Judgment — ECLI:EU:T:2014:1094
Date: 2014-12-17
Language of the case: English
Court formation: Second Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - unfounded
Origin: Germany;United Kingdom;Italy

summary form in the application by putting forward complaints or arguments which are not contained in that application (Case T‑340/03 France Télécom v Commission [2007] ECR II‑107, paragraph 167 and the case-law cited). 329 In the present case, the annexes to the application referred to in paragraph 327 above supplement or support on specific points the arguments contained in paragraphs 76 to 80 of the application and it is possible for the Court to determine precisely the elements in those annexes that supplement or support those arguments. In those circumstances, there is therefore nothing to prevent the Court from taking into account annexes A.32 and A.34 to the application in the analysis of the present plea in law, with the result that the plea of inadmissibility raised by the Commission must be rejected. The applicants’ participation in the meetings and contacts of the cartel 330 As regards the substance, it is necessary first of all to recall the conclusion in paragraph 167 above, according to which, while the Commission has not established that the applicants participated in all of the collusive meetings and contacts to which it refers in the contested decision as regards the period between 10 March 1998 and 15 January 1999, it is, however, clear from the file that the applicants took part in various contacts and meetings during that period in which they exchanged commercially sensitive information with competitors, concerning, inter alia, prices and production volumes. The evidence examined in paragraphs 157 to 166 above also supports the Commission’s view that the applicants, during that period, participated in discussions which had as their object the allocation of supplies of carglass intended for certain models of vehicles. 331 As regards the infringement period which began on 15 January 1999, it must be emphasised that the applicants do not deny participating in 23 meetings referred to in table 2 in recital 98 of the contested decision and in 10 other contacts referred to in table 3 in the same recital. However, the applicants deny participating in six meetings referred to in table 2 and in five ‘other contacts’ referred to in table 3. – The meeting held in Paris in mid-2000 concerning the supply of carglass for the [confidential] 332 As regards, first of all, the meeting held in Paris in mid-2000 concerning the manufacturer [confidential], recitals 247 to 249 of the contested decision indicate that employees of the applicants, of AGC (Splintex) and of Saint-Gobain participated in that meeting and that it concerned the allocation of carglass supplies for the [confidential]. According to the applicants, the fact that the notes taken by an employee of the leniency applicant on that occasion mention that that model was ‘cover[ed] by [Pilkington]’ is not sufficient to establish that the applicants participated in that meeting or that they agreed to ‘cover’ [confidential], by quoting a higher price, in order to ensure that the latter undertaking obtained the carglass supply contract for that model. 333 The Commission emphasises that those handwritten notes must be read in the light of a passage in the statements made by the leniency applicant on 28 February 2008, in which the latter indicated that the applicants had agreed to quote a higher price than that of the leniency applicant as regards the model in question. The applicants nevertheless take the view that the passage in question is merely an attempted explanation based on the wording of the notes in question and that, in view of the vague nature of those notes on that point, the statements made by the leniency applicant are not credible. The applicants emphasise, in that respect, that the leniency applicant was not able to indicate the date and location of that meeting. 334 The Court considers, however, that, without it even being necessary to rule on whether employees of the applicants were present at that meeting, it can be seen from the very wording of the notes taken by an employee of the leniency applicant on that occasion, as well as the leniency applicant’s statements on those notes, that the applicants, at the very least, took part in the discussions relating to the award of the supply contract at issue and that they accepted, on that occasion, to ‘cover’ the leniency applicant’s offer by quoting a higher price. 335 That conclusion cannot be called into question by the applicants’ doubts as regards the credibility of the leniency applicant’s statements referred to by the Commission. First, as the Commission rightly emphasised, the passages from those statements to which it refers provide a consistent explanation of the extract from the notes taken by the employee of the leniency applicant as regards the supply of carglass for the [confidential]. It must therefore be considered that that passage is supported by other evidence (see, to that effect, JFE Engineering and Others v Commission, paragraph 82 above, paragraph 219, and Groupe Danone v Commission, paragraph 308 above, paragraph 285). Secondly, that explanation is particularly reliable since it ran counter to the leniency applicant’s interests; its contents were liable to confirm the leniency applicant’s participation in a specific collusion with the object of ensuring that a supply contract was awarded to it (see, by analogy, JFE Engineering and Others v Commission, paragraph 82 above, paragraphs 211 and 212, and judgment of 8 July 2008 in Case T‑54/03 Lafarge v Commission, not published in the ECR, paragraph 59). – The meeting held on 5 July 2000 concerning the supply of carglass for certain models of [confidential] and of [confidential] 336 According to recital 230 of the contested decision, the meeting held on 5 July 2000 concerning the carglass for certain models of [confidential] and of [confidential] took place at either a hotel near the Charles de Gaulle Airport in Paris or at the premises of a trade association in Rome. In the course of that meeting, the applicants, Saint-Gobain and AGC (Splintex) had discussions on the ‘covering’ of AGC (Splintex) as regards a supply contract relating to the [confidential]. On that occasion, those competitors also exchanged price information for the [confidential] model and envisaged sharing between each other the supply of carglass for a series of other models of the manufacturer [confidential]. 337 The applicants nevertheless claim that the Commission was not able to establish their participation in that meeting. In their submission, the oral statements of the leniency applicant are not sufficiently reliable given the fact that, first, it did not recall the location of that meeting and, secondly, it reported that meeting only at an advanced stage in the investigation procedure. 338 However, those arguments cannot be accepted. 339 The notes taken at the meeting of 5 July 2000 by an employee of the leniency applicant, when read in the light of the statements made by the leniency applicant, are sufficient to establish the applicants’ participation in that collusive contact. It is true that it cannot be established with certainty, on the basis of that evidence, that the applicants agreed to cover AGC (Splintex) with a view to the allocation to the latter of the carglass supply contract for the [confidential], since the references to the applicants on that point in the notes may be interpreted as a mere declaration of intent on the part of AGC (Splintex). The leniency applicant nevertheless confirmed in its statements that the table set out at the end of those notes reflected the allocation of contracts agreed between itself, Saint-Gobain and the applicants concerning various models of [confidential], on the basis of a collusion on prices. The reliability of that statement of the leniency applicant cannot be called into question on the ground that it could not identify with certainty the location of the meeting, since such a lapse of memory may be explained by the fact that the statement in question was made almost five years after the date of that meeting. The stage of the investigation procedure at which that statement was made is also irrelevant since that statement lacks neither precision nor consistency and it is supported by notes which are, in themselves, sufficiently clear. 340 It follows that the Commission was also entitled to find that the applicants had participated in a collusive contact on 5 July 2000. – The meeting held in late October or early November 2000 concerning certain models of [confidential] 341 According to recital 275 of the contested decision, another trilateral meeting was held in late October or early November 2000, at which employees of the applicants, of Saint-Gobain and of AGC (Splintex) exchanged prices in order to share the supply of carglass for the [confidential]. According to that recital, the applicants, at that meeting, obtained assurances from Saint-Gobain and AGC (Splintex) that they would ‘cover’ the applicants for the supply of quarterlights and rear windows for the [confidential], by quoting higher prices to that manufacturer. 342 The applicants do not deny that that meeting took place, but submit that it cannot be concluded from the notes taken by an employee of the leniency applicant either that they took part in it or, a fortiori, that they participated in the agreement that the Commission believed it identified in that meeting. Moreover, the leniency applicant’s statements are vague on that point. 343 In that respect, it must first of all be pointed out that the notes in question indeed contain a list of carglass pieces relating to the model [confidential] as well as commercially sensitive information such as prices and production costs as regards the applicants, Saint-Gobain and AGC (Splintex). Next, contrary to what is claimed by the applicants, the leniency applicant’s statements provide a precise and consistent explanation of the meaning of those notes. According to that explanation, it was decided at that meeting that the supply of quarterlights and rear windows for the [confidential] would be allocated to the applicants, Saint-Gobain and AGC (Splintex) having accepted to ‘cover’ them in that respect. 344 It follows that the applicant’s participation in the meeting held in late October or early November 2000 concerning certain models of [confidential], as well as the anti-competitive nature of that meeting, must be regarded as established. – The meeting of 1 November 2000 concerning certain models of [confidential] 345 As regards the meeting held in November 2000 concerning certain models of [confidential], the leniency applicant stated that the notes relating to that meeting, taken by one of its employees, showed, inter alia, a discussion between the big three carglass producers with a view to increasing the price of certain carglass pieces for the [confidential] model. According to recital 280 of the contested decision, it can be seen from those notes that an agreement had been reached between the competitors to apply uniform price increases of 4% for windscreens and side windows and of 3% for rear windows. 346 While those notes indeed seem to show the existence of a collusive contact, the Court nevertheless considers that the applicants’ participation in that meeting is not established. Unlike numerous other notes on which the Commission relies, the notes taken at that meeting contain no express reference to the applicants, and the Commission itself acknowledged in the contested decision that it could not be concluded with certainty that a representative of the applicants participated in that meeting. 347 Thus, it must be concluded that the leniency applicant’s statements regarding the applicants’ participation in the collusive contact on 1 November 2000 are not sufficiently supported by other evidence (see, to that effect, JFE Engineering and Others v Commission, paragraph 82 above, paragraph 219, and Groupe Danone v Commission, paragraph 308 above, paragraph 285). – The meeting that took place ‘some time prior to or around 13-14 December 2000’, concerning certain models of [confidential] 348 The meeting or the contact that took place ‘some time prior to or around 13-14 December 2000’, concerning certain models of [confidential] was, according to recital 295 of the contested decision, a trilateral contact between the applicants, Saint-Gobain and AGC (Splintex) which took the form of either a meeting in a hotel near Brussels Airport or a telephone call. 349 The applicants nevertheless claim that the notes taken by an employee of the leniency applicant produced by the Commission, even read in the light of the leniency applicant’s statements, do not prove that that meeting took place or, a fortiori, that they participated in it. 350 However, that argument cannot be accepted. 351 First of all, the notes taken by an employee of the leniency applicant, dated ‘13-14 December 2000’, contain an express reference to the applicants. The applicants do not contest, in that respect, that the codename ‘Y’ that appears in those notes refers to them. Next, the leniency applicant confirmed that the big three producers of carglass had participated in that meeting or in that contact and that discussions of a collusive nature had taken place on that occasion, concerning the [confidential]. According to those same statements, those producers also exchanged sensitive information at that meeting concerning the costs of production of carglass pieces for the [confidential]. Although the notes taken by the employee of the leniency applicant at that meeting or at that contact are indeed rather brief and limited in detail, their contents appear, having regard to the principles referred to in paragraph 83 above, sufficiently clear when read in the light of the leniency applicant’s statements. 352 As the Commission emphasised, the precautions taken by the leniency applicant in making those statements, for example by using expressions such as ‘it is believed that’ or by indicating that the notes could relate to either a meeting in a hotel at Brussels Airport or telephone contacts, cannot, by itself, alter their probative value. Such precautions may be explained by the leniency applicant’s desire to formulate its statements carefully so as to avoid the risk that any inaccuracies might undermine its chances of obtaining a reduction of the fine. Moreover, the fact that an employee of the leniency applicant could not recall precisely the location of that meeting or contact is not decisive, given the significant number of meetings and contracts that took place in the context of the cartel, the fact that, when the leniency applicant made its statements to the Commission, several years had passed since the meeting or contact in question and, lastly, the level of precision of those statements as regards the nature and the scope of the discussions that took place on that occasion. 353 In view of those various elements, it is established that the applicants participated in the collusive meeting or contact that took place ‘some time prior to or around 13-14 December 2000’, concerning certain models of [confidential]. – The meeting or contact of 30 April 2002 354 As regards the trilateral meeting that allegedly took place in an airport on 30 April 2002, it must be pointed out that, contrary to what is indicated in recital 391 of the contested decision, that meeting, as can be seen from the leniency applicant’s statements, did not take place in Charles de Gaulle Airport in Paris, as the leniency applicant indicated that that meeting probably took place in a hotel at Brussels Airport. It is also clear from the contested decision that another contact took place on that day between Saint-Gobain and AGC (Splintex), during which, in particular, commercially sensitive information which had been communicated by the applicants to those undertakings was exchanged. 355 The applicants deny having participated in those contacts. 356 In that respect, it must first of all be noted that, as the applicants maintain, there is nothing to prove that they participated in the first of those two contacts which concerned the manufacturer [confidential]. First, the notes taken by an employee of the leniency applicant in that respect contain no reference to the applicants. Secondly, it can be seen from the leniency applicant’s statements that that contact was between the leniency applicant and Saint-Gobain only. 357 As regards the second contact, it can be seen from the notes taken by an employee of the leniency applicant and from the leniency applicant’s statements on those notes that the applicants, at the very least, participated in a collusive contact concerning the [confidential]. Thus, the leniency applicant’s statements indicate that a discussion indeed took place between the applicants, Saint-Gobain and AGC (Splintex) concerning the supply of carglass for those models and that that discussion concerned a division in equal parts of the supply of carglass for those models between Saint-Gobain and the applicants. 358 It must therefore be regarded as established that the applicants participated in the collusive contact of 30 April 2002, relating to the supply of carglass for the [confidential]. – The contact that took place shortly before 23 June 2000 concerning the manufacturer [confidential] 359 According to recital 219 of the contested decision, a contact took place between an employee of the leniency applicant and an employee of the applicants on an unspecified date before 23 June 2000, during which the supply of carglass to the manufacturer [confidential] was discussed. Price information was exchanged, on that occasion, between those two competing undertakings, with a view to ‘covering’ each other as regards the [confidential]. The applicants also presented the market shares of the big three carglass producers as regards the manufacturer [confidential] for the period between 1998 and 2003, as well as their target market share for the [confidential]. 360 The applicants maintain that neither the notes taken by an employee of the leniency applicant on that date nor the statements made by the leniency applicant in order to obtain leniency allow the conclusion that the applicants communicated to a competitor the information contained in those notes. 361 However, that argument cannot be accepted. As the Commission rightly points out, it is clear from the leniency applicant’s statements, supported in that respect by the notes taken by one of its employees, that an exchange of commercially sensitive information indeed took place shortly before 23 June 2000 and that the applicants took part in that exchange. First of all, the table set out at the bottom of the page of those notes includes a reference to the applicants alongside the indication of the years covered by that table. There is also another reference to the applicants in that same table, indicating their actual or estimated market shares. That presentation tends to support the explanation given by the leniency applicant, in its statements made to the Commission, according to which that table was drafted on the basis of information provided by the applicants themselves. Moreover, the notes in question refer to the aim expressed by the applicants of obtaining 22 and 44% respectively of the market shares for the [confidential]. It can also be seen from the leniency applicant’s explanations that the purpose of that exchange of information was, first, to organise the allocation of supply contracts relating to one or several models of the manufacturer [confidential] through the use of the ‘covering’ mechanism and, secondly, to achieve a more overall evaluation of the situation of the big three carglass producers in order to make adjustments, if necessary. 362 Accordingly, the Commission was entitled to find that the applicants participated in the contact that took place shortly before 23 June 2000 concerning the manufacturer [confidential]. – The contacts that took place on 23 June and 17 July 2000 concerning the manufacturer [confidential] 363 According to recital 227 of the contested decision, employees of the applicants and of AGC (Splintex) were in contact on 23 June and 17 July 2000 concerning the manufacturer [confidential], particularly as regards the [confidential]. The applicants nevertheless maintain, in essence, that it cannot be inferred from the notes taken by an employee of the leniency applicant, produced by the Commission, and the leniency applicant’s statements in that regard that the applicants took part in that contact or, more generally, that they exchanged commercially sensitive information concerning that model. 364 However, the applicants’ argument in that respect cannot be accepted, in view of both the notes taken by an employee of the leniency applicant and the explanations provided in respect of those notes under the leniency programme. Thus, the leniency applicant gave a clear and precise explanation of the notes taken by one of its employees concerning the manufacturer [confidential] during the contacts that took place on 23 June and 17 July 2000. According to those statements, the table set out at the top of page 51 of those notes indicates the per-unit price envisaged by the leniency applicant and by Saint-Gobain for the various carglass pieces intended for the [confidential], as well as certain costs related to the supply of those pieces. According to the same statements, it was agreed that Saint-Gobain would not supply carglass pieces for that model and would therefore ‘cover’ the two other members of the club. That explanation is consistent with the above mentioned table, from which it can be seen that Saint-Gobain’s per-unit prices were higher than those of the leniency applicant for each of the carglass pieces for the [confidential]. Next, according to the leniency applicant, it was agreed that it would be ‘covered’ by the applicants as regards that model, with the exception of two carglass pieces, namely the quarterlights and the rear windows. As can be seen from the leniency applicant’s explanations, as well as from the observation at the bottom of the table in the notes taken by an employee of the leniency applicant, the undertakings that participated in the contact nevertheless envisaged the possibility that the applicants might not obtain the contract for the supply of quarterlights, in which case the applicants would receive compensation. 365 It follows that the evidence relied on by the Commission is sufficient to support its conclusion that the applicants participated in a collusive discussion concerning the [confidential] in contacts with AGC (Splintex) in June and July 2000. – The contact that took place in May 2001 concerning the [confidential] 366 According to recital 318 of the contested decision, in May 2001 representatives of the applicants and of the leniency applicant exchanged price information regarding the new [confidential]. The Commission relies, in particular, on a table provided by the leniency applicant containing a detailed overview of the prices quoted by the applicants for the supply and assembly of carglass for that model and comparing those prices with the target prices of the customer [confidential], owner of [confidential] at that time. 367 However, the applicants deny communicating such commercially sensitive information. In their view, it is more probable that the information concerning the prices it quoted to [confidential] were communicated to the leniency applicant by the car manufacturer itself. 368 In that regard, the Court notes, first of all, that it can be seen from the leniency applicant’s statements concerning the table in question that the latter was not in a position to confirm whether the information relating to the prices quoted by the applicants came from the applicants themselves. Thus, the leniency applicant indicated that the car manufacturer itself would sometimes provide detailed information on the quotes submitted by one of the carglass manufacturers. 369 However, it can be seen from another passage of those statements that, despite the uncertainty as to whether the applicants disclosed commercially sensitive information concerning the [confidential] in May 2001, the applicants had indeed communicated such information to AGC (Splintex) in October 2000. 370 Accordingly, it must be regarded as established that the applicants indeed communicated commercially sensitive information concerning the [confidential] to a competitor during the infringement period. – The contact that took place on 10 September 2001 concerning the [confidential] 371 According to recital 343 of the contested decision, the applicants and the leniency applicant exchanged price information concerning the [confidential], during a telephone contact on 10 September 2001. The applicants nevertheless claim that it has not been established that they participated in that contact, given the obscure nature of the notes taken by an employee of the leniency applicant on which the Commission relied in that regard. 372 As a preliminary point, it is necessary to reject the applicants’ argument that the timing of the events relating to the award of the supply contract for carglass for the [confidential] show the contradictory nature of the statements made on that subject by the leniency applicant. Without it even being necessary to verify the accuracy of the Commission’s assertion that the supply of carglass for a model is often subject to renegotiations and reallocations during the lifecycle of that model, it is sufficient to note that the applicants have not even attempted to substantiate their assertion that, in September 2001, the supply contract relating to the [confidential] had already been awarded. 373 As regards, next, the issue whether the applicants participated in the contact in question, it must first of all be pointed out that, despite its conciseness, the extract from the notes taken by an employee of the leniency applicant produced by the Commission contains an express reference to the applicants. In addition, that extract contains specific information on the prices of various carglass pieces intended for the [confidential]. As the Commission points out, the leniency applicant provided a precise and consistent explanation as regards those notes, by indicating that the applicants had communicated various pieces of sensitive information to them on 10 and 12 September 2001. 374 It follows that, in the light of the evidence adduced by the Commission, it must be regarded as established that the applicants participated in the contact that took place in September 2001 concerning the [confidential], which involved the exchange of commercially sensitive information. – The contact that took place on 6 November 2001 concerning the manufacturer [confidential] 375 According to recital 354 of the contested decision, a contact took place on 6 November 2001 between the leniency applicant and the applicants. Sensitive information concerning the prices of carglass for the new [confidential] was exchanged at that meeting. The applicants deny having communicated such sensitive information to the leniency applicant. In their submission, that information was communicated to the leniency applicant by [confidential], a car manufacturer that sought to pressure the leniency applicant into making a better offer than that of the applicants. 376 That argument cannot be accepted. 377 First of all, it must be observed that the notes taken by an employee of the leniency applicant on that occasion contain several references to the applicants, as the applicants themselves acknowledge. Those references are each accompanied, as regards the [confidential], by specific price information relating to various carglass pieces intended for that model. Moreover, the leniency applicant indicated, in its statements to the Commission, that the information in question had been communicated to it by the applicants. 378 That evidence tends to support the Commission’s view that the applicants participated in a contact with the leniency applicant on 6 December 2001, during which sensitive price information relating to the new [confidential] was exchanged. – Conclusion on the meetings and contacts examined in the context of the present plea in law 379 Having regard to the reasoning set out in paragraphs 332 to 378 above, it must be held that it is established that the applicants participated in most of the meetings and contacts in which it was found, in the contested decision, to have participated. The assessment of the individual gravity of the applicants’ conduct 380 The merits of the various complaints made by the applicants in support of their view that the Commission erred in its assessment of the gravity of their conduct by comparison to that of Saint-Gobain and of AGC (Splintex) must be assessed in the light of that conclusion. 381 As regards, first of all, the applicants’ complaint based on their allegedly passive role in the cartel, it must be noted that a passive role in the infringement implies that the undertaking will adopt a low profile, that is to say not actively participate in the creation of any anti-competitive agreements (see, to that effect, Case T‑220/00 Cheil Jedang v Commission [2003] ECR II‑2473, paragraph 167). One circumstance that may indicate the adoption by an undertaking of a passive role within a cartel is where the undertaking’s participation in cartel meetings is significantly more sporadic than that of the ordinary members of the cartel (see, to that effect, Case T‑311/94 BPB de Eendracht v Commission [1998] ECR II‑1129, paragraph 343, and Cheil Jedang v Commission, cited above, paragraphs 168 and 181). 382 Nevertheless, only complete or virtually complete passivity may be taken into account as a mitigating factor, and that passivity must be proved by the party alleging it (see judgment of 6 March 2012 in Case T‑64/06 FLS Plast v Commission, not published in the ECR, under appeal, paragraph 127, and judgment of 6 March 2012 in Case T‑65/06 FLSmidth v Commission, not published in the ECR, paragraph 59 and the case-law cited). 383 In the present case, the Court notes that, in view of the reasoning set out in paragraphs 332 to 378 above and of the number of meetings and collusive contacts in which the applicants have not denied participating, the applicants did not play a merely passive role in the cartel, justifying a reduction of the basic amount of the fine as a mitigating factor. 384 In the first place, it is established that the applicants participated regularly in the anti-competitive meetings and contacts between the members of the club during the period between 10 March 1998 and 3 September 2002, with the result that their participation in the cartel was in no way sporadic (see, to that effect, judgment of 27 June 2012 in Case T‑445/07 Berning & Söhne, not published in the ECR, paragraph 219). 385 In the second place, the applicants do not deny either having been represented, in those meetings and contacts, by senior managers or large accounts managers, or having themselves organised several club meetings. 386 In the third place, it must be emphasised that, in Cheil Jedang v Commission, paragraph 381 above, cited by the applicants, the Court did not come to the conclusion that the undertaking in question had played a passive role during the infringement period solely because that undertaking had participated in only some of the meetings of the cartel. The Court also based its conclusion in that respect on the fact that the undertaking in question had not participated in the two most important meetings of the cartel, namely those in which a refined and definitive allocation of sales quotas had been agreed by the other producers and, moreover, on the fact that the undertaking in question had subsequently accepted small sales quotas (Cheil Jedang v Commission, paragraph 381 above, paragraphs 178 to 180; see also, to that effect, judgment of 12 September 2007 in Case T‑36/05 Coats Holdings and Coats v Commission, not published in the ECR, paragraph 208). 387 The facts of the present case differ in essential respects from those that gave rise to the judgment in Cheil Jedang v Commission, paragraph 381 above (paragraph 182). Thus, the applicants do not deny participating in the two meetings of the club held on 6 December 2001 and 10 July 2002, examined in recitals 113 and 114 of the contested decision. As noted in paragraphs 88 to 93 above, the applicants, Saint-Gobain and AGC (Splintex), in the course of those meetings, carried out an overall assessment of the operation of the cartel and the adaptations deemed necessary in order to pursue effectively their collusion on market shares. It is therefore established that the applicants participated in two of the most important meetings of the cartel, in which the overall objectives of the cartel and the means of implementing it were discussed and specified. 388 It thus follows from the reasoning set out in paragraphs 384 to 387 above that the applicants’ assertion that they played a merely passive role in the cartel must be rejected. 389 As regards the applicants’ argument that they did not implement the vast majority of decisions taken at the cartel meetings, it must be pointed out that, according to settled case-law, for the purposes of the application of Article 81(1) EC, there is no need to take account of the actual effects of an agreement when it has as its object the prevention, restriction or distortion of competition within the common market. Accordingly, the demonstration of actual anti-competitive effects is not required where the anti-competitive object of the alleged conduct has been established (see, to that effect, the case-law cited in paragraph 288 above). 390 Moreover, it can be seen from the third indent of point 29 of the 2006 Guidelines that the basic amount of the fine may be reduced by the Commission, on account of mitigating circumstances, where the undertaking concerned provides evidence that its involvement in the infringement is substantially limited and thus demonstrates that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market. 391 However, the Commission is not required to recognise the existence of a mitigating circumstance consisting of non-implementation of a cartel unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the cartel, to the point of disrupting the very functioning of it, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the cartel in question. In that context, the fact that an undertaking which has been proved to have participated in collusion on market-sharing with its competitors did not behave on the market in the manner agreed with its competitors is not necessarily a matter which must be taken into account as a mitigating circumstance when determining the amount of the fine to be imposed (see, to that effect, Case T‑44/00 Mannesmannröhren-Werke v Commission [2004] ECR II‑2223, paragraph 277 and the case-law cited, and Denki Kagaku Kogyo and Denka Chemicals v Commission, paragraph 204 above, paragraph 248). 392 In the present case, it must be noted that, in view of the findings in paragraphs 379, 384 and 387 above, the applicants have in no way demonstrated that their participation in the infringement was substantially limited and that, accordingly, they actually avoided applying the collusions in which they participated, by adopting competitive conduct in the market. It follows that, even if the applicants did not comply, in practice, with some decisions taken in the context of the cartel, their argument that they should have had the benefit of the mitigating circumstance referred to in the third indent of point 29 of the 2006 Guidelines cannot be accepted. 393 As regards the complaint alleging infringement of the principle of equal treatment, it should be noted, as a preliminary point, that that principle requires that comparable situations not be treated differently and different situations not be treated in the same way unless such treatment is objectively justified (see Case C‑106/01 Novartis Pharmaceuticals [2004] ECR I‑4403, paragraph 69 and the case-law cited). 394 However, that complaint cannot succeed. 395 As regards, in the first place, the allegedly more limited role of the applicants in the cartel, by comparison with that of Saint-Gobain and of AGC (Splintex), it is clear from the reasoning set out in paragraphs 381 to 392 above that the applicants cannot rely in the present case on any sort of passive role on their part, or an absence of implementation of agreements and concerted practices, capable of establishing that the gravity of their conduct in the cartel was less than that of other participating undertakings and that they were therefore entitled to a reduction of the fine on account of mitigating circumstances. In addition, in accordance with point 24 of the 2006 Guidelines, the variations in the respective duration of participation of the various addressees of the contested decision were duly taken into account by the Commission when calculating the amount of the fines imposed on each of them, through the application of a multiplier proportionate to the number of years of participation of each of them in the infringement. 396 As regards, in the second place, the proportion of the applicants’ overall turnover represented by the fine imposed on them, which is allegedly much larger than that represented by the fines imposed on Saint-Gobain and on AGC (Splintex), it must be pointed out that, according to settled case-law, the gravity of infringements is assessed in the light of numerous factors, in respect of which the Commission has a margin of discretion, no binding or exhaustive list of criteria to be taken into account in that regard having been drawn up (see Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 129 and the case-law cited). 397 Accordingly, the Commission is not required, when determining fines, to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines reflect any distinction between the undertakings concerned in terms of their overall turnover (Dansk Rørindustri and Others v Commission, paragraph 119 above, paragraph 312; see Mannesmannröhren-Werke v Commission, paragraph 391 above, paragraph 247 and the case-law cited; see, to that effect, Dalmine v Commission, paragraph 396 above, paragraphs 141 to 144). 398 Thus, the fact that the method of calculation set out in the 2006 Guidelines is not based on the overall turnover of the undertakings concerned and therefore allows disparities to appear between the undertakings as regards the relationship between their overall turnover 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 (see, by analogy, Wieland-Werke v Commission [2009] ECR II‑1087, paragraphs 86 and 87). As the Commission rightly points out, it is therefore not contrary to those principles that, through the application of the method of calculation of the basic amount of fines set out in point 13 of the 2006 Guidelines, an undertaking whose activities are more focused than others on the sale of goods or services connected directly or indirectly to the infringement may receive a fine which represents a proportion of its overall turnover greater than that represented by the fines imposed respectively on each of the other undertakings. 399 It is therefore necessary to reject the applicants’ complaint that the Commission, when calculating the fines imposed in the contested decision, did not adjust those fines in order to take account of the difference between the applicants’ overall turnover and the higher overall turnover of Saint-Gobain and of AGC (Splintex), or of the fact that the sale of carglass represented a significantly higher proportion of the applicants’ turnover by comparison to that of Saint-Gobain and of AGC (Splintex). 400 Lastly, it is necessary to reject the applicants’ argument that the consulting firm’s report produced in annex to their letter sent to the Court on 18 January 2013 proves that the fine imposed on them has a disproportionate effect by comparison to the effects of the fines imposed on the other addressees of the contested decision. 401 As noted in paragraphs 274 and 275 above, that report concerns developments after the adoption of the contested decision and such elements may in no event have any effect on the legality of that decision. 402 It follows that the fifth plea in law is unfounded and must therefore be dismissed. E – The sixth plea in law, alleging failure to observe the ceiling of the fine as laid down in Article 23(2) of Regulation No 1/2003 a) Arguments of the parties 403 By their sixth plea in law, the applicants maintain that the fine imposed on them, in the amount of EUR 357 million, exceeds the ceiling laid down in Article 23(2) of Regulation No 1/2003. That is so because the Commission applied an incorrect exchange rate when converting the applicants’ total turnover for the business year preceding the adoption of the contested decision into euros. 404 The applicants claim, in that regard, that they had a total turnover of 2 614 000 000 pounds sterling (GBP) in the business year preceding the adoption of the contested decision, which ended on 31 March 2008, and that the fine could not therefore exceed GBP 261 400 000. While the Commission is indeed entitled to calculate that ceiling in euros, when doing so it should still apply the official exchange rate applicable at the date on which the contested decision was adopted, if that date corresponds to the time when the fine imposed becomes payable. Only that rate permits full compliance with the objective of Article 23(2) of Regulation No 1/2003 as regards undertakings whose accounts are kept in a currency other than the euro. It follows from the case-law that it is permissible to apply, in that regard, a rate separate from that applied when calculating the fine as such, by reference to the exchange rate in the last business year preceding the end of the infringement. The purpose of using the turnover achieved during that business year when calculating the basic amount of the fine is to ensure that the size and economic power of the undertaking, and also its position by comparison with the other undertakings involved in the infringement, are correctly evaluated at the time when the infringement took place. Conversely, the aim pursued by the ceiling of 10% of turnover is different, as it is designed to provide an overriding protection for undertakings against excessively large economic repercussions linked to the fines imposed on them. In the applicants’ submission, that objective could not be properly achieved if the ceiling itself were subject to exchange rate fluctuations. 405 The approach consisting in calculating the ceiling of the fine by reference to the exchange rate applicable at the time of the adoption of the contested decision is the only one capable of observing the principle of equal treatment of undertakings whose accounts are kept in euros and those whose accounts are kept in another currency, in terms of assessing the actual financial impact of a fine at the time when it is imposed. It is also the only method which complies with the objective pursued by the ceiling referred to in the second subparagraph of Article 23(2) of Regulation No 1/2003, since no other method protects the undertakings whose accounts are not kept in euros against the impact of any exchange rate fluctuations up to the time when the contested decision is adopted. 406 In the present case, according to the applicants, whose accounts are kept in pounds sterling, the application of the official exchange rate of the European Central Bank (ECB) at the time of the adoption of the contested decision should have led the Commission to find that the ceiling of the fine was EUR 317 547 860, in application of the exchange rate applicable on 12 November 2008 (EUR 1 = GBP 0.8231). The applicants therefore request the Court to annul the fine imposed on them and, in the exercise of its unlimited jurisdiction, to reduce that fine by the amount of EUR 39 452 140. 407 The Commission disputes those criticisms. It submits, first of all, that it follows from the case-law that the Commission may use the exchange rate in force during the year used as the reference year, both when calculating the basic amount of the fine and when calculating the ceiling referred to in Article 23(2) of Regulation No 1/2003. Any disadvantages which the application of that conversion method may entail for an undertaking in certain circumstances is an element of chance which undertakings that make part of their sales on export markets have to deal with regularly and which, consequently, is not such as to render the amount of a lawfully fixed fine inappropriate. 408 The Commission adds that the application of the average exchange rate during the preceding business year complies with the objective of ensuring legal certainty. That method enables the undertakings concerned to know in advance the ceiling of any fine that might be imposed on them during the following business year. By contrast, if the exchange rate applied were fixed by reference to the date of the decision, it would vary according to the date on which that decision is adopted. Such a method might encourage opportunistic or delaying tactics on the part of the undertakings concerned. In any event, the applicants cannot be protected against the uncertainty of currency fluctuations when total turnover for the preceding business year is calculated. The fact that the applicants must, where necessary, pay a fine that is higher than they would have had to pay if a different exchange rate had been applied is merely the consequence of fluctuations in the real values of the various national currencies. 409 Lastly, in the Commission’s submission, the method which it applied in the present case does not lead to a breach of the principle of equal treatment of undertakings depending on whether their accounts are kept in euros or in another currency. The Commission contends that any calculation of the ceiling of the fine by reference to the exchange rate applicable at the date on which the decision was adopted would not promote the equal treatment of the undertakings concerned, since the risk associated with fluctuations is inevitable irrespective of the calculation method applied. b) Findings of the Court 410 The Commission concluded in the present case that the fine imposed on the applicants did not exceed the ceiling of 10% of their total turnover in the business year preceding the adoption of the contested decision, namely the business year which ended on 31 March 2008. It came to that conclusion after converting into euros the applicants’ total turnover in that business year, denominated in pounds sterling, using the average exchange rate of the ECB applicable to those two currencies during the period between 1 April 2007 and 31 March 2008. 411 The parties to the present proceedings do not contest that the exchange rate applied by the Commission was indeed the average exchange rate between the currencies in question during that period, calculated on the basis of the exchange rates published by the ECB during that period. 412 The applicants submit, however, that the application of that method of calculation, rather than a conversion by reference to the official exchange rate applicable at the date on which the contested decision was adopted, namely 12 November 2008, was unfavourable to them given the fluctuation of the exchange rate between the pound sterling and the euro that occurred between the preceding business year and the date on which the contested decision was adopted. They also allege that the application of the average exchange rate in the course of the business year preceding the adoption of the contested decision gave rise to unequal treatment between the applicants, whose accounts were kept in pounds sterling, and the other addressees of that decision, whose accounts were kept in euros, since those other undertakings enjoyed a greater degree of certainty as regards the actual financial impact of the fines imposed on them. 413 However, that argument must be rejected. 414 The Court notes, in that respect, that the upper limit laid down in the second subparagraph of Article 23(2) of Regulation No 1/2003 has a distinct and autonomous objective by comparison with the criteria of the gravity and the duration of the infringement, namely to prevent fines being imposed which it is foreseeable that the undertakings, owing to their size, as determined, albeit approximately and imperfectly, by their total turnover, will not be able to pay (Dansk Rørindustri and Others v Commission, paragraph 119 above, paragraphs 281 and 282; Knauf Gips v Commission, paragraph 279 above, paragraph 452; and Romana Tabacchi v Commission, paragraph 279 above, paragraph 257). 415 Thus, in accordance with the intention expressed by the EU legislature in Regulation No 1/2003, the ceiling laid down in the second subparagraph of Article 23(2) of that regulation must be determined, in principle, by reference to the economic reality as it appeared in the course of the business year preceding the adoption of the decision penalising an infringement of Article 81 EC. The maximum amount of the fine, calculated in that manner, limits the possible harmful consequences of monetary fluctuations that may have occurred since the infringing conduct came to an end (see, to that effect, Sarrió v Commission, paragraph 247 above, paragraph 89, and Limburgse Vinyl Maatschappij and Others v Commission, paragraph 119 above, paragraph 606 and the case-law cited). 416 The method of calculating that upper limit by applying the average official exchange rate applicable during the business year preceding the adoption of the decision, in order to convert into euros the total turnover of the undertaking concerned in that year, is consistent with that objective (see, to that effect, HFB and Others v Commission, paragraph 150 above, paragraphs 542 and 543). 417 That conclusion cannot be called into question by the fact that currency fluctuations may occur between the business year preceding the adoption of a decision penalising an infringement of Article 81 EC and the date on which that decision is adopted, giving rise to the payment, as the case may be, of a fine greater than that which would have been imposed if the fine had been calculated by reference to the exchange rate applicable at the time that decision was adopted. 418 In the first place, currency fluctuations are an element of chance which may produce advantages and disadvantages which undertakings realising part of their sales on export markets have to deal with regularly in the course of their business activities and the very existence of which is not such as to render inappropriate the amount of a fine lawfully fixed on the basis of the gravity and the duration of the infringement (see Sarrió v Commission, paragraph 247 above, paragraph 89, and Limburgse Vinyl Maatschappij and Others v Commission, paragraph 119 above, paragraph 604 and the case-law cited). 419 Since, moreover, Regulation No 1/2003 does not prohibit the use of the euro in order to set fines (see, by analogy, Sarrió v Commission, paragraph 247 above, paragraph 88), it is necessary to reject the applicants’ argument that, because of the method of converting their turnover chosen by the Commission for the purpose of calculating the maximum amount of the fine, they suffered an unjustified difference in treatment by comparison with the addressees of the contested decision whose accounts are kept in euros. 420 In the second place, contrary to what is suggested by the applicants, the choice made by the Commission to calculate the maximum amount of the fine by reference to the average of the exchange rates applicable during the business year preceding the adoption of the contested decision allowed the applicants a greater degree of legal certainty than if their total turnover in that business year had been converted into euros by reference to the exchange rate applicable at the date on which that decision was adopted. First, the average official exchange rate during that business year constituted, at the end of that year, an objective factor which the applicants could use in order to assess the maximum amount of the fine that could be imposed on them in the course of the next business year. By contrast, the exchange rate applicable at the time the contested decision was adopted was, by definition, unknown until the day on which that decision was adopted by the Commission, on a date chosen by the Commission alone. Furthermore, the application of the average exchange rate between the euro and the pound sterling during a full year, for the purpose of calculating the maximum amount of the fine, was liable to reduce, at least partially, the uncertainty linked to the constant fluctuations between those currencies. 421 The Commission was therefore entitled to calculate the ceiling of the fine resulting from the application of the second subparagraph of Article 23(2) of Regulation No 1/2003 by reference to the applicants’ total turnover in the preceding business year, converted into euros by the application of the average exchange rate during that business year, and to conclude, therefore, that the fine of 357 million euros imposed on the applicants did not exceed that ceiling. 422 It follows that the sixth plea in law is unfounded and must be rejected. 423 Since none of the pleas in law raised by the applicants are well founded, the claims for annulment of the contested decision must be rejected in their entirety. IV – The Court’s exercise of its unlimited jurisdiction a) Arguments of the parties 424 The applicants request the Court to exercise its unlimited jurisdiction in the present case and to reduce substantially the amount of the fine imposed on them. 425 The applicants submit that the fine imposed on them is disproportionate, in the light of all the circumstances of the case. Thus, the applicants deny that the contacts in which they were found to have engaged constitute the worst form of collusive behaviour and maintain that the methodology applied by the Commission in calculating fines gives rise to penalties which too often exceed the ceiling of 10% of turnover. The applicants further maintain that a reduction of the fine by the Court is all the more justified in the present case because, first, a difficult economic situation prevailed when the Commission adopted the contested decision, a situation which has since continued to deteriorate, and, secondly, the fines imposed in EU law are among the highest in the world. In addition, failure to reduce the fine imposed on the applicants in the contested decision would have the paradoxical consequence of reducing the applicants’ competitive capacity on the carglass market within the EEA, a result that would be contrary to that sought by Article 81(1) EC and by Article 53 of the EEA Agreement. The applicants further submit that the consulting firm’s report which was sent to the Court in an annex to their letter of 18 January 2013 shows the disproportionate nature of the fine, in view, in particular, of the deterioration of their financial situation since the contested decision was adopted. 426 At the hearing, the applicants again submitted, in support of their request for a reduction of the fine, that they had voluntarily withdrawn from the cartel several months before that cartel came to an end, that the fine imposed on them in the case that gave rise to the Flat Glass decision had already sufficiently deterred them from committing any further infringements of Article 81 EC and, lastly, that the contested fine represented a significant proportion of their annual turnover, because of the fact that their activities were less diversified than those of Saint-Gobain and of AGC (Splintex). 427 The Commission contends that there is no objective reason for the Court to exercise its unlimited jurisdiction in the present case. It is of no relevance in that respect that the application of a new method of calculation in the 2006 Guidelines gives rise to fines which reach the ceiling laid down in Article 23(2) of Regulation No 1/2003 more frequently than previously. According to the Commission, the financial difficulties experienced by the applicants at the time the contested decision was adopted, even were they established, would be irrelevant to the setting of the fine, since to take them into account would be tantamount to giving an unjustified competitive advantage to the undertakings least well adapted to the market conditions. 428 The Commission is also opposed to the Court taking into account, for the purposes of the exercise of its unlimited jurisdiction, the consulting firm’s report produced by the applicants in an annex to their letter of 18 January 2013. While acknowledging that the EU judicature may be led to take account, in the exercise of such jurisdiction, of additional information that was not mentioned in the contested decision, the Commission submits that that possibility must in principle be limited to taking into account information predating the contested decision. In any event, the Commission states that the abovementioned report lacks relevance in the present case, since the Commission was not bound to take into account any financial difficulties faced by the applicants when it calculated the fine. In particular, the Commission emphasised at the hearing that, unlike the applicant in the case that gave rise to Romana Tabacchi v Commission, paragraph 279 above, the applicants have not demonstrated in the present case that the payment of the contested fine would be liable to bring about their winding up and, consequently, their disappearance from the market. 429 Lastly, the Commission claims that it is natural that some of the fines which it imposes under EU competition law should be among the highest in the world, since it penalises only infringements of Community scale and since, in addition, the supervision which it carries out covers the largest market that any competition authority has to protect. b) Findings of the Court 430 As a preliminary point, it must be determined whether the Court may be called on to take into account, for the purposes of the exercise of its unlimited jurisdiction, information such as that contained in the consulting firm’s report produced by the applicants in an annex to their letter of 18 January 2013, relating to developments subsequent to the date on which the contested decision was adopted, which the Commission disputes. 431 In that respect, it must be recalled that, more than a simple review of legality, which merely permits dismissal of the action for annulment or annulment of the contested measure, the unlimited jurisdiction conferred on the Court by Article 31 of Regulation No 1/2003, in accordance with Article 229 EC, authorises the Court to vary the contested measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend, for example, the amount of the fine (see Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 86 and the case-law cited). 432 Since the Court has power to assess the appropriateness of the amounts of fines in the context of its unlimited jurisdiction, that assessment may justify the production and taking into account of additional information which is not as such required, by virtue of the duty to state reasons under Article 296 TFEU, to be set out in the decision (Case C‑248/98 P KNP BT v Commission [2000] ECR I‑9641, paragraph 40; Cheil Jedang v Commission, paragraph 381 above, paragraph 100; and Tokai Carbon and Others v Commission, paragraph 297 above, paragraph 164). 433 It follows that the consulting firm’s report referred to in paragraph 430 above may be taken into account by the Court in order to assess whether it should exercise its unlimited jurisdiction by reducing the fine imposed on the applicants, in accordance with the form of order which they seek. 434 However, the Court considers that neither that report nor, more generally, the circumstances of the present case justify a reduction of the fine imposed on the applicants, as last set out in the amending decision of 28 February 2013. 435 As regards, first of all, the applicants’ argument that their conduct was of a lesser gravity than that of the other undertakings that took part in the cartel at issue, it must be emphasised that the collusive practices at the heart of the present dispute, as the Commission rightly pointed out, constitute a serious infringement of EU competition law, on a very large scale over several years. Although the Commission did not consider that the cartel in question could be regarded as a structured cartel, it must be noted that the cartel in question — the objective of which was to stabilise the market shares of the participating undertakings — involved a series of regular meetings and contacts during which those undertakings organised the allocation of numerous supply contracts, in particular by discussing prices. In addition, the operation of the cartel was made possible by the development of a common method for the calculation of the market shares of the participating undertakings, and by compensatory measures intended to adjust the market shares when one or more supply contracts were not awarded in accordance with the allocation decided on within the cartel. 436 Moreover, in view of the reasoning set out in paragraphs 380 to 402 above, the applicants have not been able to show that their conduct complained of in the contested decision was of a significantly lesser gravity than that of the other club members. The Court also notes that the applicants did not show a particularly high level of cooperation with the Commission during the investigation. 437 Furthermore, while it is true that, unlike Saint-Gobain, the applicants were not considered repeat offenders in the context of the infringement of EU competition law at the heart of the present dispute, and that they did not participate in the infringement for as long as Saint-Gobain, those circumstances are reflected by a significant difference between the amount of the fines imposed on those two undertakings. 438 As regards the applicants’ argument that the fine imposed on them has a greater impact on their financial situation than those imposed on AGC (Splintex) and on Saint-Gobain, because the applicants’ activities are less diversified than those of AGC (Splintex) and of Saint-Gobain, it is not — even were it established — capable of justifying a reduction of the fine. In accordance with Article 23(3) of Regulation No 1/2003, the fine must be set solely by reference to the criteria of the gravity and of the duration of an infringement of Article 81 EC. Accordingly, the fact that disparities, even significant ones, may exist between the proportion of turnover represented by the various fines imposed on undertakings that participated in the same cartel, as a result, inter alia, of the share of each undertaking’s turnover concerned by the infringement, is irrelevant for the purpose of examining the proportionate nature of those fines and whether the principle of equal treatment had been observed (see, to that effect, the case-law cited in paragraph 397 above). 439 In addition, the dissuasive nature of the fine imposed on the applicants in the case that gave rise to the Flat Glass decision cannot justify a reduction of the fine imposed on them in the present case. As can be seen from the reasoning set out in paragraphs 299 to 305 above, such a reduction would have the effect of altering the purpose of general deterrence of serious infringements of Article 81 EC pursued by the contested fine and, moreover, of rewarding the applicants for infringing the EU competition rules. 440 Lastly, the applicants’ argument concerning the deterioration of their financial situation since the adoption of the contested decision must also be rejected. 441 In that regard, the Court notes that the effectiveness of the Commission’s competition policy could be compromised if the financial consequences of the fines imposed for infringements of the EU competition rules could not have a certain impact on the undertakings concerned, in particular when those undertakings invoke either their own financial difficulties or a crisis affecting a sector in order to obtain an alleviation of the penalty imposed on them for such an infringement. That is particularly so given that, as noted in paragraph 308 above, it is often the case that cartels come into being when a sector is experiencing difficulties, and that the ability of an undertaking to pay a fine imposed on it for an infringement of Article 81 EC is already taken into account by the limitation of the amount of the fine at 10% of total turnover in the preceding business year, in accordance with Article 23(2) of Regulation No 1/2003. 442 It follows that the financial difficulties faced by an undertaking are capable of justifying, as such, a reduction of the fine imposed on that undertaking only in exceptional circumstances, where justified by an overriding interest. That may be the case, inter alia, when it is established that the payment of the fine set by the Commission would be liable to bring about the winding up of the company required to pay it, with the result that the amount of that fine does not appear proportionate in view of the serious and irreversible repercussions that such a winding up might entail (see, to that effect, Romana Tabacchi v Commission, paragraph 279 above, paragraphs 283 and 284). 443 In the present case, it is true that the consulting firm’s report produced by the applicants seems to establish that the fine at issue is liable to have a non-negligible impact on their financial situation. It must however be noted that the applicants have not demonstrated the existence of exceptional circumstances that would justify reducing that fine in order to take into account the financial difficulties which the payment of that fine might entail for the applicants. 444 Since the fine thus appears, in the light of the circumstances of the case, both proportionate and adequate, the claims that the Court should exercise its unlimited jurisdiction by reducing that fine must be rejected. 445 It follows from the interim conclusions set out in paragraphs 423 and 444 above that the action must be dismissed in its entirety. Costs 446 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. Pursuant to the first subparagraph of Article 87(3) of the same rules, where the circumstances are exceptional, the Court may, inter alia, order that the costs be shared. 447 In the present case, the applicants have been unsuccessful in all of their heads of claim and the Commission has applied for costs. 448 However, it is necessary to take account of the fact that it was only in the course of the proceedings, several years after the adoption of the contested decision and after the closure of the written procedure, that the Commission corrected two errors made in calculating the fine imposed on the applicants, by adopting the amending decision of 28 February 2013. First, the Court notes that, although the application did not refer specifically to those errors, it nevertheless contained a complaint alleging a failure to state sufficient reasons for the contested decision as regards the sales figures taken into account in order to calculate the amount of the fine and the resulting impossibility of verifying the accuracy of those figures. Secondly, it was only after the Commission produced, in its rejoinder, a detailed overview of the calculation of the fine imposed on the applicants that they were in a position to identify the two errors in question and to request the Commission to correct them. 449 The Court will therefore make an equitable assessment of the circumstances of the present case in holding that the applicants are to bear 90% of their own costs and to pay all of the costs incurred by the Commission and that the Commission is to bear 10% of the costs incurred by the applicants. On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1. Dismisses the action; 2. Orders Pilkington Group Ltd, Pilkington Automotive Ltd, Pilkington Automotive Deutschland GmbH, Pilkington Holding GmbH and Pilkington Italia SpA to bear 90% of their own costs and to pay all of the costs incurred by the Commission and orders the Commission to bear 10% of the costs incurred by the applicants. Forwood Dehousse Schwarcz Delivered in open court in Luxembourg on 17 December 2014. [Signatures] Table of contents Background to the dispute The contested decision Procedure and forms of order sought Law I – The subject-matter of the action II – The pleas in law relating to the nature of the infringement and the duration of the applicants’ participation in it A – The first plea in law, alleging an error in the legal characterisation of the facts and an error in the assessment of the gravity of the infringement a) Arguments of the parties b) Findings of the Court B – The second plea in law, alleging an incorrect assessment of the duration of the applicants’ participation in the cartel a) Arguments of the parties b) Findings of the Court III – The pleas in law concerning the calculation of the fine imposed on the applicants A – The method employed by the Commission in order to assess the relative gravity of the applicants’ participation in the cartel at issue B – The third plea in law, alleging the taking into account of inappropriate sales figures in the calculation of the fine, a procedural error and failure to state reasons 1. The first part, alleging the taking into account of inappropriate sales figures in the calculation of the fine a) Arguments of the parties b) Findings of the Court 2. The second part, alleging breach of the applicants’ procedural rights under Article 27 of Regulation No 1/2003 a) Arguments of the parties b) Findings of the Court 3. The third part, alleging a failure to state reasons a) Arguments of the parties b) Findings of the Court C – The fourth plea in law, alleging infringement of the principle of proportionality and the principle that penalties must be specific to the offender, and disregard for previous administrative practice a) Arguments of the parties b) Findings of the Court D – The fifth plea in law, alleging an error in the calculation of the fine owing to the lesser gravity of the applicants’ conduct by comparison with the other undertakings which participated in the cartel and breach of the principle of equal treatment a) Arguments of the parties b) Findings of the Court The admissibility of the line of argument put forward by the applicants in certain annexes to their application The applicants’ participation in the meetings and contacts of the cartel – The meeting held in Paris in mid-2000 concerning the supply of carglass for the [confidential] – The meeting held on 5 July 2000 concerning the supply of carglass for certain models of [confidential] and of [confidential] – The meeting held in late October or early November 2000 concerning certain models of [confidential] – The meeting of 1 November 2000 concerning certain models of [confidential] – The meeting that took place ‘some time prior to or around 13-14 December 2000’, concerning certain models of [confidential] – The meeting or contact of 30 April 2002 – The contact that took place shortly before 23 June 2000 concerning the manufacturer [confidential] – The contacts that took place on 23 June and 17 July 2000 concerning the manufacturer [confidential] – The contact that took place in May 2001 concerning the [confidential] – The contact that took place on 10 September 2001 concerning the [confidential] – The contact that took place on 6 November 2001 concerning the manufacturer [confidential] – Conclusion on the meetings and contacts examined in the context of the present plea in law The assessment of the individual gravity of the applicants’ conduct E – The sixth plea in law, alleging failure to observe the ceiling of the fine as laid down in Article 23(2) of Regulation No 1/2003 a) Arguments of the parties b) Findings of the Court IV – The Court’s exercise of its unlimited jurisdiction a) Arguments of the parties b) Findings of the Court Costs * Language of the case: English. 1 – Confidential information omitted.