, obliged them to repay the price differential to the other contracting party.
The applicant, while maintaining that it did not know precisely the mechanism for calculating the CROW index, produced before the Court a document recording the actual trend of that index between 1997 and 2005, maintaining that it invalidated the theory set out by the Commission in recitals 25 and 26 of the contested decision, according to which the suppliers increased their prices simultaneously and substantially and lowered them only very gradually. However, that document does not provide any indication as to whether the prices increased simultaneously and decreased in piecemeal fashion. It shows only that, in the period from 1997 to 2005, the CROW index relating to the bitumen price continually increased, except for the period from February 1998 to April 1999. Annex 1 to the contested decision in fact confirms that, over the entire period of infringement, the gross price of road pavement bitumen increased by NLG 253. Accordingly, the Court is of the view that the examination of the operation of that index confirms the Commission’s explanation that, in the case of contracts including a risk settlement clause, builders were not penalised by a rise in prices and, on the other hand, had no interest in a fall in prices. However, in order to be able to assess the W5’s interest in the cartel, it is not essential to establish the exact mechanism by which that index was calculated, which is a matter of dispute between the parties.
The applicant further disputes the Commission’s assertion that the large builders objected to a decrease in the gross price of bitumen in 2000 and 2001. However, it is apparent from the notes taken by an employee of the applicant at the cartel meeting of 12 April 2000, to which the Commission refers in recital 111 of the contested decision, that the large builders were concerned about a decrease in the gross price which would cost them a lot of money, as a result of a fall in the CROW index. The applicant states that that document should be viewed in its context, namely that the large builders had told the suppliers that they wished to withdraw from the cartel, to which the suppliers had responded by threatening drastically to reduce the gross price and the specific rebate which the builders were granted. However, that assertion is not supported by any evidence and, in any event, does not permit the inference that the Commission made an error of assessment by taking the view that the large builders did not wish to see either bitumen prices or their specific rebate decrease.
So far as 2001 is concerned, the Commission stated, in recitals 115 and 116 of the contested decision, that it was apparent from documents from HBG and the applicant that the suppliers wished to reduce the gross price due to the price differential with neighbouring countries, whereas the W5 had proposed maintaining the gross price and increasing its rebate, and that it was finally decided to reduce the gross price slightly (– NLG 20) and to maintain the rebate at a high level (NLG 80). In that regard, the applicant submits that the Commission made an error of assessment as to the facts, since it is apparent from those documents that the suppliers wished to maintain the price level after rebate, but wanted to reduce both the gross price and their rebate. However, it must be pointed out that the Commission used those documents to prove that the large builders had no interest either in a decrease in the gross price or in a decrease in their specific rebate and that they were not, therefore, mere victims of the suppliers.
The applicant attempts to minimise the importance of the CROW index by stating that only 5% of public contracts contained a compensation clause linked to the movement of the price of raw materials. The Commission points out that, according to another W5 builder, 10 to 15% of public contracts contained such a clause. In any event, the Court notes that it is apparent from numerous documents that this question was the subject of discussions at cartel meetings (recitals 94 (HBG memo of 8 July 1994), 101 (internal BP note of 1996), 107 (HBG report of 14 September 1999), 111 (applicant’s notes of 12 April 2000) and 115 (HBG notes of 16 February 2001) of the contested decision), and can thus be considered a central element of the negotiations, regardless of the number of public contracts concerned. Moreover, the applicant itself made reference to that type of clause in its reply of 12 September 2003 to a request for information of 30 June 2003, stating that it had been granted a specific rebate for works for which no imputation had been contractually agreed in the event of an increase in the bitumen price.
Furthermore, the applicant states, firstly, that, although it was sometimes possible for a builder to pass on an increase in the bitumen price to the contracting authority in the absence of a risk settlement clause, that possibility applied to all builders, including small builders, and, secondly, that a price increase occurring at the start of the season could be passed on more easily by all the builders and that they all therefore had an interest in price stability during the season. However, that argument cannot suffice to call into question the Commission’s assessment concerning the W5’s interest in the cartel. Indeed, under competition law, a distinction must be made between, on the one hand, negotiations conducted bilaterally between two undertakings and, on the other, collective price agreements and collectively agreed specific rebates. The fact that the small builders also had an interest in price variations occurring at the start of the road building season is not sufficient to neutralise the negative impact, under the competition rules, of the larger rebate granted to the W5.
Finally, it must be pointed out that the applicant itself stated in its reply to the statement of objections that the members of the W5 were able to accept a rise in the gross price provided that they obtained a larger rebate than the small builders (recital 149 of the contested decision).
It is clear from all of the foregoing that the suppliers and the W5 had a common interest in the existence of agreements on the gross price and on rebates and that the interest of the large builders is explained both by the mechanism of risk settlement clauses in public contracts and by the specific rebate from which they benefited, which gave them a competitive advantage over the small builders in obtaining public contracts. Consequently, the Commission did not commit any error of assessment as to the interest of the W5 in the cartel.
4. Fourth error of fact, concerning the absence of impact of the cartel on competition in the road construction market
a) Arguments of the parties
The applicant complains that the Commission considered that the price of bitumen was a very significant cost factor for road construction undertakings, even though the applicant had stated in its reply to the statement of objections that the cost of purchasing bitumen represented only around 1.5% of the total cost of a road building site and that other builders which were W5 members confirmed that figure to the Commission. Since the price differentials resulting from the specific rebate amounted to only 1%, it assumes that the Commission maintained that incorrect assertion only in order to demonstrate the bilateral nature of the cartel. Moreover, it submits that the fact that the large builders demanded a large rebate was merely part of their purchasing strategy and did not constitute an instrument for limiting competition. Lastly, it submits that the Commission cannot introduce an item of evidence at the judicial proceedings stage.
The Commission disputes the applicant’s arguments.
b) Findings of the Court
First of all, it must be borne in mind that the anti-competitive object and effect of an agreement are not cumulative but alternative conditions for assessing whether such an agreement comes within the scope of the prohibition laid down in Article 81(1) EC. The alternative nature of that condition, indicated by the conjunction ‘or’, leads first to the need to consider the precise object of the agreement, in the economic context in which it is to be applied. Where, however, the analysis of the content of the agreement does not reveal a sufficient degree of harm to competition, the effects of the agreement should then be considered and, for it to be caught by the prohibition, it is necessary that factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent. It is not necessary to examine the effects of a decision once its anti-competitive object has been established (Joined Cases
C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P
GlaxoSmithKline Services and Others
v
Commission
[2009] ECR I-9291
, paragraph 55). In the present case, the Commission was therefore only required to establish that the agreements had as their object the prevention, restriction or distortion of competition, and it was not required to demonstrate the actual anti-competitive effects of those agreements.
It is apparent from the contested decision that the Commission took the view that the agreements fixing the gross price of bitumen, a minimum specific rebate granted to the W5 and a maximum rebate granted to the small builders were intended to undermine competition in the road construction sector and that there was therefore no need to take into account the actual effects of those agreements in order to determine whether they were caught by the prohibition laid down in Article 81(1) EC (recitals 155 to 160). The Commission therefore examined the effects of those agreements, in recitals 79 to 86 and 169 to 174, only as a secondary question.
The applicant submits that the Commission made an error of assessment as to the impact of the cartel on the road construction market, in particular because the cost of purchasing bitumen as a proportion of the total cost of a building site is small (1.5%). The Commission calls that figure into question, noting that the applicant used a very broad method of calculation and that a public document of the Netherlands statistical office drew attention, in 2006, to the impact of the price of bitumen on the costs of road works. The applicant disputes the admissibility of that document as evidence, since it was adduced only at the judicial proceedings stage.
Without there being any need to rule on the admissibility of that document, it is sufficient to observe that, in this case, the Commission relied on other evidence in order to establish that the specific rebate granted to the W5 had an impact on competition in the road construction sector. In the contested decision, without putting a figure on the share of the cost of bitumen in road construction, it nevertheless pointed out that ‘[w]hat was important to the W5 was not so much the absolute level of the net price of bitumen as the fact that they would have a relative advantage compared to road builders that were not part of the W5’, since that relative advantage could ‘allow them to win bids for public tenders for works with a relatively high consumption of bitumen’ (recitals 70 and 153 of the contested decision). That assertion is based on several concordant documents in the administrative file. In the first place, in its reply to the statement of objections, the applicant thus stated that ‘the net prices of bitumen therefore represent[ed] the real production cost of bitumen to the individual road builder’ and that, ‘[f]or the latter, those prices [were] therefore the starting point for the calculation of the production cost of one tonne of asphalt as a component of a road building site’. In the second place, in its internal note of 9 February 1995, SNV had emphasised that the W5 ‘attached great importance to the availability of the lowest purchase prices in comparison with the competitors’, the absolute price level being much less important. In the third place, in its statement of 9 October 2003, Kuwait Petroleum pointed out that the large builders were in a position to know whether a supplier had failed to implement the cartel agreements by offering a larger rebate to a small builder thanks to Cobouw, a Dutch daily newspaper publishing tenders and the results of tenders in the construction sector in the Netherlands (recital 70 of the contested decision). Finally, in a report, dated 31 October 2001, of a visit to Van Kessel, a small builder, Veba, a supplier, confirmed that the most important thing for that builder was not the absolute price, but to obtain the lowest possible price.
The Court therefore takes the view that that evidence proves that the specific rebate granted to the W5 had an impact on competition in the road construction sector, without there being any need to rule on the exact share of the cost of bitumen in the total cost of a road building site.
The applicant further submits that the fact that the large builders demanded a large rebate was merely part of their purchasing strategy, which was effective, but which did not constitute an instrument for limiting competition. It must however be borne in mind that, under competition law, collective price agreements and collectively agreed specific rebates are in principle prohibited and do not fall within the scope of a mere commercial strategy, in contrast to mere commercial negotiations conducted bilaterally between two undertakings.
It is clear from the foregoing that the Commission did not make any error of assessment as to the impact of the cartel on the road construction market.
5. Fifth error of fact, concerning the operation of the cartel: origin and development over time of the cartel and system of sanctions
a) Arguments of the parties
The applicant submits that the Commission made three errors of fact relating to the operation of the cartel.
In the first place, whereas several concordant statements by suppliers (BP, Kuwait Petroleum and Nynas) and an internal document of the applicant prove that the initiative for the cartel lay with the suppliers alone, the Commission chose to cite the contrary statements of SNV in the contested decision.
In the second place, the Commission was mistaken about the development over time of the cartel. Thus, no discussion took place between the W5 and the suppliers before 1996, the date from which meetings took place; these meetings were merely formalities, since they did not differ from bilateral discussions between a supplier and an individual purchaser, in particular from those conducted by each small builder. It was only from 1999 onwards that the situation changed, since the W5 considered it appropriate to adopt a common position before each meeting with the suppliers because of the steep movement of bitumen prices and because of the discovery of a large rebate granted to the small builders.
In the third place, the Commission incorrectly assessed the role of the large builders in the application of the system of sanctions. They only once, in April 2000, demanded an extra collective rebate following the discovery of a large rebate granted to the small builders. On that occasion, ExxonMobil, which the Commission did not however consider to form part of the cartel, also granted an extra rebate to the W5. The Commission has no evidence that a system of sanctions was implemented on another occasion. Moreover, several documents in the Commission’s file show that the small builders also demanded to benefit from the lowest prices after rebates on the market.
The Commission disputes all those arguments.
b) Findings of the Court
With regard to the first argument concerning the evidence relating to the origin of the cartel, the Commission relied on a number of concordant documents in order to attribute the origin of the cartel jointly to the suppliers and the large builders. A preliminary point to note is that the suppliers’ statements mentioned in recital 70 of the contested decision and on which the applicant seeks to rely concern only the pre-meetings of the suppliers and that they do not provide any evidence as to the origin of the cartel.
On the other hand, a number of documents contemporaneous with the start of the cartel support the Commission’s view that the W5 was interested in setting up the cartel in the same way as the suppliers. Thus, in the internal SNV note of 6 February 1995, mention is made of the large builders’ concern about the instability of bitumen prices in 1994, which ‘endangered [the] CROW price and tenders’. Moreover, an internal SNV note of 9 February 1995 confirms the bilateral nature of the cartel, which it describes as ‘cooperation between two cartels’. Similarly, a Wintershall report of 20 February mentions the fact that the applicant contacted SNV to ask it to make proposals on the possibilities of future cooperation between the suppliers and the W5. Finally, in an internal memo of 8 July 1994, HBG records its concern about the decision of the suppliers not to adhere to the agreements concluded in March 1994.
In the Court’s view, the Commission correctly considered that those documents proved that the W5 was, together with the suppliers, behind the cartel. The instructions of the applicant’s secretariat, on which the applicant seeks to rely, which indicate that the initiative for the consultations of the large builders with the suppliers came from SNV, and which relate more to the question of the identity of the cartel leader, cannot, on their own, call into question the conclusion drawn from the examination of the abovementioned documents.
In the second argument, the applicant complains that the Commission wrongly assessed the development of the cartel over time. However, it is apparent from the contested decision that a number of concordant items of evidence demonstrate the existence and development of the infringement from 1994 to 2002 (recitals 93 to 126).
Thus, for 1994 and 1995, the Commission refers to evidence proving the existence of agreements between the suppliers and the W5 and the implementation of those agreements (recitals 93 to 99 of the contested decision).
Furthermore, according to the contested decision, although the mechanism for concluding those agreements was modified in 1996, since from that date onwards SNV and the applicant were no longer solely responsible for concluding an agreement on behalf of all the participants in the cartel, that organisational change did not affect the matters covered by the cartel (recital 100).
Similarly, there is nothing which permits the inference that the nature of the cartel meetings changed in 1999, and in particular that it was only from that date onwards that the large builders met to prepare the meetings with the suppliers. Thus, it is apparent from, inter alia, the applicant’s reply of 12 September 2003 to a request for information that the W5 members met immediately before (or after) consultation meetings with the suppliers in order to prepare (or evaluate) collectively the consultation meeting (recital 72 of the contested decision). Several suppliers also confirmed that the large builders met before the cartel meeting in order to prepare it (recitals 73 to 75 of the contested decision). Moreover, the fact that relations between the two groups became more tense from 1999 onwards has no bearing on the characterisation of those meetings under competition law. Finally, the applicant’s argument seeking to characterise the meetings which took place in the early years of the cartel as mere bilateral discussions between suppliers and purchasers must be rejected, since collective price agreements and collectively agreed specific rebates cannot be compared to commercial negotiations conducted bilaterally between two undertakings.
As regards the third argument, the applicant submits that the Commission overestimated the role played by the W5 in the system of sanctions, since it took action only once, in 2000. It further submits that the W5’s regular threats to change suppliers constituted an identical commercial attitude to that adopted by the small builders.
However, it is apparent from the contested decision that the Commission correctly based its assessment on a number of concordant documents which refer to individual or — on at least one occasion — collective financial sanctions imposed by the W5 on suppliers granting too large a rebate to small builders and to changes of supplier where such a rebate was discovered. Thus, an internal Wintershall report dated 4 March 1996 of a visit to Heijmans mentions such sanctions in 1995 (recital 82 of the contested decision). Similarly, an HBG report of a consultation meeting on 14 September 1999 records questioning about the large rebate granted to two small builders (recital 83 of the contested decision). With regard to 2000, the applicant itself and BP mention a collective fine imposed on the suppliers following the discovery of the rebate given to Krekel, a small builder (recital 84 of the contested decision). Kuwait Petroleum also confirmed the system of sanctions in its statements of 9 October 2003 (recital 85 of the contested decision). BP likewise stated, on 16 September 2003, in reply to a request for information, that the applicant had stopped sourcing supplies from Veba in 2002 following the discovery of a large rebate given to a small builder (recital 86 of the contested decision). The internal SNV memorandum of 9 February 1995 also mentions a threat of cutting down bitumen supplies if undermining price offers were made to non-W5 large builders (recital 86 of the contested decision). In its statement of 12 September 2003, Kuwait Petroleum confirmed that, if a supplier granted a small builder a higher rebate than that agreed, the W5 threatened to stop sourcing from that supplier (recital 86 of the contested decision). Finally, in a document relating to the consultation meeting on 4 May 2001, the applicant also mentioned a fine imposed on Nynas because of its price policy (recital 117 of the contested decision), which was confirmed by Kuwait Petroleum in its statement of 12 September 2003 (recital 118 of the contested decision). The fact that Nynas stated, in its written reply to certain questions put by the Commission, that a collective sanction was imposed only once is not sufficient to cast doubt on the existence of an individual sanction adopted against it.
The Commission correctly considered that those documents were specifically referring to the mechanism of the collective fine imposed on the suppliers by the W5 in respect of 2000. Moreover, they show, in their entirety, that there was an individual and collective system of sanctions in the event of non-compliance with the agreements of the cartel throughout its duration. The sanctions consisted either of a cessation of orders to the supplier who infringed those agreements, or of a fine imposed on the culpable supplier or on all the suppliers.
It is therefore apparent from all of the foregoing that the Commission did not make any error of assessment as regards the origin of the cartel, its development over time and the system of sanctions.
6. Sixth error of fact, relating to the role of ExxonMobil in the cartel
a) Arguments of the parties
The applicant submits that the Commission made an error of fact by abandoning all reference to ExxonMobil in the contested decision even though, in the statement of objections, it had considered that ExxonMobil had fully complied with the cartel agreements, of which it was regularly informed. For example, ExxonMobil had borne a significant share of the cost of the extra rebate granted to the W5 by way of sanction in April 2000, as is shown by the credit note sent to the applicant by ExxonMobil on 15 November 2000. That evidence is important for an understanding of the operation of the cartel, which grouped together all the suppliers.
The Commission points out that it did not have sufficient evidence to prove the participation of ExxonMobil in the cartel.
b) Findings of the Court
It is apparent that the argument put forward by the applicant is ineffective, since, even assuming that it is well founded, it could not have any effect on the lawfulness of the contested decision in so far as that decision concerns the applicant (Case
T-75/95
Günzler Aluminium
v
Commission
[1996] ECR II-497
, paragraph 55; Case
T-106/95
FFSA and Others
v
Commission
[1997] ECR II-229
, paragraph 199, and Case
T-126/99
Graphischer Maschinenbau
v
Commission
[2002] ECR II-2427
, paragraph 49). Indeed, assuming that there is sufficient evidence of ExxonMobil’s participation in the cartel, that evidence would not be sufficient to call into question either the existence of the infringement or the applicant’s participation in it. If it were established that ExxonMobil had also participated in the cartel, that would not alter the Commission’s assessment regarding the existence of facts constituting an infringement of Article 81(1) EC or the applicant’s participation in that infringement.
That argument must therefore be rejected and so, accordingly, must all the applicant’s arguments based on errors of fact made by the Commission in the contested decision, which are put forward in support of its claims seeking annulment of that decision.
C –
Errors of law
1. Introductory remarks
The applicant alleges that the Commission made five errors as to the legal characterisation of the facts in the light of Article 81 EC. It submits in particular that the Commission paid more attention to the specific rebate granted to the W5 than to the price and market sharing cartel established by the suppliers alone.
That argument has no factual basis. It is apparent from recitals 155 to 159 of the contested decision that the Commission examined the various elements of the agreements (price fixing, standard rebate for the W5, lower rebate for the other builders) in the light of the provisions of Article 81(1) EC without favouring one element to the detriment of another.
2. First error in the legal characterisation of the facts: non-participation of the large builders in the suppliers’ cartel
a) Arguments of the parties
The applicant submits that, in its assessment of the conduct of the large builders in the light of Article 81 EC, the Commission wrongly imputed to them all the conduct of the suppliers. The mere fact that they did not lodge a complaint against the suppliers with a competition authority cannot suffice to render them liable for the infringement.
The Commission reiterates that the interests of the suppliers and those of the large builders coincided sufficiently to justify anti-competitive conduct by those two parties.
b) Findings of the Court
The Court reiterates that the agreements concluded between the W5 and the suppliers must be taken into account as a whole, since they concern the gross price, the minimum rebate granted to the W5 and the maximum rebate applicable to the small builders (see paragraphs 44 to 53 above), and that the Commission rightly carried out that overall assessment of the agreements in question in order to characterise them in the light of the provisions of Article 81(1) EC. However, that overall assessment of the agreements cannot be equated to an imputation of the suppliers’ conduct to the large builders.
3. Second error in the legal characterisation of the facts, based on the absence of any anti-competitive object of the cartel
a) Arguments of the parties
The applicant submits that the Commission has not shown that the conduct of the W5 had an anti-competitive object to the detriment of final consumers.
Firstly, the Courts of the European Union have held that, while it is accepted that an agreement intended to limit parallel trade must in principle be considered to have as its object the restriction of competition, that applies in so far as the agreement may be presumed to deprive final consumers of the advantages of competition (Case
T-168/01
GlaxoSmithKline Services
v
Commission
[2006] ECR II-2969
, paragraph 121). However, the sole objective of the W5 was to obtain the most advantageous rebate possible, which was made possible by the volume of purchases made by all the members of the W5 and which ultimately benefited final consumers.
Secondly, the applicant points out that the pursuit of stability in purchase prices does not, as such, constitute an objective of restricting competition.
The Commission rejects the applicant’s arguments.
b) Findings of the Court
It must be recalled that, to come within the prohibition laid down in Article 81(1) EC, an agreement must have ‘as [its] object or effect the prevention, restriction or distortion of competition within the common market’. According to settled case-law, the alternative nature of that condition, indicated by the conjunction ‘or’, leads first to the need to consider the precise object of the agreement, in the economic context in which it is to be applied. Where, however, an analysis of the clauses of that agreement does not reveal the effect on competition to be sufficiently deleterious, its effects should then be considered and for it to be caught by the prohibition it is necessary to find that those factors are present which show that competition has in fact been prevented or restricted or distorted to an appreciable extent (Case
56/65
LTM
[1966] ECR 235, 249
; Case
C-209/07
Beef Industry Development Society and Barry Brothers
[2008] ECR I-8637
, paragraph 15; and Case
T-450/05
Peugeot and Peugeot Nederland
v
Commission
[2009] ECR II-2533
, paragraph 43). In deciding whether an agreement is prohibited by Article 81(1) EC, there is therefore no need to take account of its actual effects once it appears that its object is to prevent, restrict or distort competition within the common market (Joined Cases
56/64 and 58/64
Consten and Grundig
v
Commission
[1966] ECR 299, 342
, and Case
C-105/04 P
Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied
v
Commission
[2006] ECR I-8725
, paragraph 125). That examination must be made in the light of the agreement’s content and economic context (Joined Cases
29/83 and 30/83
CRAM and Rheinzink
v
Commission
[1984] ECR 1679
, paragraph 26; Case
C-551/03 P
General Motors
v
Commission
[2006] ECR I-3173
, paragraph 66, and
Beef Industry Development Society and Barry Brothers
, cited above, paragraph 16). Finally, that method of analysis is of general application and is not confined to a category of agreements (Case
T-328/03
O2 (Germany)
v
Commission
[2006] ECR II-1231
, paragraph 67).
The applicant cannot rely on the judgment in
GlaxoSmithKline Services
v
Commission
, cited in paragraph 107 above (paragraph 121), since, according to the Court of Justice, ‘like other competition rules laid down in the Treaty, Article 81 EC aims to protect not only the interests of competitors or of consumers, but also the structure of the market and, in so doing, competition as such’ and ‘[c]onsequently, for a finding that an agreement has an anti-competitive object, it is not necessary that final consumers be deprived of the advantages of effective competition in terms of supply or price’ (
GlaxoSmithKline Services and Others
v
Commission and Others
, cited in paragraph 74 above, paragraphs 62 to 64). When questioned by the Court at the hearing, the applicant itself acknowledged that, in the light of that case-law, this argument had little chance of succeeding.
It is therefore necessary to determine, in the present case, whether the agreements at issue had an anti-competitive object.
Article 81(1) EC expressly mentions as prohibited agreements any which ‘directly or indirectly fix purchase or selling prices or any other trading conditions’ and ‘apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage’. It is apparent from paragraphs 49 to 58 above that, in this case, the agreements were intended, on the one hand, to fix the purchase and selling prices of bitumen and, on the other, to grant a preferential rebate to the members of the W5. The very nature of those agreements is therefore sufficient for them to be held to have had as their object the prevention, restriction or distortion of competition within the common market.
The applicant’s argument that those agreements were intended to secure purchase price stability cannot suffice for that conclusion to be called into question. It should be recalled that such agreements must be examined in their entirety and that, in any event, the pursuit of price stability is not different from the fixing of purchase prices (Case
T-329/01
Archer Daniels Midland
v
Commission
[2006] ECR II-3255
, paragraph 197).
The Court is of the view that it follows from the foregoing that the Commission has proved to the required legal standard that the conduct of the members of the W5 and of the suppliers had an anti-competitive objective.
4. Third error in the legal characterisation of the facts, relating to the Commission’s refusal to apply the provisions of Article 81(3) EC and the Guidelines on horizontal cooperation agreements
a) Arguments of the parties
According to the applicant, the Commission erred in the legal characterisation of the facts by considering that the fact that the W5 collectively negotiated a rebate could not be characterised as ‘collective purchasing’ for the purposes of the provisions of Article 81(3) EC, which is authorised by the Guidelines on the applicability of Article 81 [EC] to horizontal cooperation agreements (
OJ 2001 C 3, p. 2
, ‘the Guidelines on horizontal cooperation agreements’).
It submits, first of all, that, in the contested decision, the Commission assessed its conduct only under Article 81(3) EC and not under the Guidelines on horizontal cooperation agreements, on which, in any event, it placed too strict an interpretation. Those guidelines are however applicable to it, since they concern the conduct of purchasers on their own selling market and the Commission did not prove that the W5 had codetermined the gross price with the suppliers. In the present case, the W5 thus set up a consultation designed to secure more advantageous purchase prices in the interest of the final consumer, equivalent to a joint purchasing organisation.
In addition, the Commission made a number of errors of assessment in the analysis of its conduct under the provisions of Article 81(3) EC. Thus, the Commission first drew an erroneous parallel between the concepts of joint purchasing and joint selling, since only the latter is prohibited by Article 81 EC. Moreover, according to the applicant, the Commission was required to undertake an analysis of the market power of the large builders, in order to examine whether they were actually capable of restricting competition, bearing in mind that the small builders consistently succeeded in securing a higher rebate than that granted to the W5.
Furthermore, the applicant disputes recital 157 of the contested decision, in which the Commission states that, individually, the members of the W5 did not necessarily purchase higher quantities than those purchased by a small builder. It submits that that assertion is not based on any evidence, since the Commission did not ask the small builders for data relating to their purchases, and that it is therefore a mere assumption. In any event, a supplier might very well grant a higher rebate to a company purchasing lower volumes for specific commercial reasons, in particular where that company’s purchasing power is significant. Similarly, the fact that the W5’s negotiations with the suppliers were aimed only at setting a minimum collective rebate which could be increased individually afterwards, shows that the W5’s conduct was in compliance with competition law.
Finally, the applicant calls into question recital 313 of the contested decision, in which the Commission asserts that the large builders restricted competition among themselves, since each large builder negotiated the amount of its rebate bilaterally with the supplier. Moreover, under the case-law of the Court of Justice (Joined Cases
C-180/98 to C-184/98
Pavlov and Others
[2000] ECR I-6451
, paragraphs 92 et seq.), rules which produce restrictive effects only in relation to one cost factor which is, moreover, relatively insignificant do not cause an appreciable restriction of competition. In this case, however, the applicant points out that bitumen accounts for only 1.5% of a road building company’s total costs.
The Commission rejects all of the applicant’s arguments.
b) Findings of the Court
As a preliminary point, the Court notes that it is settled law that it is for undertakings seeking an exemption under Article 81(3) EC to establish, on the basis of documentary evidence, that an exemption is justified. Accordingly, the Commission cannot be criticised for failing to put forward alternative solutions or to indicate what it regarded as justifying the grant of an exemption (Joined Cases
43/82 and 63/82
VBVB and VBBB
v
Commission
[1984] ECR 19
, paragraph 52, and Joined Cases
T-191/98, T-212/98 to T-214/98
Atlantic Container Line and Others
v
Commission
[2003] ECR II-3275
, paragraph 220). All that is incumbent upon the Commission, by virtue of its obligation to state reasons, is to mention the matters of fact and of law and the considerations which prompted it to take a decision rejecting the application for exemption, and the applicant may not require it to discuss all the matters of fact and law raised by it in the administrative procedure (Case
T-29/92
SPO and Others
v
Commission
[1995] ECR II-289
, paragraphs 262 and 263). It follows that it is for the applicant to establish that the Commission erred in law or as to the facts by refusing to grant it an exemption under Article 81(3) EC.
In this case, the Commission set out, in recitals 162 to 168 of the contested decision, the reasons why it considered that the W5’s participation in the arrangements did not amount to collective purchasing as referred to in the Guidelines on horizontal cooperation agreements. Thus, the Commission points out, in recital 163 of the contested decision, that those provisions are not intended to authorise horizontal cooperation agreements in general, but set out the principles for the assessment under Article 81 EC of such agreements which may lead to competition problems. In the present case, it states, in recital 165 of the contested decision, that the agreements in question had as their object the restriction of competition and had consequences for undertakings not involved in them (fixing of prices for all builders in the Netherlands and setting of maximum rebate levels for the small builders). In addition, and in any event, as is correctly stated by the Commission in recital 166 of the contested decision, the W5 did not make any purchases during those negotiations with the suppliers, which were intended only to fix prices and rebates, conduct which point 124 of the Guidelines on horizontal cooperation agreements characterises as a disguised cartel. Moreover, it must be pointed out that the W5 concluded those agreements with a group of sellers which was also engaging in collusive behaviour. Finally, the provisions of Article 81(3) EC do not apply in any event, since, according to point 133 of the Guidelines on horizontal cooperation agreements, purchasing agreements cannot be exempted if they impose restrictions that are not indispensable to the attainment of the economic benefits brought about by the agreements. In this case, the agreements in question imposed restrictions on the small builders in the form of limited rebates, restrictions directed at third parties and not indispensable to the attainment of the economic benefits sought.
Contrary what the applicant claims, it follows from the foregoing that the Commission did not confine itself to assessing its conduct under Article 81(3) EC, but that it also took account of the Guidelines on horizontal cooperation agreements.
The applicant submits, moreover, that the Commission erred in law by considering that the Guidelines on horizontal cooperation agreements did not authorise any particular behaviour, but set out the principles guiding the assessment of such agreements under the provisions of Article 81 EC. However, it is clear from point 1 of those guidelines that their purpose is to ‘set out the principles for the assessment of horizontal cooperation agreements under Article 81 [EC]’. The Commission therefore did not err in law on that point.
The applicant further submits that the Commission erred in law by placing joint purchasing on the same footing as joint selling, whereas only the latter is prohibited by the Guidelines on horizontal cooperation agreements. It thus, in recital 159 of the contested decision, added a condition requiring purchasers to engage in autonomous behaviour on the market, even though the Guidelines on horizontal cooperation agreements did not impose such a condition. However, it is apparent from recital 159 of the contested decision, relating to the application of the provisions of Article 81(1) EC, and not those of Article 81(3) EC, that the Commission was merely responding to the argument, raised by certain undertakings during the administrative procedure, relating to the specific features of the Dutch market and that it did not intend to interpret the Guidelines on horizontal cooperation agreements. That argument must therefore be rejected.
The applicant also complains that the Commission did not carry out an analysis of the market power of the members of the W5 in order to determine whether it was in fact capable of restricting competition. However, the Commission correctly takes the view that it was not required to carry out such an analysis, since this was not a question of a cooperation agreement by which the purchasers were seeking to counterbalance the sellers, but of a collective price cartel between two groups. Moreover, it is apparent from recital 24 of the contested decision that the Commission made it clear at the outset that the members of the W5 owned 36 of the 51 asphalt plants existing in the Netherlands in 2002, that is, more than 70% of them. It must further be stated that, under point 18 of the Guidelines on horizontal cooperation agreements, it is not necessary to examine the actual effects on competition and the market of agreements that have as their object a restriction of competition by means of price fixing, output limitation or sharing of markets or customers, since these agreements are presumed to have negative market effects. Since the Commission considered that the agreements in question were by nature aimed at the restriction of competition (recital 165 of the contested decision), it was therefore not required to carry out a detailed analysis of the market power of the members of the W5.
The applicant further submits that the Commission erred as to the facts by asserting, without any evidence, that, individually, the members of the W5 did not necessarily purchase higher quantities than those purchased by a small builder. However, it is apparent from the contested decision that the Commission relied on a number of items of evidence in order to consider that the rebate from which the W5 benefited was not linked to the volume of its members’ purchases and that the specific rebate from which they benefited was intended to harm other builders (see paragraphs 50 and 51 above). Moreover, the fact that each member of the W5 tried to obtain an extra rebate in addition to the collective rebate on the basis of purchased quantities constitutes further evidence that the collective rebate was not linked to the volume of the W5’s purchases.
Finally, the applicant disputes the Commission’s assertion that the agreements had as their object a restriction of competition (recitals 166 and 313 of the contested decision). It submits that those agreements, on the one hand, did not restrict competition between the members of the W5 and, on the other, did not limit competition between all builders, since bitumen accounted for only 1.5% of those undertakings’ total costs. However, it is apparent from the contested decision that, by fixing, together with the suppliers, which covered 80% of the market, the gross price and the rebate for all their future purchases, the members of the W5 limited the competition which could exist between them. Moreover, although it is true that the Court of Justice may have held, in the specific case of rules establishing compulsory membership of a supplementary pension scheme, that the latter did not affect competition (
Pavlov and Others
, cited in paragraph 120 above, paragraph 95), it has already been properly established by the Commission, for the sake of completeness, that, in the present case, the specific rebate granted to the W5 had an impact on competition in the road building sector, in view of the tendering system existing in the road building sector (see paragraphs 69 to 73 above).
It is clear from all of the foregoing that the Commission did not err in law or in the legal characterisation of the facts by refusing to consider that the participation of the W5 in the agreements constituted ‘collective purchasing’ falling within the scope of Article 81(3) EC, which is authorised under the Guidelines on horizontal cooperation agreements.
5. Fourth error in the legal characterisation of the facts, relating to the incorrect definition of the relevant market and the erroneous determination of the large builders’ market position
a) Arguments of the parties
The applicant submits that the Commission erred in the legal characterisation of the facts by defining the relevant market too narrowly in determining the W5’s position. Thus, following the view taken by the suppliers, the Commission limited its assessment of the relevant market with the sole objective of demonstrating that the large builders held a purchase market share of 49.5% (recital 29 of the contested decision). The applicant points out that objections to the definition of the market adopted by the Commission cannot be seen in isolation from those concerning the impairing of competition (Joined Cases
T-5/00 and T-6/00
Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie
v
Commission
[2003] ECR II-5761
, paragraph 123).
Thus, in the first place, it submits that the Commission has not provided sufficient reasons to justify the exclusion of industrial bitumen from the relevant market, in particular by not stating that no relevant alternative supply existed.
In the second place, it contests the Commission’s decision to limit the relevant market geographically to the Netherlands. Only Kuwait Petroleum still produced bitumen in the Netherlands during the period of infringement, the other suppliers importing bitumen sold in the Netherlands from Belgium and Germany and owning a sales organisation structured at Benelux level. The Commission thus disregarded clear circumstantial evidence of cross-border concertation between suppliers. Similarly, it rejected for no reason the consistent claims of several large builders that the Dutch market was being closed off from other markets by the suppliers, preventing them from sourcing supplies abroad (recital 174 of the contested decision). However, if the Commission had taken account of Belgium and the western part of Germany in its definition of the relevant market, the market share held by the W5 would have been lower than 15%. The Guidelines on horizontal cooperation agreements state that, in the case of joint purchasing by several undertakings, they do not have market power where their combined market shares are below 15%.
The Commission disputes all the applicant’s arguments.
b) Findings of the Court
For the purposes of applying Article 81 EC, the Commission must determine whether the concerted practice in question may harm trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the common market. The parties are opposed on the question of the extent of that obligation upon the Commission and on the definition of the relevant market applied by the Commission in the contested decision.
According to the case-law, the sole purpose of defining the relevant market, in order to apply Article 81(1) EC, is to determine whether the agreement in question may harm trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the common market (order in Case C-111/04 P
Adriatica di Navigazione
v
Commission
, paragraph 31, and Opinion of Advocate General Mengozzi in Case
C-511/06 P
Archer Daniels Midland
v
Commission
[2009] ECR I-5843
, paragraphs 196 and 197).
Moreover, as the General Court has already made clear in its case-law, the obligation to define the market in a decision adopted pursuant to Article 81 EC is not absolute, but is binding on the Commission only where it is impossible, without such a definition, to determine whether the arrangement at issue is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the common market (Case
T-62/98
Volkswagen
v
Commission
[2000] ECR II-2707
, paragraph 230; Case
T-44/00
Mannesmannröhren-Werke
v
Commission
[2004] ECR II-2223
, paragraph 132, and Case
T-38/02
Groupe Danone
v
Commission
[2005] ECR II-4407
, paragraph 99).
Definition of the relevant market is necessary in order to establish whether, in a given situation, the condition laid down in Article 81(3)(b) EC for Article 81(1) EC to be declared inapplicable is met (to that effect, see Commission Notice on the definition of relevant market for the purposes of Community competition law (
OJ 1997 C 372, p. 5
) and Case
T-213/00
CMA CGM and Others
v
Commission
[2003] ECR II-913
, paragraph 226), whereas it is not necessary in order to establish whether the other three conditions laid down in Article 81(3) EC are met (
CMA CGM and Others
v
Commission
, paragraph 226).
In the present case, firstly, it should be noted that the Commission refused, correctly, to apply the provisions of Article 81(3) EC, and in particular those of Article 81(3)(b) EC (paragraphs 122 to 130 above). Secondly, although the applicant maintains that the erroneous definition of the relevant market used by the Commission had an impact on the assessment of the market power of the W5, which was in fact much less significant than that attributed to them, it does not dispute that the agreements at issue were liable to affect trade between Member States and had as their object, at the very least, the stabilisation of purchase prices, which, as has been demonstrated (see paragraphs 113 to 115 above), had the consequence, in the present case, of restricting and distorting competition within the common market. Accordingly, since the application by the Commission of Article 81 EC did not, in the present case, require a prior definition of the relevant market, the Commission was entitled to confine itself to referring to the product and the territory covered by the cartel.
The applicant complains that the Commission did not provide sufficient reasons for the exclusion of industrial bitumen from the relevant market, in particular by not stating that no relevant alternative supply existed. Since there was no duty on the Commission to define the market, it cannot be held that the duty to state reasons was infringed in that regard (
Groupe Danone
v
Commission
, cited in paragraph 137 above, paragraph 99).
The applicant further maintains that the Commission wrongly limited the geographic definition of the relevant market to the Netherlands, even though only one oil company was producing bitumen in the Netherlands, the other suppliers were importing their bitumen from Germany or Belgium and some of them had a sales organisation for Benelux. However, it is apparent from recitals 27 and 28 of the contested decision that the Commission took those facts into account and that it nevertheless stated that bitumen was marketed on a purely national basis in view of the national quality requirements, the risk settlement mechanism and the ownership structure of the asphalt plants.
Moreover, the circumstantial evidence referred to by the applicant in order to give credence to the argument regarding the existence of a cartel in Belgium does not, on its own, appear sufficient to demonstrate that the Commission erred in law in defining the relevant market. In any event, that evidence was taken into account by the Commission in the contested decision. It consists, on the one hand, of a handwritten record drawn up by Kuwait Petroleum of a consultation meeting between the suppliers (Nynas, Klöckner, SNV, BP, Smid & Hollander and Kuwait Petroleum), dated 4 March 1994, mentioning the need to ‘raise the price level in Belgium’ and, on the other, of documents indicating that SNV owned a structured sales organisation at Benelux level, a single manager having been made responsible for marketing bitumen in Benelux from 1993 to 1998, in precisely the same way as ExxonMobil, whose sales organisations were managed by the same persons in the Netherlands and Belgium.
It follows from all of the foregoing that the Commission did not err either in law or in the legal characterisation of the facts in defining the relevant market.
6. Fifth error in the legal characterisation of the facts, relating to the absence of indirect spill-over effects on the downstream market of road construction
a) Arguments of the parties
According to the applicant, the Commission erred in the legal characterisation of the facts by considering that the agreements in question had indirect spill-over effects on the downstream market of road construction. It points out that the costs of purchasing bitumen amount to only a negligible share of the turnover of road building companies in the Netherlands, except in the rare cases of building sites involving only the delivery of very large quantities of asphalt (less than 10% of sites), for which the builders are in any event in a position to negotiate an extra rebate. The Commission has further failed to substantiate by calculations its assertion that a negligible difference in the purchase price of bitumen could constitute a decisive factor in securing public contracts. Moreover, the Commission has not established that the level of the gross price in the Netherlands was higher than that of the price abroad. The data on price trends in several countries were removed from the non-confidential versions of documents received from the suppliers and several documents show that the level of prices in the Netherlands was in fact comparable to that in the neighbouring countries.
The Commission rejects the applicant’s arguments.
b) Findings of the Court
The applicant maintains, first of all, that the Commission has not proved that the price of bitumen, which accounts for only a negligible share of the costs of a road building site, may have an impact on competition by causing indirect spill-over effects on the downstream market of road construction. It should however be pointed out, in accordance with paragraphs 74 to 79 and 110 to 115 above, that the agreements had as their object the prevention, restriction or distortion of competition. Consequently, the Commission did not have to demonstrate the actual anti-competitive effects of those agreements.
The applicant also alleges that the Commission did not prove satisfactorily that the level of the gross price in the Netherlands was higher than that applied in the neighbouring countries during the period of infringement. However, it is apparent from the contested decision (recital 174) that the Commission relied on several documents seized during its inspections, including an internal SNV note of 9 February 1995 which refers to certain price differences which were, prima facie, unjustifiable between the Netherlands and neighbouring countries, and on Kuwait Petroleum’s statement dated 9 October 2003, which also mentions a price difference between the Netherlands and its neighbours. The Commission also based its finding on notes seized at the applicant’s premises, relating to consultation meetings which took place on 12 April 2000 and 29 January 2002. For 2000, those notes state that the level of net prices in the Netherlands was NLG 25 higher than that of prices in Belgium (recital 111 of the contested decision). Similarly, for 2002, those notes reveal that the net price in the Netherlands was EUR 183 as against EUR 162 in Germany and Belgium and EUR 158 in France (recital 123 of the contested decision). That consistent evidence appears sufficient to establish that the level of the gross price in the Netherlands was higher than in neighbouring countries.
Moreover, although the applicant complains that the Commission declared the data on price trends in several countries, which came from the suppliers, confidential, it must be pointed out that, since no anti-competitive practice had been established in the neighbouring countries, the suppliers were entitled to classify as business secrets the information on the prices charged in those countries.
It follows from the foregoing that the Commission did not err in the legal characterisation of the facts by considering that the agreements in question had indirect effects on the downstream market of road construction.
Accordingly, all the applicant’s arguments alleging errors of law made by the Commission in the contested decision, raised in support of the claim for annulment of the latter, must be rejected.
D –
Infringement of essential procedural requirements and of the rights of the defence
1. Arguments of the parties
The third and last plea in law raised by the applicant in support of its claim for annulment alleges infringement of essential procedural requirements and of the rights of the defence by the Commission, which did not forward to it all the other undertakings’ replies to the statement of objections.
The applicant submits that merely forwarding the passages of replies on which the Commission intended to rely expressly in its decision is insufficient in that regard. It considers that communication of all the replies was particularly necessary because of the horizontal and vertical nature of the cartel and because of the Commission’s bias in favour of the suppliers. Finally, it points out that it cannot be for the Commission alone to determine to which replies to the statement of objections access must be granted.
The Commission rejects all of the applicant’s arguments.
2. Findings of the Court
It is apparent from the file that, on 24 May 2006, the Commission forwarded to the applicant the extracts from the other undertakings’ replies to the statement of objections on which it intended to rely as evidence in the contested decision. The applicant commented on those documents on 12 June 2006 and requested access to all the other undertakings’ replies to the statement of objections, but the Commission did not grant that request.
a) General principles relating to access to documents postdating the statement of objections
Article 27(2) of Regulation (EC) No 1/2003 is worded as follows:
‘The rights of defence of the parties concerned shall be fully respected in the proceedings. They shall be entitled to have access to the Commission’s file, subject to the legitimate interest of undertakings in the protection of their business secrets. The right of access to the file shall not extend to confidential information and internal documents of the Commission or the competition authorities of the Member States.’
In paragraph 8 of the Notice on the rules for access to the Commission file in cases pursuant to Articles 81 [EC] and 82 [EC], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (
OJ 2005 C 325, p. 7
), the Commission defines the ‘Commission file’ as ‘all documents, which have been obtained, produced and/or assembled by the Commission Directorate General for Competition, during the investigation’. In paragraph 27 of that notice, the Commission states as follows:
‘Access to the file will be granted upon request and, normally, on a single occasion, following the notification of the Commission’s objections to the parties, in order to ensure the principle of equality of arms and to protect their rights of defence. As a general rule, therefore, no access will be granted to other parties’ replies to the Commission’s objections.
A party will, however, be granted access to documents received after notification of the objections at later stages of the administrative procedure, where such documents may constitute new evidence — whether of an incriminating or of an exculpatory nature —, pertaining to the allegations concerning that party in the Commission’s statement of objections. This is particularly the case where the Commission intends to rely on new evidence.’
It is settled case-law that in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of European Union law which must be complied with even if the proceedings in question are administrative proceedings (Case
85/76
Hoffman-La Roche
v
Commission
[1979] ECR 461
, paragraph 9, and Case
C-176/99 P
ARBED
v
Commission
[2003] ECR I-10687
, paragraph 19). In that regard, Regulation No 1/2003 provides that the parties are to be sent a statement of objections which must clearly set out all the essential matters on which the Commission relies at that stage of the proceedings. That statement of objections constitutes the procedural safeguard applying the fundamental principle of European Union law which requires observance of the rights of the defence in all proceedings (see, 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 34 and 35).
It must first be recalled that access to the file in competition cases is intended in particular to enable the addressees of statements of objections to acquaint themselves with the evidence in the Commission’s file so that, on the basis of that evidence, they can express their views effectively on the conclusions reached by the Commission in its statement of objections. Access to the file is thus one of the procedural safeguards intended to protect the rights of the defence and to ensure, in particular, that the right to be heard can be exercised effectively (see
Atlantic Container Line and Others
, cited in paragraph 122 above, paragraph 334 and the case-law cited). The right of access to the file means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file that might be relevant for its defence (see, to that effect, Case
C-199/99 P
Corus UK
v
Commission
[2003] ECR I-11177
, paragraph 125, and Case
T-30/91
Solvay
v
Commission
[1995] ECR II-1775
, paragraph 81). Those documents comprise both incriminating and exculpatory evidence, with the exception of business secrets of other undertakings, internal documents of the Commission and other confidential information (
Hoffmann-La Roche
v
Commission
, cited in paragraph 157 above, paragraphs 9 and 11, 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 68).
According to the case-law, it is not until the beginning of the
inter partes
administrative stage that the undertaking concerned is informed, by the notification of the statement of objections, of all the essential evidence on which the Commission relies at that stage of the procedure. Consequently, the other parties’ replies to the statement of objections are not, in principle, included in the documents of the investigation file that the parties may consult (Case
T-161/05
Hoechst
v
Commission
[2009] ECR II-3555
, paragraph 163). However, if the Commission wishes to rely on a passage in a reply to a statement of objections or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 81(1) EC, the other parties involved in that proceeding must be placed in a position in which they can express their views on such evidence (see 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
(‘
Cement
’), paragraph 386, and Case
T-314/01
Avebe
v
Commission
[2006] ECR II-3085
, paragraph 50 and the case-law cited).
Moreover, according to the case-law on access to the administrative file predating the statement of objections, the failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement (Case
322/81
Nederlandsche Banden-Industrie-Michelin
v
Commission
[1983] ECR 3461
, paragraphs 7 and 9, and
Aalborg Portland and Others
v
Commission
, cited in paragraph 158 above, paragraph 71) and, second, that the objection could be proved only by reference to that document (Case
107/82
AEG-Telefunken
v
Commission
[1983] ECR 3151
, paragraphs 24 to 30;
Aalborg Portland and Others
v
Commission
, cited in paragraph 158 above, paragraph 71; and
Solvay
v
Commission
, cited in paragraph 158 above, paragraph 58). In this respect, the Court of Justice draws a distinction between incriminating documents and exculpatory documents. In the case of an incriminating document, it is for the undertaking concerned to show that the result at which the Commission arrived would have been different if that document had been disallowed. By contrast, where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the Commission’s decision (see, to that effect,
Aalborg Portland and Others
v
Commission
, cited in paragraph 158 above, paragraphs 73 and 74). That distinction also applies to documents postdating the statement of objections (Case
T-43/02
Jungbunzlauer
v
Commission
[2006] ECR II-3435
, paragraphs 351 to 359).
It should also be pointed out that systematic failure to communicate other undertakings’ replies to the statement of objections is not contrary to the principle of the observance of the rights of the defence. As was stated above, that principle means that the Commission must, during the administrative procedure, disclose to the undertakings concerned all the facts, circumstances or documents on which it relies, so as to enable them to make known effectively their views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission in support of its allegations.
Finally, the applicant may not rely on the case-law that it cannot be for the Commission alone, which notifies any objections and adopts the decision imposing a penalty, to determine the documents of use in the defence of the undertaking concerned (
Aalborg Portland and Others
v
Commission
, paragraph 158 above, paragraph 126;
Solvay
v
Commission
, cited in paragraph 158 above, paragraphs 81 and 83; and
Atlantic Container Line and Others
v
Commission
, cited in paragraph 122 above, paragraph 339). That argument, relating to documents within the file compiled by the Commission, cannot apply to the replies given by other parties concerned to the statement of objections.
b) Application in the present case
In the present case, the applicant submits that it ought to have been granted access to all the other undertakings’ replies to the statement of objections, which might have contained exculpatory evidence.
It must be borne in mind that it was for the applicant to provide prima facie evidence that the non-disclosure of those replies might have influenced, to its disadvantage, the course of the proceedings and the content of the Commission’s decision. However, the applicant merely submitted in a general, very vague and purely speculative way that the other undertakings’ replies to the statement of objections might have provided it with exculpatory evidence because of the horizontal and vertical nature of the cartel and because of the Commission’s supposed bias in favour of the suppliers, and did not provide any specific information constituting prima facie evidence in support of this.
Furthermore, as the Commission points out, it is unlikely, in a cartel, that a company would provide evidence likely to minimise the role of another company in the cartel, even though, in the present case, the fact that the cartel was organised between two groups with potentially divergent interests explains why each party had a tendency to minimise its role in the cartel to the detriment of other parties. In any event, according to the case-law, the mere fact that, in their replies to the statement of objections, other undertakings may have put forward the same arguments as an applicant cannot constitute exculpatory evidence (
Jungbunzlauer
v
Commission
, cited in paragraph 160 above, paragraphs 353 to 356). Thus, the applicant has not adduced any prima facie evidence that forwarding of the other companies’ replies to the statement of objections would have been useful.
Consequently, it must be concluded that the Commission did not infringe the applicant’s rights of defence by refusing to communicate to it all the replies to the statement of objections.
It follows from all of the foregoing that the claim for annulment contained in the application must be rejected.
II –
The claim for cancellation or reduction of the fine
In support of its claim seeking cancellation or reduction of the fine, the applicant raises two pleas in law, the first alleging errors of fact and law in the calculation of the basic amount of the fine, and the second alleging errors of fact and law and infringement of the rights of the defence in the taking into account of aggravating circumstances.
As a preliminary point, it should be noted that, in its claim seeking cancellation or reduction of the fine, the applicant seems to be asking the Court to exercise its unlimited jurisdiction almost exclusively for the purpose of correcting errors of fact and law allegedly made by the Commission. Apart from the complaint relating to the disproportionate nature of the increase in the fine for refusal to cooperate, no argument put forward in support of the pleas raised seems to require the Court to exercise its unlimited jurisdiction for the purpose of substituting its own assessment for that of the Commission. Consequently, the Court must, in this case, examine whether those errors are proved and, where appropriate, exercise its unlimited jurisdiction in order to remedy them if necessary.
As a secondary point, it should be made clear that, as was stated above, although it seems to be apparent from the claim seeking cancellation or reduction of the fine that the applicant is asking the Court to exercise its unlimited jurisdiction only in the virtually exclusive context of the assessment of the erroneous nature of the Commission’s reasoning, the Court takes the view that, in any event, the arguments put forward by the applicant in support of its claim do not justify the adoption of an assessment which differs from that of the Commission.
A –
Determination of the basic amount of the fine
The first plea is based on errors of fact and law allegedly made by the Commission in the calculation of the basic amount of the fine. The applicant submits that the basic amount of the fine imposed on it (EUR 17.1 million) is too high for four reasons.
1. Classification as a very serious infringement
a) Arguments of the parties
In the first place, the applicant claims that the Commission wrongly classified the conduct of the members of the W5 as a very serious infringement, whereas the collective negotiation of as high a rebate as possible at the time of purchasing, designed to counter a price and market-sharing arrangement concluded between the suppliers, could not be treated in the same way as that price and market-sharing arrangement concluded between the suppliers. It was thus for the Commission to make a separate assessment of the gravity of the conduct of the members of the W5 by, in particular, carrying out an analysis of the actual repercussions of the conduct in question on competition. The Commission was, furthermore, required to state reasons for its assertion that the large builders ought to have known that their practice restricted competition and to show that that practice disadvantaged the small builders, in precisely the same way as the alleged artificial increase in bitumen prices in the Netherlands. Finally, it points out that the Commission itself acknowledged in the statement of objections that the secret arrangements concerned only the suppliers, and not the large builders, which did not seem very anxious to conceal their contacts. Invitations to meetings thus took place through its secretariat and no record was drawn up following those meetings because of the brevity of the results of the negotiations and the absence of any formal agreement.
In conclusion, the applicant submits that, in accordance with the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (
OJ 1998 C 9, p. 3
, ‘the Guidelines on the method of setting fines’), the infringement at issue could, at the very most, be classified as minor, for which a maximum basic amount of EUR 1 million is applicable.
The Commission rejects all of the applicant’s arguments.
b) Findings of the Court
According to Section 1 of the Guidelines on the method of setting fines, the basic amount of the fine is to be determined according to the gravity and duration of the infringement, and in assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market. The Guidelines on the method of setting fines therefore draw a distinction between minor infringements (for example, trade restrictions, usually of a vertical nature, but with a limited market impact), serious infringements (more often than not, horizontal or vertical restrictions, more rigorously applied, and with a wider impact on the common market), and very serious infringements (generally horizontal restrictions such as price cartels, market-sharing quotas or other practices which jeopardise the proper functioning of the single market).
It must be recalled that, in accordance with settled case-law, the gravity of an infringement is assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, in respect of which the Commission has a broad discretion (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 241; Case
C-328/05 P
SGL Carbon
v
Commission
[2007] ECR I-3921
, paragraph 43; and Case
T-69/04
Schunk and Schunk Kohlenstoff-Technik
v
Commission
[2008] ECR II-2567
, paragraph 153). Moreover, according to the case-law, when determining the amount of fines, regard must be had to all the factors capable of affecting the assessment of the gravity of the infringements, such as the role played by each of the parties in the infringement and the threat that infringements of that type pose to the objectives of the European Union (Joined Cases
100/80 to 103/80
Musique Diffusion française and Others
v
Commission
[1983] ECR 1825
, paragraphs 120 and 129, Joined Cases
96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82
IAZ International Belgium and Others
v
Commission
[1983] ECR 3369
, paragraph 52; and Joined Cases
T-49/02 to T-51/02
Brasserie nationale and Others
v
Commission
[2005] ECR II-3033
, paragraphs 168 to 183). Where an infringement has been committed by several undertakings, it is appropriate to consider the relative gravity of the participation of each of them (Case
C-51/92 P
Hercules Chemicals
v
Commission
[1999] ECR I-4235
, paragraph 110, and Case
C-235/92 P
Montecatini
v
Commission
[1999] ECR I-4539
, paragraph 207).
The Courts of the European Union have also recognised classification as an inherently very serious infringement in the case of horizontal price cartels or agreements involving in particular customer-sharing or partitioning of the common market (Joined Cases
T-374/94, T-375/94, T-384/94 and T-388/94
European Night Services and Others
v
Commission
[1998] ECR II-3141
, paragraph 136;
Groupe Danone
v
Commission
, cited in paragraph 137 above, paragraph 147, and Case
T-53/03
BPB
v
Commission
[2008] ECR II-1333
, paragraph 279). Such agreements may, solely on account of their nature, be classified as very serious, without it being necessary for such conduct to cover a particular geographical area or have a particular impact (
Brasserie nationale and Others
v
Commission
, cited in paragraph 176 above, paragraph 178). Conversely, a horizontal agreement covering the entire territory of a Member State and with the object both of dividing the market and of partitioning the common market cannot be classified as minor within the meaning of the Guidelines on the method of setting fines (
Brasserie nationale and Others
v
Commission
, paragraph 176 above, paragraph 181). Thus, contrary to what the applicant asserts, there was no requirement for the Commission to carry out an analysis of the actual repercussions of the conduct at issue on competition in order to be able to determine the gravity of the infringement by showing that the agreements disadvantaged the small builders and artificially increased the level of the gross price in the Netherlands.
In the present case, the Commission considered, in recitals 312 to 317 of the contested decision, that the applicant had committed a very serious infringement of Article 81(1) EC. It pointed out that an infringement consisting of the direct or indirect fixing of selling and purchase prices and of the application of dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, is amongst the most serious types of infringements by their nature. It further stated that both groups involved in the infringement should have been aware of the illegal nature of the cartel, since the members of the W5 deliberately put other builders at a competitive disadvantage. It considered that the secret character of the arrangements entered into was, in that regard, further proof that the participants were aware of their illegal nature.
It must be observed that the applicant does not dispute the facts cited in recital 312 of the contested decision, namely that the cartel consisted of the direct or indirect fixing of selling and purchase prices and of the application of dissimilar conditions to equivalent transactions with other parties, thereby placing them at a competitive disadvantage. The mechanisms thus described by the Commission are among the most serious forms of impairment of competition. The applicant merely seeks to draw a distinction between several courses of conduct relating to the same cartel, arguing that the Commission ought to have carried out a separate assessment of the conduct of the suppliers and of that of the large builders, since the former were responsible for a price cartel whereas the latter merely negotiated a collective rebate on purchase prices. As the Court has already stated above (see paragraphs 49 to 58 above), it is however necessary to take into account the agreements concluded between the W5 and the suppliers as a whole, since they concern the gross price, the minimum rebate granted to the W5 and the maximum rebate applicable to the small builders Thus, the circumstances invoked by the applicant in this case are not such as to call in question the validity of the Commission’s assessment of the gravity of the infringement. It follows that the Commission’s conclusion that the agreements and consultations at issue constituted, by their nature, a very serious infringement, cannot be disputed.
According to the applicant, the Commission was required to state reasons for its assertion in recital 313 of the contested decision that the large builders should have known that their practice restricted competition. It further submits that, as far as the large builders were concerned, those agreements were not confidential. The Courts of the Union have already held that, when determining the gravity of the infringement, the Commission was legitimately able to take into consideration the fact that the undertakings took many precautions to prevent the cartel from being exposed (
Schunk and Schunk Kohlenstoff-Technik
v
Commission
, cited in paragraph 176 above, paragraph 154). In the present case, the Commission stated that the W5 had also put in place secrecy arrangements, in particular by not sending out written invitations to the consultation meetings and not drawing up any record of those meetings. In any event, the wording of recital 313 of the contested decision shows that the elements mentioned there were subsidiary to those listed in recital 312 of the contested decision. Accordingly, even supposing that the applicant’s objection to the taking into account of the secret nature of the cartel and of the awareness of its illegality could be regarded as founded, that would not call into question the Commission’s assessment of the nature of the infringement, as it results from the relevant and sufficient reasons contained in recital 312 of the contested decision (see, to that effect,
Schunk and Schunk Kohlenstoff-Technik
v
Commission
, cited in paragraph 176 above, paragraph 157).
It follows from all of the foregoing that, in view of the very serious nature of the infringement committed by the applicant, the Commission did not make any error of assessment. The applicant’s claim seeking to have the cartel classified as a minor infringement must accordingly be rejected (
Brasserie nationale and Others
v
Commission
, cited in paragraph 176 above, paragraph 181).
2. Erroneous assessment of the impact of the cartel on the market
a) Arguments of the parties
In the second place, the applicant complains that in setting the basic amount of the fine the Commission did not measure the impact of the cartel on the market.
The Commission submits that it was not required to take into account the actual impact of the cartel on the relevant market.
b) Findings of the Court
In recital 314 of the contested decision, the Commission states that the determination of the gravity of the infringement and of the amount of the fine is not dependent on the impact on the market of the cartel. It explains that it is not possible to measure the actual impact due to lack of information on what bitumen price developments would have occurred in the absence of the arrangements, but that the Commission can confine itself to estimates of the effects of the cartel. To that end, it pointed out that the arrangements concluded were effectively implemented; that implementation included the application of a preferential rebate only to the W5 members and of the system of sanctions for non-compliance with the arrangements, thereby creating artificial market conditions. It further stated that the gross price in the Netherlands was higher than that in neighbouring countries and that the specific rebate granted to the W5 could be a decisive factor in winning public contracts.
According to Section 1 of the Guidelines on the method of setting fines, the basic amount of the fine is determined ‘according to the gravity and duration of the infringement, [and] [i]n assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market’.
The Courts of the European Union have confirmed that the Commission is not required to establish the actual impact of the infringement on the market, since the question to what extent the restriction of competition resulted in a market price higher than would have been obtained without the cartel is not a decisive factor for determining the level of fines (
Musique Diffusion française and Others
v
Commission
, cited in paragraph 176 above, paragraphs 120 and 129; Case
C-286/98 P
Stora Kopparbergs Bergslags
v
Commission
[2000] ECR I-9925
, paragraphs 68 to 77; and Case T-25/05
KME Germany and Others
v
Commission
[2010] not published in the ECR, paragraph 82 and the case-law cited).
The Court of Justice has thus stated that it is apparent from the Guidelines on the method of setting fines that the very nature of the infringement may suffice for it to be classified as ‘very serious’, regardless of its actual impact on the market and its geographic extent (see paragraph 177 above and Joined Cases
C-125/07 P, C-133/07 P, C-135/07 P and C-137/07 P
Erste Group Bank and Others
v
Commission
[2009] ECR I-8681
, paragraph 103). That conclusion is supported by the fact that, whilst the description of ‘serious’ infringements expressly mentions market impact and effects over extensive areas of the common market, the description of ‘very serious’ infringements makes no mention of a requirement that there be an impact or that there be effects in a particular geographic area (
Groupe Danone
v
Commission
, cited in paragraph 137 above, paragraph 150). The Court of Justice has also stated that it is apparent from the first paragraph of Section 1A of the Guidelines on the method of setting fines that that impact is to be taken into account only where this can be measured (
Archer Daniels Midland
v
Commission
, cited in paragraph 136 above, paragraph 125, and Case
C-534/07 P
Prym and Prym Consumer
v
Commission
[2009] ECR I-7415
, paragraph 74).
In the present case, in view of the nature of the infringement in question and of the fact that the Commission made it clear in the contested decision that the actual impact of the infringement could not be measured (recitals 314 and 316), the Commission was not required to carry out an assessment of that actual impact on the market in order to classify the infringement as very serious.
Moreover, according to the case-law, if the Commission considers it appropriate for the purpose of calculating the fine to take that optional element — the actual impact of the infringement on the market — into account, where it can be measured, it cannot just put forward a mere presumption but must provide specific, credible and adequate evidence with which to assess what actual influence the infringement may have had on competition in that market, since the additional consideration of that factor allows the Commission to increase the starting amount of the fine beyond the minimum likely amount of EUR 20 million fixed by the Guidelines on the method of setting fines, without any cap other than the maximum limit of 10% of the total turnover of the undertaking concerned in the preceding business year laid down, in respect of the total amount of the fine, in Article 23(2) of Regulation No 1/2003 (
Prym and Prym Consumer
v
Commission
, cited in paragraph 187 above, paragraphs 81 and 82).
However, in the present case, since the Commission clearly stated in the contested decision that the actual impact of the infringement could not be measured and that it therefore played no part in the determination of the gravity of the infringement and the amount of the fine, it cannot be criticised for stating in the recital relating to the actual impact of the cartel on the market that the agreements in question had been implemented. Similarly, it will not be necessary to examine whether the other circumstantial evidence which it put forward were sufficient to establish the actual influence that the infringement may have had on competition in that market.
3. Disproportionate nature of the starting amount
a) Arguments of the parties
In the third place, the applicant submits that the starting amount of the fine of EUR 9.5 million is manifestly disproportionate to its purchase volume, which was EUR 7.7 million in 2001. The Commission took no account, in particular, of the fact that the cartel concerned, for the large builders, the purchase price, and not the selling price, and that that purchase price represented only a negligible proportion of its production costs, on which it realised a net margin before tax of less than 5%. Moreover, the Commission should have taken into account the fact that it had passed on that reduction in its purchase costs in the offers made to its customers.
The Commission rejects the applicant’s arguments.
b) Findings of the Court
According to the sixth paragraph of Section 1A of the Guidelines on the method of setting fines, where an infringement involves several undertakings, it might be necessary in some cases to apply weightings to the amounts determined within each of the three categories ‘in order to take account of the specific weight and, therefore, the real impact of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type’. The seventh paragraph thus states that ‘the principle of equal punishment for the same conduct may, if the circumstances so warrant, lead to different fines being imposed on the undertakings concerned without this differentiation being governed by arithmetic calculation’.
The Commission stated in recitals 318 to 322 of the contested decision that, in order to take account of the specific importance of the unlawful conduct of each undertaking involved in the cartel and of its real impact on competition, it made a distinction between the undertakings concerned according to their relative importance in the relevant market. In view of the particular nature of the cartel, which concerned sellers and purchasers of the same product in the same business area, it measured the relative importance of those undertakings by their market shares calculated on the basis of the value of road pavement bitumen sales, in the case of the suppliers, and of road pavement bitumen purchases, in the case of the builders, in 2001, the last full year of the infringement. It thus divided the undertakings into six categories and placed the applicant in the third category, which groups together market shares from 12.4 to 13.5%, arriving at a starting amount of EUR 9.5 million for the applicant. Moreover, it stated in recital 317 of the contested decision that, even though very serious infringements may be subject to fines in excess of EUR 20 million, it had set that amount at only EUR 15 million, in view of the fact that the infringement was limited to road pavement bitumen sold in a single Member State, of the relatively low value of that market (EUR 62 million in 2001) and of the high number of participants.
The Court has already stated that, in the context of Regulation No 1/2003, the Commission has a wide margin of discretion in fixing the amount of fines in order to steer the conduct of undertakings towards compliance with the competition rules, and that the Court is under a duty to verify whether the amount of the fine imposed is proportionate in relation to the gravity and duration of the infringement and to weigh the gravity of the infringement and the circumstances invoked by the applicant (see, to that effect, Case
T-368/00
General Motors Nederland and Opel Nederland
v
Commission
[2003] ECR II-4491
, paragraph 189).
It has, furthermore, been held that, although they do not provide that the fines are to be calculated according to the overall turnover of the undertakings concerned or their turnover on the relevant product market, the Guidelines on the method of setting fines do not preclude such turnover from being taken into account in determining the amount of the fine in order to comply with the general principles of Community law and where circumstances demand it, and that the Commission may accordingly group the undertakings concerned into several categories on the basis of the turnover of each of them in the goods concerned by the proceedings (see, to that effect,
Schunk et Schunk Kohlenstoff-Technik
v
Commission
, cited in paragraph 176 above, paragraphs 176 and 177). Similarly, the Commission may group the undertakings in question according to their importance on the market, which can be measured, in the case of a cartel between sellers and purchasers, by their market shares calculated on the basis of the value of the sales or purchases concerned.
The method of dividing the members of a cartel into categories in order to apply differential treatment when setting the starting amounts of the fines, the principle of which has been approved by the case-law even though it ignores the differences in size between undertakings in the same category, results in a flat-rate starting amount for all the undertakings in the same category. The Commission may thus, in particular, divide the undertakings concerned into several categories based, for example, on steps of 5 or 10% of market share. The Courts of the European Union point out however that such a division must respect the principle of equal treatment and that the amount of the fine must at least be proportionate in relation to the factors taken into account in the assessment of the gravity of the infringement, and that the Courts restrict themselves to reviewing whether that division is coherent and objectively justified (see, to that effect, Case
T-68/04
SGL Carbon
v
Commission
[2008] ECR II-2511
, paragraphs 62 to 70, and
Hoechst
v
Commission
, cited in paragraph 159 above, paragraphs 123 and 124).
It is settled case-law that the Commission is not required, when assessing fines in accordance with the gravity and duration of the infringement in question, as is pointed out in the sixth paragraph of Section 1A of the Guidelines on the method of setting fines, to calculate the fines on the basis of the turnover of the undertaking concerned. Similarly, in the case of a cartel between sellers and purchasers, it is not required to make that calculation on the basis of the value of the sales or purchases of the undertakings in question. It is, admittedly, permissible for the Commission to take account of the turnover of the undertaking in question or, in the case of a cartel between sellers and purchasers, of the value of the sales and purchases of the product concerned, but disproportionate importance must not be attributed to those figures by comparison with other relevant factors. The Commission therefore retains a certain margin of discretion as to whether it is appropriate to weight the fines according to the size of each undertaking. Thus, in determining the amount of the fines, the Commission is not required, where fines are imposed on several undertakings involved in the same infringement, to ensure that the final amount of the fines reflects the difference in overall turnover of the undertakings concerned (Case
C-407/04 P
Dalmine
v
Commission
[2007] ECR I-829
, paragraphs 141 to 144), in their turnover in the relevant product market (Case
T-62/02
Union Pigments
v
Commission
[2005] ECR II-5057
, paragraph 159), or, in the case of a cartel between sellers and purchasers, in the amount of their sales or purchases in the relevant market.
It is also settled case-law that the fact that the method of calculation set out in the Guidelines on the method of setting fines is not based on the value of the sales or purchases of the undertakings concerned and therefore allows disparities to appear between the undertakings as regards the relationship between the value of their sales or purchases and the amount of the fines imposed on them is irrelevant to an assessment of whether the Commission infringed the principles of proportionality and equal treatment and that penalties should fit the individual offender (Case
T-116/04
Wieland-Werke
v
Commission
[2009] ECR II-1087
, paragraphs 86 and 87).
The Court’s only task in the present case is therefore to satisfy itself that the division of the undertakings into categories carried out by the Commission was coherent and objectively justified. The Commission stated in recitals 29 and 320 of the contested decision that, since the present case concerned a cartel between sellers and purchasers of the same product in the same business area, it was appropriate to make a single ranking according to the turnover in the product concerned. Consequently, although the cartel concerned the purchase price in the case of the large builders and the selling price in the case of the suppliers, the Commission was entitled to make a single ranking, according to the value of sales or purchases of the product concerned, without infringing its obligations of coherence and objective justification. Finally, the case-law set out previously shows that the Commission was not required to take into account the fact, if proved, that the applicant passed on the reduction in its purchasing costs due to the cartel in its offers made to its customers and that the purchase price of bitumen accounted for only a negligible proportion of its production costs.
4. Erroneous assessment of the duration of the infringement
a) Arguments of the parties
In the fourth and last place, the applicant submits that it participated in the infringement from 1996 at the earliest, and not from 1994. It submits that the negotiation of a minimum collective rebate cannot be regarded as an agreement restricting competition and that the Commission has demonstrated neither the existence of another form of negotiation before 1996 nor that it had concluded agreements designed to fix with the suppliers the maximum rebate that could be granted to the small builders. It admits only that, on one occasion, in 2000, the large builders collectively negotiated an extra rebate with the suppliers, since they had noticed that the latter were not granting them a genuine rebate based on their purchasing volume.
The Commission rejects the applicant’s arguments
b) Findings of the Court
According to recital 326 of the contested decision, the Commission considers that the applicant participated in the infringement from 1 April 1994 until 15 April 2002. The applicant submits that the Commission erred as to the facts by not differentiating the conduct of the large builders from that of the suppliers, since only the latter had established a cartel before 1996.
It is however apparent from a number of documents in the file that the large builders were already participating before 1996 in the cartel, which already applied to the specific rebate granted to the W5 (recitals 175 to 178 of the contested decision). Thus, two documents seized at HBG, dated 28 March and 8 July 1994, mention agreements between the W5 and the suppliers on the gross price until 1 January 1995 and on the specific rebate granted to the W5 (recitals 93 and 94 of the contested decision). Moreover, two internal SNV notes of 6 and 9 February 1995 also mention agreements concerning prices and special rebates concluded between the W5 and the suppliers (recital 89 of the contested decision). Finally, in its reply to the statement of objections, the applicant also stated that a separate W5 consultation had already taken place during that period (recital 177 of the contested decision).
The applicant also denies the existence of a maximum limit on the rebate granted to the small builders, in particular before 1996. However, several documents confirm its existence in the cartel negotiations as early as 1994, as was stated in paragraph 52 above: suppliers’ statements (recitals 50, 53 and 54 and 82 to 86 of the contested decision), documents contemporaneous with the infringement (recitals 82 to 85, 93, 95, 108, 115, 116 and 153 of the contested decision) and replies from the applicant to a Commission request for information and to the statement of objections (recitals 72, 97 and 119 of the contested decision).
Therefore, this argument must also be rejected.
In conclusion, the plea in law alleging the existence of errors of fact and law in the calculation of the basic amount of the fine must be rejected.
B –
Aggravating circumstances
The second plea in law alleges the existence of errors of fact and law and infringement of the applicant’s rights of defence in the taking into account of aggravating circumstances. The applicant complains that the Commission unjustly increased the amount of the fine on the basis, firstly, of its failure to cooperate during an inspection and, secondly, of its role of instigator and leader in the cartel.
1. Aggravating circumstance relating to refusal to cooperate during the inspection
a) Arguments of the parties
The applicant submits that the Commission’s decision to increase the basic amount of its fine by 10%, on the ground that it refused to cooperate during the Commission’s inspection on 1 October 2002 and that it engaged in attempts at obstruction during that inspection, is questionable for four reasons.
In the first place, the Commission infringed its rights of defence by not informing it, in the statement of objections, that the incidents would be taken into account in the calculation of the fine. Although the Commission thus mentioned the two incidents in question in the part of the statement of objections relating to the procedure, there was nothing from which the applicant could infer that the Commission intended to take account of those facts in the calculation of the fine, since no mention was made of them in the part of the statement of objections concerning aggravating circumstances. The applicant states, moreover, that it was unable to acquaint itself with the Commission’s practice in that regard by means of the content of statements of objections in other cases, since those are not public documents.
In the second place, refusal to cooperate is factually unfounded, since no infringement of Article 15(1) of Regulation No 17 of the Council of 6 February 1962 First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), which was repealed and replaced by Regulation No 1/2003, or of the investigation decision adopted pursuant to Article 14(3) of the former regulation (‘the investigation decision’) was found to have taken place. It is thus apparent from the official report of refusal that the secretary of the applicant’s managing director asked the Commission inspectors to await the arrival of its external lawyers before entering the premises. However, those inspectors refused to grant it any time and immediately called out the police and forced entry to the offices, without even enquiring as to the possible presence of an in-house lawyer who could receive and assist them. Contrary to what the Commission asserts, that incident did not last more than 20 minutes. Furthermore, the Commission infringed its rights of defence by not granting it a reasonable time in order to benefit from legal assistance, since it did not have an in-house lawyer present on the premises to undergo inspection. The second official report mentions the refusal by the applicant’s external lawyers to grant the inspectors access to the office of one of its directors who was absent, because they considered that it did not contain any documents relating to bitumen and that the Commission’s warrant did not allow it to enter that office. The Commission states that it had to request the assistance of the Netherlands competition authority, which contacted the police authorities, in order to be able to enter that office. However, the applicant submits that that report does not reflect the true position. Although its lawyers initially refused to allow access to that office, they nevertheless quickly decided to allow it, which therefore constitutes only a minor incident and not an attempt to obstruct the investigation. Accordingly, the official report does not indicate that anyone entered the office and that evidence may have been concealed during that brief period of time. Finally, the applicant points out that the two official reports, drawn up on 3 October 2002, that is, after those inspections, were sent to it only in the context of access to the file and that it was therefore unable to submit its comments in time, in breach of the principle of the sound administration of justice.
In the third place, the increase in the fine for refusal to cooperate is contrary to the provisions of Article 15(1) Regulation No 17 which were in force at the material time and which laid down a maximum fine of EUR 5 000 where an undertaking refused to submit to an investigation decision. The applicant thus submits that the Commission was not entitled to rely on the Guidelines on the method of setting fines in order to derogate from those provisions and that, by seeking to impose on it such an increase on the basis of the provisions of Regulation No 17, it committed an abuse of powers.
In the fourth and last place, the increase in the fine of EUR 1.71 million for refusal to cooperate is disproportionate in the light of the facts described in the official reports drawn up by the Commission.
The Commission rejects all of the applicant’s arguments.
b) Findings of the Court
It is apparent from the contested decision, and in particular from recitals 32, 340 and 341, that, on 1 October 2002, the Commission carried out investigations, inter alia at the applicant’s premises, and that, during that inspection, the applicant first refused the Commission officials entry to the building until its external lawyers arrived and then refused to allow them access to the office of one of its directors. The Commission therefore requested the assistance of the police authorities in order to carry out those investigations. The Commission officials drew up two official reports relating to those incidents on 3 October 2002, which were sent to the applicant in the context of the access to the file granted by the Commission on 19 October 2004. The applicant puts forward four arguments to dispute the Commission’s decision to increase the basic amount of its fine by 10% for that reason.
Infringement of the rights of the defence arising from the content of the statement of objections
In the first place, the applicant submits that, by not informing it in the statement of objections that its fine could be increased on account of those refusals to cooperate, the Commission infringed its right of defence. However, it is apparent from the statement of objections that the Commission mentioned the two refusals to cooperate in the part relating to the procedure, pointing out that they constituted infringements of Article 1 of its inspection decision of 26 September 2002 (point 85). Moreover, in the part of the statement of objections concerning remedial measures, the Commission reiterated the principles governing the setting of fines, pointing out that it would take account in particular of any attenuating or aggravating circumstances, without giving further details.
According to settled case-law, where the Commission expressly states in its statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and it also indicates the main factual and legal criteria capable of giving rise to the imposition of a fine, such as the gravity and the duration of the alleged infringement and whether that infringement was committed intentionally or negligently, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary means to defend themselves not only against the finding of an infringement but also against the imposition of fines (
Musique diffusion française and Others
v
Commission
, cited in paragraph 176 above, paragraph 21, and Case
T-31/99
ABB Asea Brown Boveri
v
Commission
[2002] ECR II-1881
, paragraph 78). So far as the setting of the amount of the fines is concerned, the rights of defence of the undertakings in question are guaranteed before the Commission by virtue of the fact that they have the opportunity to make submissions on the duration, the gravity and the foreseeability of the anti-competitive nature of the infringement. Moreover, undertakings have an additional guarantee, as regards the setting of the amount of the fine, in that the Court has unlimited jurisdiction and may in particular cancel or reduce the fine pursuant to Article 31 of Regulation No 1/2003 (Case
T-83/91
Tetra Pak
v
Commission
[1994] ECR II-755
, paragraph 235; see, to that effect,
ABB Asea Brown Boveri
v
Commission
, cited above, paragraph 79). The Courts of the European Union therefore concluded that the Commission was entitled to confine itself to indicating, without giving further details, in the statement of objections that it would take account of the individual role played by each undertaking in the agreements in question and that the amount of the fine would reflect any aggravating or attenuating circumstances, since the Guidelines on the method of setting fines detail the circumstances which may be regarded as aggravating (
Groupe Danone
v
Commission
, cited in paragraph 137 above, paragraphs 50 to 56).
In the present case, in accordance with the case-law referred to above, the Commission expressly indicated in the statement of objections (points 357 to 362) that it intended to impose fines on the undertakings to which the statement was addressed and the factual and legal matters which it would take into account in setting the fine that would be imposed on the applicant, so that its right to be heard was therefore observed in that regard. With more particular regard to the aggravating circumstance of refusal to cooperate during the course of the investigation that was found to have been committed by the applicant, it must be observed that the Guidelines on the method of setting fines cite such refusal as an example of an aggravating circumstance and also that the Commission indicated in the statement of objections that it would take account of the individual role played by each undertaking in the agreements in question and that the amount of the fine would reflect any aggravating or attenuating circumstances (point 361). The applicant could not therefore fail to be aware that the Commission could take that aggravating circumstance into account if it were to conclude that the conditions for its application were satisfied. The Commission therefore did not infringe the applicant’s rights of defence.
Error in the legal characterisation of the facts
In the second place, the applicant submits that the Commission erred in the legal characterisation of the facts by classifying the two incidents in question as refusal to submit to the investigation decision, as referred to in Article 15(1)(c) of Regulation No 17, which was in force at the material time. According to the applicant, it was entitled to ask the Commission not to carry out the investigations until its external lawyers arrived, in order to protect its rights of defence, and, in any event, the Commission’s inspectors were very quickly able to carry out the desired investigations.
– First incident
It is apparent from the file that Commission inspectors and Netherlands competition authority officials reported to reception at the applicant’s premises in Utrecht at 09.30 hrs on 1 October 2002, armed with a Commission decision ordering the applicant to submit to an investigation decision. However, they were refused entry to the building by the managing director’s secretary who asked them to await the arrival of the applicant’s external lawyers in a waiting room situated on the ground floor, and they were finally granted entry only after the arrival of the police who had been called by the Netherlands competition authority officials at the request of the Commission inspectors. The Commission submits that that refusal caused a delay of 47 minutes. The applicant takes the view that it was entitled to ask the Commission to await the arrival of its lawyers, whose chambers were located in The Hague (Netherlands), that is a distance of 60 km away, since it did not have an in-house lawyer available.
The Court notes that the applicant merely asserts that it was entitled to demand that the Commission await the arrival of its external lawyers, who were specialists in competition law, before starting to carry out the proposed investigation, without relying for this purpose on any specific provision of European Union or Netherlands legislation.
It is true that the Courts of the European Union have held that the mere exercise by an undertaking of its rights of defence cannot constitute a refusal to cooperate within the meaning of Section 2, second indent, of the Guidelines on the method of setting fines (Case
T-9/99
HFB and Others
v
Commission
[2002] ECR II-1487
, paragraph 478, confirmed, in this respect, by
Dansk Rørindustri and Others
v
Commission
, cited in paragraph 176 above, paragraph 353).
Moreover, according to settled case-law, the legal principle of the right to a fair hearing is a general principle of European Union law, which is derived from fundamental rights and is also based on the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and in particular on Article 6 of that convention. Thus, when an applicant relies on such a principle, it is assumed that he has, by implication, made reference to the ECHR (Opinion of Advocate General Geelhoed in Case
C-411/04 P
Salzgitter Mannesmann
v
Commission
[2007] ECR I-959, I-962
, points 45 to 49).
The Court must therefore consider this complaint by examining whether, in the present case, the Commission observed the procedural safeguards arising from the general principles of European Union law and from the ECHR. Regard must also be had to Article 47(1) and (2) and Article 48(2) of the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (
OJ 2000 C 364, p. 1
), which, even though it did not have binding legal effects comparable to those of primary law at the time when the contested decision was adopted, shed light, as a material legal source, on the fundamental rights which are guaranteed by European Union law (Case
C-540/03
Parliament
v
Council
[2006] ECR I-5769
, paragraph 38, and Case
C-432/05
Unibet
[2007] ECR I-2271
, paragraph 37).
It must be recalled, in that regard, that, as stated in Article 6(3)(c) of the ECHR, ‘[e]veryone charged with a criminal offence has the … right … to defend himself in person or through legal assistance of his own choosing’ and that, according to the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, ‘[e]veryone shall have the possibility of being advised, defended and represented’.
First of all, the Court notes that neither Regulation No 17, which was applicable at the time when the investigations took place, nor Regulation No 1/2003, nor Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (
OJ 2004 L 123, p. 18
), contains any provisions relating to the presence of a lawyer at the time of investigations.
Moreover, the exercise of the rights of the defence is chiefly incorporated in legal or administrative procedures aimed at terminating an infringement or for a declaration that an agreement, decision or concerted practice is incompatible with Article 81 EC. However, the investigation procedure referred to in Article 14 of Regulation No 17 does not aim at terminating an infringement or declaring that an agreement, decision or concerted practice is incompatible with Article 81 EC; its sole objective is to enable the Commission to gather the necessary information to check the actual existence and scope of a given factual and legal situation. Only if the Commission considers that the data for the appraisal thereof collected in this way justify the adoption of a decision finding that an infringement has been committed must the undertaking concerned be heard before such a decision is taken, pursuant to Article 19(1) of Regulation No 17. Precisely this substantive difference between the decisions taken at the end of such a procedure and decisions ordering an investigation explains the wording of Article 19(1) which, in listing the decisions which the Commission cannot take before giving those concerned the opportunity of exercising their right of defence, does not mention that laid down in Article 14(3) of the same regulation (see, to that effect, Case
136/79
National Panasonic
v
Commission
[1980] ECR 2033
, paragraph 21).
None the less, the Courts of the European Union have held that it is necessary to prevent the rights of the defence from being irremediably impaired during preliminary inquiry procedures including, in particular, investigations which may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings and for which they may be liable. Consequently, although certain rights of the defence relate only to the contentious proceedings which follow the delivery of the statement of objections, other rights, such as the right to legal representation and the privileged nature of correspondence between lawyer and client, recognised by the Court in Case
155/79
AM & S Europe
v
Commission
[1982] ECR 1575
, must be respected as from the preliminary-inquiry stage (Joined Cases
46/87 and 227/88
Hoechst
v
Commission
[1989] ECR 2859
, paragraphs 15 and 16; Case
85/87
Dow Benelux
v
Commission
[1989] ECR 3137
, paragraph 27; and Joined Cases
97/87 to 99/87
Dow Chemical Ibérica and Others
v
Commission
[1989] ECR 3165
, paragraphs 12 and 13).
In any event, the European Court of Human Rights itself has recognised, in criminal cases, that, although Article 6 of the ECHR normally requires that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation, that right may be subject to restrictions for good cause and that the question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing (see Eur. Court HR,
John Murray v. the United Kingdom
, 8 February 1996-I, § 63
Reports of Judgments and Decisions
1996).
However, in the context of the provisions of Article 14 of Regulation No 17, it is necessary to ensure that observance of the rights of the defence does not impair the effectiveness of investigations to enable the Commission to carry out its role as guardian of the Treaty in competition matters (Case
T-59/99
Ventouris
v
Commission
[2003] ECR II-5257
, paragraph 122). The Court of Justice thus recognised that the powers to carry out investigations without previous notification did not constitute an infringement of the fundamental rights of undertakings, since the aim of the powers given to the Commission by Article 14 of Regulation No 17 was to enable it to carry out its duty under the EC Treaty of ensuring that the rules on competition were applied in the internal market, to prevent competition from being distorted to the detriment of the public interest, individual undertakings and consumers and to contribute to the maintenance of the system of competition intended by the Treaty which undertakings are absolutely bound to comply with (
National Panasonic
v
Commission
, cited in paragraph 227 above, paragraph 20).
That is why it is necessary to weigh the general principles of European Union law relating to the rights of the defence against the effectiveness of the Commission’s powers of investigation and thus to prevent the possible destruction or concealment of relevant documents.
The Court therefore takes the view that the presence of an undertaking’s external or in-house lawyer is possible when the Commission carries out an investigation, but that the presence of an external or in-house lawyer cannot determine the legality of the investigation. When an undertaking so desires, and in particular when it does not have a lawyer at the investigation site, it can thus request the advice of a lawyer by telephone and ask that lawyer to go there as soon as possible. In order to ensure that the exercise of that right to legal assistance does not impair the proper conduct of the investigation, the persons charged with carrying out the investigation must be able to enter all the undertaking’s premises immediately, to notify it of the inspection decision and to occupy the offices of their choice, without waiting until the undertaking has consulted its lawyer. The persons charged with carrying out the investigation must also be put in a position to control the undertaking’s telephone and computer communications in order, in particular, to prevent the undertaking from contacting other undertakings which are also the subject of an investigation decision. Moreover, the time which the Commission is required to grant an undertaking to enable it to contact its lawyer before the Commission starts consulting the books and other records, taking copies, affixing seals on premises or documents or asking any representative or member of staff of the undertaking for oral explanations depends on the particular circumstances of each individual case and, in any event, can be only extremely limited and reduced to a strict minimum.
In the present case, by refusing to accede to the applicant’s request to await the arrival of its external lawyers in a waiting room before allowing the Commission to enter its premises, and in particular the office of its managing director, the Commission did not infringe its rights of defence. Consequently, the applicant’s refusal to grant the Commission’s inspectors access to its building before its lawyers arrived, which caused a delay of 47 minutes in the carrying out of the investigation, must be classified as refusal to submit to an investigation decision within the meaning of the provisions of Article 15(1)(c) of Regulation No 17.
– Second incident
The applicant submits that the incident which occurred in the afternoon of 1 October 2002 did not amount to a refusal to submit to the investigation decision, since it was very brief and therefore entailed no risk of documents being destroyed or concealed.
However, it is apparent from the documents produced by the Commission that, during the afternoon of 1 October 2002, the applicant’s external lawyers, once they had arrived at the site, refused the Commission access to the office of one of the directors, on the ground that no documents relating to bitumen were in that office, until, at the Commission’s request, the officials of the Netherlands competition authority contacted the police. The official report drawn up by the Commission does not specify the exact delay caused by those discussions. The Commission’s investigation decision of 26 September 2002 did however authorise the inspectors to enter all the undertaking’s premises, land and means of transport during normal office opening hours and to examine all the books and business records.
According to the case-law, undertakings are under an obligation to cooperate actively in the investigative measures in the course of the preliminary inquiry procedure (
Aalborg Portland and Others
v
Commission
, cited in paragraph 158 above, paragraphs 65, 207 and 208).
Moreover, both the purpose of Regulation No 17 and the list of powers conferred on the Commission’s officials by Article 14 thereof show that the scope of investigations may be very wide. In that regard, the right to enter any premises, land and means of transport of undertakings is of particular importance inasmuch as it is intended to permit the Commission to obtain evidence of infringements of the competition rules in the places in which such evidence is normally to be found, that is to say, on the business premises of undertakings (
Hoechst
v
Commission
, cited in paragraph 228 above, paragraph 26).
The Courts of the European Union have also pointed out that the Commission may exercise its investigative powers on all the business premises of the undertaking which is the subject of the decision taken by it, while having regard to the rights of the defence (see, to that effect,
Hoechst
v
Commission
, cited in paragraph 228 above, paragraphs 14 and 15) and to rights attaching to the protection of property (see Eur. Court HR,
Société Colas Est and Others v. France
, no. 37971/97 §§ 40 and 41, ECHR 2002-III; Case
C-94/00
Roquette Frères
[2002] ECR I-9011
, paragraph 29, and order of 17 November 2005 in Case C-121/04 P
Minoan Lines
v
Commission
, not published in the ECR, paragraph 37). Furthermore, it is for the Commission, and not for the undertaking concerned or a third party, to decide whether or not a document must be produced to it (
AM & S Europe
v
Commission
, cited in paragraph 228 above, paragraph 17).
Consequently, the mere fact that the applicant’s lawyers initially refused to grant the Commission access to the office of one of its directors is sufficient for the applicant to be considered to have refused to submit totally to the investigation decision, without there being any requirement for the Commission to show that the delay caused by that refusal may have led to the destruction or concealment of documents.
It follows from all of the foregoing that the Commission did not err in the legal characterisation of the facts by classifying those two incidents as refusal to submit to an investigation decision.
The principle of sound administration
Finally, the applicant alleges that the Commission infringed the principle of sound administration by not drawing up the official reports until after the investigations and by sending them to it only in the context of access to the file, that is, after notification of the statement of objections, thus preventing it from submitting any comments it might have in due time.
It must however be pointed out that no legislative provision required the Commission to draw up an official report of refusal to submit to the investigation decision within a specific time, or to send that document to the undertaking concerned within a particular time. The Courts of the Union take the view that the principle of proper administration cannot transform into an obligation that which the legislature did not view as being one (see, to that effect, Case
C-255/90 P
Burban
v
Parliament
[1992] ECR I-2253
, paragraph 20).
The Court notes that, in any event, the applicant had the opportunity to respond to the content of those two official reports when the Commission granted it access to the file after notification of the statement of objection, but that it did not do so.
Infringement of the provisions of Article 15 of Regulation No 17
In the third place, the applicant submits that, since only Regulation No 17 was in force at the material time, the Commission was not entitled to apply either the provisions of Regulation No 1/2003, which were not in force, or the Guidelines on the method of setting fines, which cannot derogate from the provisions of Regulation No 17. The Commission thus committed a misuse of powers.
Article 15(1)(c) of Regulation No 17 provided that the Commission could impose a maximum fine of EUR 5 000 on any undertaking not submitting to an investigation decision and Article 15(2) of the same regulation authorised it to impose fines of up to 10% of their turnover on undertakings committing an infringement of the provisions of Article 81(1) EC, calculated according to the gravity and duration of the infringement. The provisions of Article 15(1)(c) of Regulation No 17 thus allowed the Commission to impose a fine on an undertaking for refusal to cooperate during investigations, even though such an infringement of Article 81 EC is not established. Contrary to what the applicant claims, therefore, before the Guidelines on the method of setting fines came into force, no provision of Regulation No 17 precluded the Commission from penalising a refusal to cooperate during the course of the inquiry at the time of fixing the amount of the overall fine imposed under Article 15(2) of that regulation, rather than imposing a separate fine on the undertaking under the provisions of Article 15(1)(c) of that regulation.
According to the case-law (see, for example, Case
C-331/88
Fedesa
[1990] ECR I-4023
, paragraph 24), adoption by a European Union institution of a measure with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case constitutes a misuse of powers. The Courts of the Union thus hold that a measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated (see Joined Cases
C-186/02 P and C-188/02 P
Ramondín and Others
v
Commission
[2004] ECR I-10653
, paragraph 44 and the case-law cited).
It must therefore be established whether, as the applicant maintains, the adoption by the Commission of the Guidelines on the method of setting fines, which expressly provide that the Commission may take into account a refusal to cooperate or an attempt to obstruct the Commission in carrying out its investigations as aggravating circumstances in setting the fine, was mainly intended to circumvent the upper limit of EUR 5 000 laid down by Article 15(1)(c) of Regulation No 17.
The Courts of the Union have already stated that Regulation No 17 leaves a wide discretion to the Commission in setting fines. Consequently, the introduction by the latter of a new method of calculating fines, by means of the Guidelines on the method of setting fines, which may, in certain cases, lead to increased fines, but without exceeding the maximum level established by that regulation, cannot be regarded as an aggravation, with retroactive effect, of the fines as legally provided for by Article 15 of Regulation No 17, which infringes the principles of legality and legal certainty (
Dansk Rørindustri and Others
v
Commission
, cited in paragraph 176 above, paragraphs 252, 254, 258, 260, 261 and 267, and Case
T-23/99
LR AF 1998
v
Commission
[2002] ECR II-1705
, paragraph 235).
The Courts of the Union have further pointed out that, since Article 15(2) of Regulation No 17 did not lay down an exhaustive list of the criteria which the Commission could take into account when fixing the amount of the fine, the conduct of the undertaking during the administrative procedure, and in particular a refusal to cooperate or attempts to obstruct the Commission in carrying out its investigations, could be one of the factors to be taken into account when fixing that fine (Case
C-277/87
Sandoz prodotti farmaceutici
v
Commission
[1990] ECR I-45
, Case
C-298/98 P
Finnboard
v
Commission
[2000] ECR I-10157
, paragraph 56; and
HFB and Others
v
Commission
, cited in paragraph 222 above, paragraphs 474 and 475, confirmed on that point by
Dansk Rørindustri and Others
v
Commission
, cited in paragraph 176 above, paragraph 351).
It is clear from all of the foregoing that the applicant has not established that the Guidelines on the method of setting fines, inasmuch as they expressly provide that the Commission may take into account a refusal to cooperate or an attempt to obstruct the Commission in carrying out its investigations as aggravating circumstances in fixing the fine, were adopted with the main purpose of evading the penalty procedure laid down by the provisions of Article 15(1)(c) of Regulation No 17, and in particular the upper limit of EUR 5 000.
In conclusion, the Court considers that it was open to the Commission, in this case, to penalise a refusal to cooperate, either by imposing on the undertaking in question a maximum fine of EUR 5 000 pursuant to Article 15(1)(c) of Regulation No 17 or by taking account, in fixing the amount of the fine imposed on the undertaking under Article 15(2) of the same regulation (now Article 23(2) of Regulation No 1/2003, which was in force at the time when it adopted the contested decision), of the aggravating circumstance of refusal to cooperate with the Commission in carrying out its investigations, and that the misuse of powers alleged is not established.
Disproportionate nature of the increase in the fine for refusal to cooperate
In the fourth and last place, the applicant submits that increase in the basic amount of the fine of 10%, that is EUR 1.71 million, imposed by the Commission on the ground of refusal to cooperate, is, in any event, disproportionate in the light of the facts described in the official reports.
It should be pointed out that fines constitute an instrument of the Commission’s competition policy and that that institution must therefore be allowed a margin of discretion when fixing their amount, in order that it may direct the conduct of undertakings towards compliance with the competition rules (Case
T-150/89
Martinelli
v
Commission
[1995] ECR II-1165
, paragraph 59; Case
T-49/95
Van Megen Sports
v
Commission
[1996] ECR II-1799
, paragraph 53; and Case
T-229/94
Deutsche Bahn
v
Commission
[1997] ECR II-1689
, paragraph 127). Nevertheless, it is for the Court to verify whether the amount of the fine imposed is in proportion to the duration of the infringement and to the other factors capable of affecting the assessment of the gravity of the infringement, such as the influence which the undertaking was able to exert on the market, the profit which it was able to derive from those practices, the volume and the value of the services concerned and the threat that the infringement poses to the objectives of the European Union (
Musique Diffusion française and Others
v
Commission
, cited in paragraph 176 above, paragraphs 120 and 129).
Even though the Commission is not bound by its previous practice, it may be useful to the Court, in assessing whether or not the increase in the fine imposed on the applicant was proportionate, to know what increases have been imposed on other undertakings by the Commission for that same reason. It is not inconceivable that the Court, in the exercise of its unlimited jurisdiction, may find it necessary to increase that increase. However, the same rate of 10% was also applied in three other cases in which the Commission penalised undertakings with a specific increase in the fine for refusal to cooperate. In the ‘
Greek Ferries
’ case, that increase penalised an undertaking which had informed the other undertakings which were members of the cartel of the replies which it had given to a request for information and had suggested to them that they modify their prices (
Minoan Lines
v
Commission
, cited in paragraph 44 above, paragraphs 335 to 339). In the
Nintendo
case, that increase penalised an undertaking which had given a false reply to a request for information (Commission Decision of 30 October 2002, COMP/35.706 – PO Nintendo Distribution (
OJ 2003 L 255, p. 33
)). Finally, in the ‘
Industrial bags
’ case (Commission Decision of 30 November 2005, COMP/F/38.354 – Industrial bags), that increase penalised an undertaking one of whose employees had destroyed a document selected by the inspectors during the investigation, even though the undertaking had subsequently sent a copy of that document to the Commission.
In the present case, the Court takes the view that, in the light of the relatively brief duration of the applicant’s obstruction of the Commission’s investigations, there is no need to exercise its unlimited jurisdiction in order to increase the increase applied by the Commission in this case. Moreover, that increase of 10% in the amount of the fine does not appear disproportionate having regard, on the one hand, to the applicant’s conduct during the investigations and to the repeated nature of its attempts to obstruct the investigations on the same day and, on the other, to the importance of investigations as a necessary tool for the Commission in carrying out its role as guardian of the Treaty in competition matters (
Ventouris
v
Commission
, cited in paragraph 230 above, paragraph 122) and the need to steer the conduct of undertakings towards compliance with the competition rules.
The applicant’s argument must therefore be rejected.
2. The roles of instigator and leader
a) Role of instigator
Arguments of the parties
The applicant submits that, by classifying the applicant, together with SNV, as instigator of the cartel, the Commission made errors of fact which justify the cancellation in full or in part of the 50% increase in the fine imposed on it on that basis. According to the case-law, that classification may apply only to an undertaking which has persuaded or encouraged other undertakings to establish a cartel or to join it (Case
T-15/02
BASF
v
Commission
[2006] ECR II-497
, paragraphs 316 and 321). In the present case, the Commission relied on two documents which were insufficient for it to be classified as instigator of the cartel, even though SNV, at the very most, used the applicant to contact the other W5 road builders.
In the first place, the Commission relied on a passage in the applicant’s reply to the statement of objections which had been taken out of context. That document shows only that in 1993 SNV made the applicant a price proposal, which it reported at the next W5 meeting, and is not sufficient for the purpose of establishing that the applicant proposed that the W5 should accept it.
In the second place, the Commission used a Wintershall report of 20 February 1992 indicating that the applicant had informed it that it had approached SNV to ask it to make proposals for cooperation between the suppliers and the W5 and that SNV had thus submitted to it an offer of a special rebate for the W5 in 1993. That document is however contradicted by an internal SNV memo of 1995, does not correspond to the recollections of the applicant’s employee to whom reference is made and its content is unlikely, since Wintershall is a company which has little contact with the applicant.
In any event, the Commission cannot rely on only one document, dating from 1992, that is, before the start of the cartel, and not supported by any other material in the file, in order to establish its role as instigator of the cartel.
The Commission points out that the case-law draws a distinction between the role of instigator and that of leader and that, if the Court were to hold that the evidence is insufficient as regards one of the two roles, it could, none the less, maintain the 50% increase in the fine (
BASF
v
Commission
, cited in paragraph 257 above, paragraphs 342 to 349). So far as concerns classification as an instigator of a cartel, the case-law further points out that the undertaking in question must have persuaded or encouraged other undertakings to establish the cartel or to join it (
BASF
v
Commission
, cited in paragraph 257 above, paragraph 321). In the present case, the Commission states that it relied on two documents from which it is apparent that the applicant encouraged other undertakings to set up a cartel by taking the initiative, as the largest road builder, of approaching SNV, the largest supplier, to ask it to make some suggestions regarding the possibilities of collaboration between the two groups and by subsequently outlining to the other W5 undertakings the proposal made by SNV regarding a special rebate. The statement by the applicant’s employee made in June 2005 in the context of the reply to the statement of objections, according to which he never took the initiative in pursuing consultation, therefore conflicts with the Wintershall report recounting a conversation with that same employee. The Commission points out that, on the other hand, the Wintershall document of 1992, which mentions future cooperation, is consistent with the fact that the cartel started in 1993, as established by, inter alia, the applicant’s reply to the statement of objections, which mentions discussions with SNV about a special rebate granted to the W5 from 1993.
Findings of the Court
Where an infringement has been committed by several undertakings, it is appropriate, when setting the amount of the fines, to consider the relative gravity of the participation of each of them (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
, paragraph 623, and
Aalborg Portland and Others
v
Commission
, cited in paragraph 158 above, paragraph 92), which implies in particular that the roles played by each of them in the infringement for the duration of their participation in it should be established (
Commission
v
Anic Partecipazioni
, cited in paragraph 30 above, paragraph 150, and Case
T-6/89
Enichem Anic
v
Commission
[1991] ECR II-1623
, paragraph 264).
It follows, in particular, that the role of instigator or leader played by one or more undertakings in a cartel must be taken into account in setting the fine, in so far as undertakings which have played such a role must therefore bear a special responsibility by comparison with other undertakings (see, to that effect, Case
T-347/94
Mayr-Melnhof
v
Commission
[1998] ECR II-1751
, paragraph 291, 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
[2004] ECR II-1181
, paragraph 301).
In accordance with those principles, Section 2 of the Guidelines on the method of setting fines lays down, under the heading of aggravating circumstances, a non-exhaustive list of circumstances which can result in an increase in the basic amount of the fine and include in particular ‘the role of leader in or instigator of the infringement’ (
BASF
v
Commission
, cited in paragraph 257 above, paragraphs 280 to 282).
It should be noted that, in order to be classified as an instigator of a cartel, an undertaking must have persuaded or encouraged other undertakings to establish the cartel or to join it. By contrast, it is not sufficient merely to have been a founding member of the cartel. That classification should be reserved to the undertaking which has taken the initiative, if such be the case, for example by suggesting to the other an opportunity for collusion or by attempting to persuade it to do so (
BASF
v
Commission
, cited in paragraph 257 above, paragraph 321). However, the Courts of the European Union do not require the Commission to have information regarding the development or detailed planning of the cartel. Lastly, they have made it clear that instigation is concerned with the establishment or enlargement of a cartel (
BASF
v
Commission
, cited in paragraph 257 above, paragraph 316) and it is therefore conceivable that several undertakings might simultaneously play a role of instigator within the same cartel.
In the present case, it is apparent from recital 342 of the contested decision that the Commission considered that the applicant had borne a special responsibility for its role in instigating the cartel. It pointed out that the case-law classified as an instigator of a cartel an undertaking which had persuaded or encouraged other undertakings to establish the cartel or to join it (
BASF
v
Commission
, cited in paragraph 257 above, paragraph 321). It relied for that view on three documents which refer to initiatives which it considers to be at the origin of the cartel, since they served to persuade other undertakings to establish the cartel. According to the contested decision, those documents prove, firstly, that the applicant proposed to SNV that it make some suggestions for cooperation between the suppliers and the W5 and, secondly, that the applicant then passed on to the other builders the proposal for special rebates made by SNV. The documents in question are an extract from the applicant’s reply to the statement of objections, an HBG note of 8 July 1994 and an internal Wintershall report of 20 February 1992.
In the first place, the Commission thus relied, in recital 342 of the contested decision, by reference to recital 175, on a note from HBG, another large builder, of 8 July 1994, referring to agreements concluded in March 1994 between the W5, represented by the applicant, and the suppliers, represented by SNV, that entered into force on 1 April 1994, to a rumour that the suppliers might not be complying with those agreements and to the need to contact an employee of the applicant in that regard. The document thus indicates that the applicant negotiated agreements on behalf of the W5 with SNV and that another large builder regarded the applicant as the interlocutor best placed, within the W5, to resolve a problem with the operation of the cartel. Although that document permits the inference that the applicant was one of the founding members of the cartel, it cannot suffice to prove, as the case-law referred to in paragraph 265 above requires, that the applicant encouraged or persuaded other undertakings to join the cartel.
In the second place, the Commission relied on an extract from the applicant’s reply to the statement of objections (recitals 97 and 177 of the contested decision), in which the applicant itself alludes to the existence of discussions with SNV in 1993 on a special rebate granted to the W5 and to the applicant’s passing on of the information concerning that rebate to the other W5 members. However, it must be pointed out that, in passing on that information to the other W5 members, the applicant did not necessarily intend to encourage or persuade them to join the cartel.
Finally, in the third place, the Commission used an internal Wintershall report of 20 February 1992. That document, drafted following a visit made on 18 February 1992 to Wintershall by the applicant’s employee who subsequently participated regularly in cartel meetings, indicates that the applicant asked SNV as ‘market leader’ to make proposals for cooperation between the suppliers and the W5, proposals which amount to the creation of a purchasing monopoly. The document indicates that Wintershall pointed out to the applicant during that visit that that course of action was problematic in terms of cartel law.
The applicant has sought to call into question the evidential value of that document by pointing out that it is contradicted by an internal SNV note of 1995 indicating that SNV alone took the initiative in approaching the W5, that it does not correspond to the recollections of its employee to whom reference is made and that its content is unlikely, since it is hardly credible that it would have passed on such confidential information to its interlocutor. However, the Court is of the view that that document is credible, since it seems unlikely that Wintershall would have deliberately reproduced false information in a purely internal report of 1992, namely
in tempore non suspecto
. Moreover, contrary to what the applicant claims, the SNV note of 6 February 1995 does not support the assertion that only the suppliers were behind the cartel (see paragraph 37 above).
Nevertheless, the fact that the Commission considered that the cartel had begun only on 1 April 1994 reduces the evidential value of that document in support of the classification of the applicant as an instigator, since it had been drafted more than two years before that date. That document alone cannot therefore suffice for it to be concluded, in the present case, that the applicant played the role of instigator in the infringement in question.
It is clear from all of the foregoing that the Commission’s assessment contained in the contested decision that the applicant played a role of instigator in the infringement in question by proposing to SNV that it make proposals for cooperation between the suppliers and the W5 and by passing on to the other builders the proposal for special rebates made by SNV is insufficiently substantiated.
Since the Commission did not submit before the Court any further evidence in addition to that set out in recital 342 of the contested decision in order to prove the applicant’s role of instigator in the infringement in question, the Court’s analysis will focus on the role of leader played by the applicant in that infringement.
b) Role of leader
Arguments of the parties
The applicant submits that the Commission imputed to it the role of leader in the cartel even though there was no evidence to that effect. However, in order to establish that an undertaking played the role of leader, the Courts of the European Union require the Commission to prove that that undertaking took specific steps giving a major boost to the implementation of the collusive arrangement, thereby clearly distinguishing itself from the other participants in the arrangement (
BASF
v
Commission
, cited in paragraph 257 above, paragraph 374).
In the present case, the Commission based its finding that the applicant was a leader in the cartel on four considerations: the role played by it in the negotiations with the suppliers on behalf of the large builders during 1994 and 1995, the first years of the cartel; from 1996, it took the initiative of organising the cartel meetings between the suppliers and the large builders; it facilitated the holding of those cartel meetings by making its premises available; finally, it performed a chairmanship function at those meetings. According to the applicant, none of those considerations is valid.
In the first place, the Commission based its assertion that, from 1994 to 1996, the applicant concluded agreements with SNV on behalf of the large suppliers exclusively on a note seized at the premises of HBG, which refers only to rumours which, moreover, subsequently proved unfounded, since the suppliers increased their prices in December 1994. Furthermore, those rumours were disputed by the statement of one of its employees and the author of the HBG note never participated in cartel meetings.
In the second place, the Commission’s assertion that, from 1996, the applicant took the initiative of organising the cartel meetings between the suppliers and the large builders is based only on the statements of SNV and Kuwait Petroleum made in the context of their attempts to benefit from the Leniency Notice, which conflict with each other and, furthermore, do not tally with several documents in the file, such as the instructions from the applicant’s management secretariat. It submits that several documents confirm that SNV always took the initiative of organising those meetings.
In the third place, the Commission cannot consider that the fact that the applicant regularly made its buildings available for the holding of the cartel meetings means that it played a special role. On the one hand, that circumstance is explained by the favourable central location of its offices and, on the other, the meetings were sometimes held in other places. Moreover, the Commission may not rely on a letter sent by the company Heijmans to the applicant, complaining about the lack of consultation in the organisation of the meeting of 16 February 2001, since that letter was merely an exchange between a Heijmans employee and his predecessor, who now worked for the applicant.
In the fourth and last place, the applicant submits that the assertion that it performed a chairmanship role during cartel meetings is based only on a biased statement by a Kuwait Petroleum employee, made under the Leniency Notice, the content of which it disputes. It points out that that single statement on its own cannot be endowed with any evidential value whatsoever, particularly as it contained inaccuracies, and that, furthermore, the Commission cannot rely on the statement of another Kuwait Petroleum employee who never directly attended a bitumen consultation meeting.
The Commission rejects the applicant’s arguments.
Findings of the Court
According to well-established case-law, where an infringement has been committed by a number of undertakings, it is necessary, in determining the amount of the fines, to establish their respective roles in the infringement throughout the duration of their participation in it (
Commission
v
Anic Partecipazioni
, cited in paragraph 30 above, paragraph 150, and
Enichem Anic
v
Commission
, cited in paragraph 262 above, paragraph 264). It follows, in particular, that the role of ‘ringleader’ played by one or more undertakings in a cartel must be taken into account for the purposes of calculating the amount of the fine, in so far as the undertakings which played such a role must therefore bear special responsibility in comparison with the other undertakings (
Finnboard
v
Commission
, cited in paragraph 249 above, paragraph 45).
In accordance with those principles, Section 2 of the Guidelines on the method of setting fines lays down, under the heading of aggravating circumstances, a non-exhaustive list of circumstances which can result in an increase in the basic amount of the fine, which includes ‘the role of leader in or instigator of the infringement’ (
BASF
v
Commission
, cited in paragraph 257 above, paragraphs 280 to 282).
In order to be classified as a leader in a cartel, an undertaking must have been a significant driving force for the cartel and have borne individual and specific liability for the operation of the cartel. That factor must be assessed in the light of the overall context of the case (
BASF
v
Commission
, cited in paragraph 257 above, paragraphs 299, 300, 373 and 374, and Case
T-410/03
Hoechst
v
Commission
[2008] ECR II-881
, paragraph 423). It may, inter alia, be inferred from the fact that the undertaking, through specific initiatives, voluntarily gave a fundamental boost to the cartel (
BASF
v
Commission
, cited in paragraph 257 above, paragraphs 348, 370 to 375 and 427, and
Hoechst
v
Commission
, cited above, paragraph 426). It may also be inferred from a combination of indicia which reveal the determination of the undertaking to ensure the stability and success of the cartel (
BASF
v
Commission
, cited in paragraph 257 above, paragraph 351).
That is the case where the undertaking participated in cartel meetings on behalf of another undertaking which did not attend them and notified that other undertaking of the results of those meetings (
BASF
v
Commission
, cited in paragraph 257 above, paragraph 439). The same applies where it is shown that that undertaking played a central role in the actual operation of the cartel, for example by organising numerous meetings, collecting and distributing information within the cartel, and by most often suggesting proposals relating to the operation of the cartel (see, to that effect, Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82
IAZ International Belgium and Others
v
Commission
, cited in paragraph 176 above, paragraphs 57 and 58, and
BASF
v
Commission
, cited in paragraph 257 above, paragraphs 404, 439 and 461).
Moreover, the fact of actively ensuring compliance with the agreements concluded within the cartel is decisive evidence of the role of leader played by an undertaking (
HFB and Others
v
Commission
, cited in paragraph 222 above, paragraph 577).
By contrast, the fact that an undertaking exerted pressure, or even dictated the conduct of other members of the cartel is not a necessary precondition for that undertaking to be described as a leader in the cartel (
BASF
v
Commission
, cited in paragraph 257 above, paragraph 374). The market position enjoyed by an undertaking and the resources at its disposal also cannot constitute evidence of a role of leader in the infringement, even though they form part of the context in which such evidence must be assessed (see, to that effect, Case
T-224/00
Archer Daniels Midland and Archer Daniels Midland Ingredients
v
Commission
[2003] ECR II-2597
, paragraph 241, and
BASF
v
Commission
, cited in paragraph 257 above, paragraph 299).
Lastly, it should be borne in mind that the Court has already held that the Commission is entitled to find that several undertakings acted as a leader in a cartel (
Archer Daniels Midland and Archer Daniels Midland Ingredients
v
Commission
, cited in paragraph 286 above, paragraph 239).
It is therefore for the Court to assess, in the light of the principles set out above, whether the Commission has adduced sufficient evidence to establish that the applicant played a leadership role in the cartel.
In the present case, it is apparent from the contested decision that the Commission considered that SNV, within the group of suppliers, and the applicant, within the W5, bore special responsibility for their respective ‘leadership’ roles in the cartel for the entire period of its operation (recitals 343 to 349). The Commission thus took into account four main considerations in finding that the applicant had acted as a leader in the infringement: in 1994 and 1995, it established contact with SNV, which facilitated the setting up of the cartel; from 1996 onwards, SNV would approach the applicant for a price change, the applicant then inviting the other large builders to a meeting; the pre-meetings of the W5 and those of the cartel were often organised by the applicant, which sent out the invitations, and took place at its premises; it was the spokesperson for the large builders and led the discussion during the meetings with the suppliers. The Commission relied on various documents, contemporaneous with and postdating the cartel, in order to reach that conclusion. The applicant submits that none of those considerations is valid.
The Commission found that the applicant had played a leading role in the negotiations with the suppliers in 1994 and 1995, basing its finding on an HBG note of 8 July 1994.
It is apparent from that internal HBG document that an agreement was concluded between the W5, represented by an employee of the applicant, and the oil companies, represented by SNV, for 1994, but that, contrary to that agreement, the oil companies wanted to increase their prices, and that HBG had then wished to contact that same employee of the applicant in that connection. Although that document may seem to relate to a rumour regarding the oil companies’ decision to increase their prices, it does however make reference in a definite way to the existence of an agreement concluded through SNV and the applicant and to the fact that HBG turned to the applicant, thus constituting solid evidence of its leadership in the cartel.
Moreover, it is necessary to disregard the applicant’s argument that the author of the HBG note never attended a cartel meeting, since the Courts of the European Union have held that the fact that information is reported second hand has no influence on its probative value (Case
T-11/89
Shell
v
Commission
[1992] ECR II-757
, paragraph 86) and that, under the general rules of evidence, the fact that documents drawn up immediately after the meetings concerned and clearly without any thought for the fact that they might fall into the hands of third parties must be regarded as having great significance (Opinion of Judge Vesterdorf acting as Advocate General in Case
T-1/89
Rhône-Poulenc
v
Commission
[1991] ECR II-867, II-869
). In the present case, the author of the HBG note was responsible for purchasing bitumen for HBG and worked closely with the person who participated directly in the consultations with the W5, and then in the cartel meetings. Accordingly, his notes drafted at the time of the facts have significant probative value.
The Commission further found that, from 1996 onwards, the applicant, together with SNV, took the initiative of organising the cartel meetings, relying on statements from SNV and Kuwait Petroleum. It is apparent from those statements (SNV statement of 10 October 2003 and Kuwait Petroleum statement of 9 October 2003, recital 344 of the contested decision) that SNV was to inform the applicant of any price change, those two companies meeting to determine whether a cartel meeting was necessary.
The documents on which the applicant relies in order to counter those statements do not give grounds for calling into question the Commission’s conclusion that the applicant played a leadership role. They are the internal SNV note of 6 February 1995, recital 110 of the contested decision relating to SNV’s request to the applicant to organise a consultation meeting on 28 March 2000 and the internal instructions from the applicant’s management secretariat of 1 October 2002 indicating that the initiative for the cartel meetings came from SNV (recital 345 of the contested decision). However, as stated in paragraph 37 above, the SNV note of 6 February 1995 does not make it possible to establish whether the suppliers imposed the cartel on the large builders. Moreover, the fact that SNV requested the holding of a cartel meeting in 2000 and that an internal document of the applicant mentioned in 2002 that the initiative for the meetings came from SNV is not sufficient to invalidate the Commission’s assertion that the cartel meetings were organised following contacts between SNV and the applicant. It must be remembered that that cartel was bilateral in nature and that the Courts of the Union have held that the Commission is entitled to attribute the role of leader to several undertakings in the cartel (
Archer Daniels Midland and Archer Daniels Midland Ingredients
v
Commission
, cited in paragraph 286 above, paragraphs 299 to 301).
In order to attribute a leadership role to the applicant, the Commission further took into account the fact that the applicant had regularly made its buildings available for the holding of cartel meetings. The Commission relied for that purpose on Kuwait Petroleum’s reply of 16 September 2003 to a request for information, on Kuwait Petroleum’s statements of 9 October 2003 (recital 345 of the contested decision), on invitations sent out by the applicant for the cartel meeting of 28 March 2000 (recital 110 of the contested decision making reference to faxes of 16 and 21 March 2000 sent by the applicant to SNV, NBM, HWZ, Ballast Nedam, Dura Vermeer and Heijmans) and on a letter addressed to the applicant by Heijmans complaining about the lack of consultation in the organisation of the meeting of 16 February 2001 (recital 346 of the contested decision).
The applicant however submits that cartel meetings sometimes took place at its premises because of its central location and that the Commission was not entitled to use as evidence a letter from a Heijmans employee. Regardless of the context in which Heijmans drafted its complaint to the applicant, it is strong evidence of the applicant’s leadership role in the organisation of the cartel meetings, which must be assessed in the light of the other concordant documents cited by the Commission. Moreover, the applicant cannot plead the mere central geographical location of its premises in order to minimise its role in the cartel.
Finally, the Commission considered that the applicant had exercised a chairmanship role during the cartel meetings until 2000, relying on the statements of two Kuwait Petroleum employees of 1 October 2003 (recitals 346 and 347 of the contested decision). The applicant challenges the validity of those statements, which, moreover, contain numerous errors and of which one comes from an employee who never directly attended cartel meetings.
It must however be noted that those two statements agree and that the assistant to Kuwait Petroleum’s bitumen manager, who participated in the cartel meetings, attended at least the pre-meetings between the suppliers and was thus closely associated with the cartel meetings. As the Commission rightly points out, account must also be taken of the fact that Kuwait Petroleum had no interest in exaggerating the applicant’s role during the conduct of the cartel meetings.
All of the foregoing considerations lead the Court to conclude that the Commission has adduced several concordant items of evidence which, taken as a whole, support the finding that the applicant, by establishing contacts with SNV and thereby facilitating the setting up of the cartel, by inviting, from 1996 onwards, the other large builders to meet following contacts with SNV, by organising numerous cartel meetings at its premises and by acting as a spokesperson for the W5 during the cartel meetings, constituted a significant driving force for the cartel, justifying its classification as a leader.
Consequently, the Commission did not commit any manifest error of assessment by finding, on the basis of a body of consistent and convergent evidence, that the applicant took on the role of leader in the infringement.
3. Conclusion concerning aggravating circumstances
It is clear from paragraphs 262 to 273 above that the Commission has failed to establish to the requisite legal standard that the applicant played the role of instigator of the infringement in question. The Court must therefore exercise its unlimited jurisdiction as regards the assessment of the role played by the applicant in the infringement in question. It should be recalled, in this regard, that the Commission imposed on the applicant a single increase of 50% in the basic amount of the fine in respect of the aggravating circumstance referred to in the third indent of Section 2 of the Guidelines on the method of setting fines.
It should further be recalled that, although the Courts of the European Union draw a distinction between the roles of instigator and leader, they nevertheless take the view that, even if the evidence adduced by the Commission is insufficient as regards one of the two roles, they can nevertheless uphold the increase in the fine envisaged by the Commission in the exercise of their unlimited jurisdiction (see, for a case in which only the role of leader was upheld,
BASF
v
Commission
, cited in paragraph 257 above, paragraph 354).
The Court takes the view that, in the present case, in view of the importance of the applicant’s leadership role as established in paragraphs 281 to 300 above, there is no need to reduce that increase. It is clear in particular from that analysis that the applicant was behind the establishment of the cartel, since, from 1996 onwards, it organised the pre-meetings of the W5 and those of the cartel, which took place at its premises, and that, finally, it led, on behalf of the whole of the W5, the discussion during the meetings with the suppliers.
Costs
Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

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

1.
Dismisses the action;

2.
Orders Koninklijke Wegenbouw Stevin BV to pay the costs.

Jaeger
Wahl
Soldevila Fragoso
Delivered in open court in Luxembourg on 27 September 2012.
[Signatures]
Table of contents

Facts

I – The applicant

II – Administrative procedure

III – Contested decision

Procedure and forms of order sought by the parties

Law

I – Claim for annulment of the contested decision

A – Introductory remarks

1. Arguments of the parties

2. Findings of the Court

B – Errors of fact

1. First error of fact, concerning the failure to take account of the opposition between the interests of the suppliers and those of the large builders

a) Arguments of the parties

b) Findings of the Court

2. Second error of fact, concerning the content of the agreements between the suppliers and the large builders

a) Arguments of the parties

b) Findings of the Court

3. Third error of fact, concerning the erroneous assessment of the large builders’ interest in the cartel

a) Arguments of the parties

b) Findings of the Court

4. Fourth error of fact, concerning the absence of impact of the cartel on competition in the road construction market

a) Arguments of the parties

b) Findings of the Court

5. Fifth error of fact, concerning the operation of the cartel: origin and development over time of the cartel and system of sanctions

a) Arguments of the parties

b) Findings of the Court

6. Sixth error of fact, relating to the role of ExxonMobil in the cartel

a) Arguments of the parties

b) Findings of the Court

C – Errors of law

1. Introductory remarks

2. First error in the legal characterisation of the facts: non-participation of the large builders in the suppliers’ cartel

a) Arguments of the parties

b) Findings of the Court

3. Second error in the legal characterisation of the facts, based on the absence of any anti-competitive object of the cartel

a) Arguments of the parties

b) Findings of the Court

4. Third error in the legal characterisation of the facts, relating to the Commission’s refusal to apply the provisions of Article 81(3) EC and the Guidelines on horizontal cooperation agreements

a) Arguments of the parties

b) Findings of the Court

5. Fourth error in the legal characterisation of the facts, relating to the incorrect definition of the relevant market and the erroneous determination of the large builders’ market position

a) Arguments of the parties

b) Findings of the Court

6. Fifth error in the legal characterisation of the facts, relating to the absence of indirect spill-over effects on the downstream market of road construction

a) Arguments of the parties

b) Findings of the Court

D – Infringement of essential procedural requirements and of the rights of the defence

1. Arguments of the parties

2. Findings of the Court

a) General principles relating to access to documents postdating the statement of objections

b) Application in the present case

II – The claim for cancellation or reduction of the fine

A – Determination of the basic amount of the fine

1. Classification as a very serious infringement

a) Arguments of the parties

b) Findings of the Court

2. Erroneous assessment of the impact of the cartel on the market

a) Arguments of the parties

b) Findings of the Court

3. Disproportionate nature of the starting amount

a) Arguments of the parties

b) Findings of the Court

4. Erroneous assessment of the duration of the infringement

a) Arguments of the parties

b) Findings of the Court

B – Aggravating circumstances

1. Aggravating circumstance relating to refusal to cooperate during the inspection

a) Arguments of the parties

b) Findings of the Court

Infringement of the rights of the defence arising from the content of the statement of objections

Error in the legal characterisation of the facts

– First incident

– Second incident

The principle of sound administration

Infringement of the provisions of Article 15 of Regulation No 17

Disproportionate nature of the increase in the fine for refusal to cooperate

2. The roles of instigator and leader

a) Role of instigator

Arguments of the parties

Findings of the Court

b) Role of leader

Arguments of the parties

Findings of the Court

3. Conclusion concerning aggravating circumstances

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