Judgment — ECLI:EU:T:2011:68
Date: 2011-03-03
Language of the case: German
Court formation: Second Chamber
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment - unfounded;Appeal against penalty - unfounded
Origin: Germany

Summary of discussions with JJC’; an email exchange of 18 January 1999 between Mr Wa., Mr J. and Mr B., employees of the VA Tech Group; an internal note of 2 December 2003, drafted by Mr We., employee of the VA Tech Group; two facsimiles of 21 July and 18 December 2003 from ABB to Siemens and to Alstom, and an undated internal note, drafted around September 2002 by Mr Zi., an employee of the VA Tech Group. – The GQ Agreement and the EQ Agreement 140 First, it must be noted that, in relation to the GQ Agreement and the EQ Agreement together with their annexes, while it is true, as set out in paragraphs 55 to 58 above, that their mere wording does not prove the existence of a cartel having effects within the EEA – still excluding Liechtenstein and Iceland, as indicated in paragraph 55 above – the EQ Agreement contains two provisions capable of providing indicia regarding the cartels effects on the common market. 141 In the first place, Article 2 of the EQ Agreement, entitled ‘Notification’ provides: ‘E‑members will notify enquiries as usual. For discussion with J‑group E‑members will notify enquiries to [the European secretary to the cartel] by using GQ notification formula as per Appendix No. 1.’ 142 In that regard, it must be held that ‘as usual’ allows it to be inferred that there were notifications and, therefore, a cartel, prior to the conclusion of the GQ Agreement and the EQ Agreement, which were both concluded on 15 April 1988, a fact which the Commission stated in the contested decision, without insisting on that point and without stipulating penalties in that regard, and one which Siemens disputes. Those words cannot be understood to mean ‘by using the form provided for the purposes of the GQ Agreement’ since the second sentence in Article 2 of the EQ Agreement would then be redundant with regard to the first. 143 In the second place, Annex 2 to the EQ Agreement, which contains a ‘Communication scheme’, provides, inter alia, that ‘the [European secretary] notifies projects [notified by the European producers] automatically to [the Japanese] side except the European projects’ and that ‘MM decide about notification of European projects to J‑group’. It must be specified, in that regard, as is also clear from that annex, that ‘MM’ means ‘members meeting’. In addition, it is apparent from Annex 1 to the GQ Agreement that the ‘E‑Group’ and the ‘J‑Group’ described the groups of European and Japanese producers respectively. Moreover, according to the Commission’s findings in recital 147 of the contested decision, not disputed by Siemens, the latter occupied the position of European secretary to the cartel during the entire period of its first participation in the cartel from 1988 to 1999. 144 It follows therefore from Annex 2 to the EQ Agreement that the GIS projects in Europe were dealt with within the group of European members of the cartel and, second, that those projects were dealt with differently than the GIS projects in the rest of the world, inasmuch as they were not automatically notified to the group of Japanese producers but only after a specific decision of the group of European members. 145 Such communications, even accepting that they are made only occasionally after a specific decision and/or a posteriori and worldwide, as Hitachi claims (see paragraph 96 above), are inconceivable without having a reason. On the contrary, in the context of a cartel, such as that established by the GQ Agreement and the EQ Agreement, the only conceivable reason to send such communications is that the information in question is used to implement the cartel. In the present case, more specifically, given that, as it was pointed out in paragraph 55 above, the large majority of European countries were excluded from the project sharing between the European and Japanese groups of producers pursuant to the GQ Agreement, there is no other possible explanation for the communications of sales made by European countries in those countries than that they were set against the global quota of European producers under the cartel. As has been explained in paragraph 98 above, the setting of sales in European countries – outside ‘home countries’ – against the global quota is in turn a significant indicator of the existence of an obligation on the Japanese producers to refrain from entering the European market, under the common understanding. 146 In any event, the arguments submitted by Siemens in that regard cannot succeed. First, Siemens’ assertion, that the Commission is attempting to rely on possible agreements in central and Eastern Europe as proof of infringements allegedly committed in the EEA, or on agreements added during the period from 2002 to 2004 in order to show the effects of the cartel during the period 1988 to 1999, is unfounded. The Commission has merely relied on the fact that discussions apparently took place between the groups of European and Japanese producers, with regard to the issue whether the Central and Eastern European markets, newly accessible following the fall of the iron curtain in 1989, should also be reserved to the European producers. In that context, it referred, in recitals 126 and 127 of the contested decision, to certain projects in those countries which were subject to discussion with the Japanese producers, to show that they had, in principle, an interest in and the option of supplying those markets. Such reasoning cannot be regarded as inappropriate in and of itself. 147 Second, Siemens’ argument that the communication to the group of Japanese producers could have concerned only projects in the countries of Central and Eastern Europe must be rejected. As the Commission correctly states, those countries were not, at the time when the GQ Agreement and the EQ Agreement were concluded, accessible to western suppliers. Therefore, the European projects referred to in the communication scheme had to be carried out in Western Europe, the majority of which – except for Switzerland – were part of the EEA from 1994. Likewise, contrary to what Siemens claims, the Commission’s line of argument is not illogical. The Commission in no way alleged, as Siemens would have one believe, that the obligation to notify had been ‘automatic’ or ‘obligatory’. On the contrary, it was entirely sufficient, for the Commission’s purposes in relation to that communication, that it was carried out worldwide and a posteriori, after a specific decision by the group of European members of the cartel. 148 Lastly, it must be pointed out that Siemens gives no convincing explanation as to why the communication scheme provided for the notification of GIS projects in Europe to the group of Japanese producers, even if not in a systematic manner and only after a specific decision of the group of European producers. In reply to a question from the Court at the hearing, Siemens claimed that the communications at issue could at most concern only the 11 GIS projects in Europe, referred to by the Commission in recital 164 of the contested decision, and therefore a very limited number of projects which represented only 1% of the volume of projects on the global list. But, as has been pointed out in paragraph 125 above, the small number of ‘European’ projects on the global list does not mean that the cartel did not set aside other projects in Europe, but can be explained by the fact that it was not necessary to discuss such projects in the context of the general cartel, in the presence of the Japanese producers. Therefore, the global list cannot be relevant for determining the number of projects for which communications were sent to the Japanese producers, in accordance with the communication scheme in Annex 2 to the EQ Agreement. 149 It follows that Annex 2 to the EQ Agreement constitutes a valid piece of evidence for the Commission’s finding that the projects located in Western Europe were part of the projects discussed and shared between the European producers and that the Japanese producers had to remain outside the European markets, in consideration for which the sales made by European producers in those countries were set against their global quota. – The document found on the premises of the VA Tech Group, entitled ‘Summary of discussions with JJC’ 150 In recital 135 of the contested decision, the Commission relies on a document found on a laptop computer during the inspection at the premises of the VA Tech Group, entitled ‘Summary of discussions with JJC’ and drawn up, according to the Commission, on 10 June 2003. That document is, in part, difficult to comprehend but nevertheless allows certain conclusions to be drawn. In particular, it makes reference, on two occasions, to the concept of ‘pays constr.’ which cannot reasonably be understood other than as ‘home countries’. Further, in that document reference is made to the ‘Last study made in February 99 – Exp. Outside E and manufacturing countries’ and, for each of the European members, identified by codes valid from July 2002, which Siemens does not dispute, the applicable quotas for before and after ‘02/99’ (signifying February 1999) are mentioned. That document also indicates the market shares of the European members on the European markets excluding ‘home countries’ between 1988 and 1999 and includes a non‑exhaustive list of European countries which were not home countries (‘Fin, Dan, Nor, Es, Po, Irl, Bel, Gre, Lux.’). 151 As regards the probative value and the credibility to attach to that document, it must be taken into account that the author, who is unknown, comments on facts going back about four years before the date on which the document was created, which he heard from another unknown individual. The person described as ‘JJC’ has not been identified and his initials do not correspond to any of the persons referred to by the Commission in Annex II to the contested decision, as having participated in the cartel. While those circumstances are not such as to remove all probative value from that document, they are none the less such as to invoke a certain circumspection with regard to the conclusions to be drawn, in particular as regards the value to attach to the detailed information which it contains, and justify attaching only moderate probative value to that document. 152 Therefore, it is necessary to attach some probative value to the fact that the concept of ‘home countries’ is not only mentioned twice in the document, but that the document also contains a non‑exhaustive list of the countries which were not ‘home countries’, and to the fact that there was a different scheme applicable between home countries and other countries, inasmuch as the quotas fixed within the cartel were not applicable to the latter. In relation to that last point, it must be pointed out that the quotas indicated in the document as being applicable after ‘02/99’ correspond exactly to those stated by the Commission in recital 145 of the contested decision, on the basis of other evidence, as applicable towards the end of the first phase of Siemens’ participation in the infringement. 153 Furthermore, it can also be inferred from that document that the European producers within the cartel exchanged information of the volume of their sales in Europe, excluding ‘home countries’. The fact that the undertaking within the VA Tech Group (‘the VA Tech undertaking’) had knowledge of precise figures on market shares in Europe (excluding ‘home countries’) for a period of 10 years, cannot be explained other than by the fact that those producers informed each other of their sales in Europe, excluding ‘home countries’. – The emails exchanged on 18 January 1999 between Mr M., Mr Wa., Mr J. and Mr B. who were employees of the VA Tech Group 154 On 18 January 1999, Mr Wa. sent an email to Mr J., who forwarded it, the same day, in printed and annotated form, by facsimile, to Mr B. In that email, the subject‑matter of which was ‘Siemens in UK’, Mr Wa. warned Mr J. that Siemens was about to create an alliance with another company for projects in the United Kingdom, which was perceived as a threat and had been declared, within ‘U.K. forum’ as ‘Bad Behaviour’. However, as no explanation had been received, Mr Wa. proposed waiting to see what would happen. In the facsimile, Mr J. advocated reacting by threatening to enter the German market in the 400 kilovolts GIS sector. Furthermore, he recalled the VA Tech Group’s position that the United Kingdom market historically belonged, in equal shares, to Reyrolle and GEC (whose GIS activities were merged with those of Alstom in 1989) and that any other undertaking obtaining orders would have to compensate for that, but regretted that the mechanisms provided to that effect were weak. 155 In the context of its reply to the written questions of the Court, Siemens contends that the only fact which arises from that document is that, in the opinion of the author of the email, Siemens appeared to be an aggressive competitor on the United Kingdom market. By contrast, it did not allow confirmation of the existence of protected ‘home countries’. 156 First, it must however be held that that exchange of emails confirms, in the context of the cartel, the existence of protection of the United Kingdom market for the benefit of the producers who historically were present on that market, namely Reyrolle and GEC, something which can be categorised, in essence, as protection of a ‘home country’, although that term is not used. The fact that other European members of the cartel had been active on that market does not preclude such an interpretation, since a compensation mechanism clearly existed, even if apparently it was not functioning satisfactorily. Second, it is apparent from the facsimile that the VA Tech undertaking had up until then remained outside the German market – at least in the 400 kilovolts GIS sector – for reasons which were neither technical nor commercial, since entry on to that market was envisaged as an act of reprisal against Siemens. The existence of protection of the German market as a ‘home country’ must be inferred therefrom, in the absence of an alternative plausible explanation. Third, it is apparent from the email that a ‘UK forum’ existed, in which problems relating to the United Kingdom market were discussed. Without it being necessary, in the context of the present case, to adjudicate definitively in that regard, it could relate to a forum for local concerted practice for members of the cartel active on that market. 157 As documents drawn up during the cartel by individuals involved in it, those emails constitute evidence with a very high probative value. – The documentary evidence concerning facts occurring outside the period between 2002 and 2004 158 As regards the internal note of 2 December 2003, drafted by Mr We. and summarising a meeting which took place on 1 and 2 December 2003; the facsimile of 21 July 2003 sent by ABB to Alstom and Siemens concerning a meeting on projects in Germany; the facsimile of 18 December 2003 sent from ABB to Alstom concerning the situation on the United Kingdom market; and the undated internal note, drafted around September 2002 by Mr Zi., it must be observed that those four documents concern solely situations and events falling clearly within the period between 2002 and 2004. 159 As has been indicated in paragraph 37 above, the Commission’s argument, that it is legitimate to apply observations relating to the period from 2002 to 2004 to the earlier period, as it is one and same infringement, must be rejected. On the contrary, given that, following the interruption by some undertakings of their participation, the cartel’s activities during the years from 1999 to 2002 were reduced and that 2002 marked a new start with a modified system, it is, rather, necessary to show continuity in the objectives, the participants and the scope of the cartel in order to establish that it was in fact a single infringement. 160 Accordingly, it must be held that the four documents at issue cannot constitute evidence as regards the first phase of Siemens’ participation in the cartel from 1988 to 1999. d) Findings on the second part of the first plea The effects of the cartel within the EEA 161 The cartel had effects within the EEA, since the European producers discussed GIS projects within the EEA and shared them out. That fact is confirmed by the body of evidence consisting of ABB’s statements, including the list of ‘European’ projects appearing in recital 164 of the contested decision and the statements of Mr M.; the statements of Fuji and Hitachi; Annex 2 to the EQ Agreement; the document ‘summary of discussions with JJC’, and the exchange of emails of 18 January 1999. Amongst that evidence, the statements of Mr M. and of Fuji and Hitachi, Annex 2 to the EQ Agreement and the exchange of emails of 18 January 1999 have a high probative value. 162 Melco’s statements, which are relied on by Siemens as evidence to the contrary, do not, in the light of such a body of consistent evidence, cast doubt on that finding. Melco comments, in particular, on the scope of the global cartel, that is to say the coordination between the groups of European and Japanese producers, and on the fact that, in the context of the cartel, there were no discussions of the European market or of GIS projects in that market. In that regard, it states that it has no evidence of a cartel on the European market. On the other hand, as a Japanese undertaking, it would not have been informed of discussions held within the group of European producers. It explicitly leaves open the possibility that other undertakings which participated in the cartel might have expanded the subject‑matter of their discussions to cover other issues, even pointing out, a number of times, that the Japanese producers had had to wait, before the beginnings of the cartel meetings, for the end of discussions between the European producers and it did not know the content of those discussions. Aside from the fact that Melco disputes the division of European markets and Japanese markets between the two groups of producers, and irrespective of whether its statements are credible, it must be noted that such statements cannot therefore be understood as supporting Siemens’ position that there were no discussions or allocations of GIS projects in the EEA. The reservation of European and Japanese markets for the groups of European and Japanese producers respectively 163 The fact that the European and Japanese producers shared markets amongst themselves worldwide with the result that the Japanese market was reserved to Japanese producers and the European market to European producers is confirmed by ABB’s statements, those of Mr M., the statements of Fuji and Hitachi and Annex 2 to the EQ Agreement. Apart from ABB’s statements, all those pieces of evidence have a high probative value. The protection of ‘home countries’ in Europe 164 The fact that there was protection for ‘home countries’ in Europe, with the result that the markets in those countries where European producers were historically present were reserved for those producers entirely and were not set against their quotas under the cartel, is confirmed by the body of evidence consisting of the statements of ABB and Mr M., the document ‘Summary of discussions with JJC’ and the exchange of emails of 18 January 1999. Amongst that evidence, the statements of Mr M. have a high probative value, and the exchange of emails of 18 January 1999 has a very high probative value. 165 In summary, each of the objections disputed by Siemens is based on evidence which, apart from the statements of ABB and Mr M., is of high probative value and on other evidence of a lesser probative value. It must therefore be held that the entirety of that evidence shows the existence of the cartel alleged in the contested decision. 166 As a result of all of the foregoing the Commission has established, to the requisite legal standard, the existence of a cartel for the period from 1988 to 1999 and, in particular, the fact that that cartel had effects within the EEA, the existence of market sharing between the European and Japanese producers, and the existence of protection of ‘home countries’. 167 It follows that the second part of the first plea must be rejected, as, accordingly, must the first plea in its entirety. II – The second plea, alleging infringement of Article 25 of Regulation No 1/2003 168 Siemens’ second plea is divided into three parts. In the first part, it claims that the Commission has not proved that it participated in the cartel beyond the date of 22 April 1999. In the second part, it relied on the rules on limitation of actions. In the third part, it claims that it did not participate in the cartel after 1 January 2004. A – The first part of the second plea, alleging failure to prove participation in the infringement between April and September 1999 1. Arguments of the parties 169 In support of this part of the second plea, Siemens raises eight grounds of complaint, alleging, first, a failure to prove its participation in an agreement on projects after April 1999, second, a failure to prove its participation in a meeting after 22 April 1999, third, the contradictory and barely credible nature of ABB’s statements, fourth, the inadmissibility of Mr M.’s statements, fifth, a lack of clear documentary evidence of its participation in the cartel until September 1999, sixth, a lack of clear evidence resulting from the statements of the other undertakings which participated in the cartel, seventh, failure to take account of evidence establishing an interruption in its participation in the cartel from April 1999 and, eighth, failure to take account of empirical economic evidence of the interruption in its participation in the cartel in April 1999 at the latest. 170 The Commission disputes the arguments put forward by Siemens. 2. Findings of the Court 171 It should be stated, at the outset, that it is not in dispute that Siemens interrupted its participation in the cartel in 1999. Rather, the parties dispute the exact date of that interruption. Siemens disputes that it participated in the cartel after 22 April 1999, the date of the Sydney (Australia) meeting which was the last in which it participated. The Commission, while admitting, as is apparent from recital 295 of the contested decision, that it was not possible for it to establish the exact date of that interruption, set the date of that withdrawal at 1 September 1999. It fixed that date on the basis of the statements of ABB and Mr M., and the indications contained in the document entitled ‘Summary of discussions with JJC’, found during the inspection of the premises of the VA Tech Group, and it considers that date confirmed by the statements of Areva, Melco, Fuji and Hitachi/JAEPS. 172 That disagreement raises the issue of which party bears the burden of proof in that regard. While Siemens considers that it is for the Commission to prove that Siemens participated in the cartel until 1 September 1999, the Commission contends that, once it has shown that the undertaking participated in the cartel, that participation is presumed to continue until proof of its cessation, evidence of which must be adduced by the undertaking which participated in the cartel. a) The division of the burden of proof between Siemens and the Commission 173 As regards the issue of the date on which Siemens’ participation in the infringement ceased, as a preliminary point it is appropriate to recall the settled case-law that it is for the party or the authority alleging an infringement of the competition rules to prove its existence by establishing, to the requisite legal standard, the facts constituting an infringement, and it is for the undertaking invoking the benefit of a defence against a finding of an infringement to demonstrate that the conditions for that defence are satisfied, so that the authority will then have to resort to other evidence (Peróxidos Orgánicos v Commission, paragraph 65 above, paragraph 50; see also, to that effect, Baustahlgewebe v Commission, paragraph 43 above, paragraph 58, and Aalborg Portland and Others v Commission, paragraph 48 above, paragraph 78). 174 In the present case, the general principle that the Commission is required to prove every constituent element of the infringement, including its duration (see, to that effect, Case T‑43/92 Dunlop Slazenger v Commission [1994] ECR II‑441, paragraph 79; Case T‑48/98 Acerinox v Commission [2001] ECR II‑3859, paragraph 55, and Case T‑62/02 Union Pigments v Commission [2005] ECR II‑5057, paragraph 36), that is likely to have an effect on its definitive findings as regards the gravity of that infringement is not called into question by the fact that the applicant raised a defence of limitation, in respect of which the burden of proof rests, in general, with the applicant. 175 Reliance on such a plea necessarily requires that the duration of the infringement and the date on which it came to an end be established. Those circumstances cannot alone provide justification for transferring the burden of proof in this regard to the applicant. First, the duration of the infringement, which requires that the date on which it ended be known, is one of the essential elements of the infringement, which must be proved by the Commission, irrespective of the fact that the disputing of those elements also forms part of the defence of limitation. Second, that conclusion is also justified in light of the fact that the non-limitation of a Commission proceeding under Article 25 of Regulation No 1/2003 constitutes an objective legal criterion, pursuant to the principle of legal certainty (see, to that effect, Joined Cases T‑22/02 and T‑23/02 Sumitomo Chemical and Sumika Fine Chemicals v Commission [2005] ECR II‑4065, paragraphs 80 to 82), and, thus, is a condition for the validity of any decision imposing a penalty. The Commission is required to comply with this condition even if the undertaking concerned has raised no defence in this regard (Peróxidos Orgánicos v Commission, paragraph 65 above, paragraph 52). 176 It must be noted that that apportionment of the burden of proof is likely to vary, however, inasmuch as the evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged (Peróxidos Orgánicos v Commission, paragraph 65 above, paragraph 53; see also, to that effect, Aalborg Portland and Others v Commission, paragraph 48 above, paragraph 79).Where, as in this case, the Commission has adduced evidence of the existence of an agreement, it is for an undertaking which has taken part in that agreement to adduce evidence that it distanced itself from that agreement, evidence which must demonstrate a clear intention, brought to the notice of the other participating undertakings, to withdraw from that agreement (Case T‑168/01 GlaxoSmithKline Services v Commission [2006] ECR II‑2969, paragraph 86; see also, to that effect, Joined Cases C‑2/01 P and C‑3/01 P BAI and Commission v Bayer [2004] ECR I‑23, paragraph 63, and Aalborg Portland and Others v Commission, paragraph 48 above, paragraphs 81 to 84). 177 It is in the light of those principles that it must be ascertained whether the Commission correctly established the facts on which it bases its finding that Siemens interrupted its participation in the cartel on 1 September 1999. b) The probative value of the evidence on which the Commission bases its finding that Siemens interrupted its participation in the cartel on 1 September 1999 178 As a preliminary point, it is important to bear in mind the essential elements of fact on which the Commission based its finding that Siemens interrupted its participation in the cartel on 1 September 1999, as they emerge, in particular, from recitals 186, 295, 296 and 298 of the contested decision. 179 First, ABB stated that Siemens had ceased participating in meetings of the cartel from the end of 1999 and Mr M. indicated that Siemens withdrew in September 1999. Second, the document entitled ‘Summary of discussions with JJC’, found in the premises of the VA Tech Group, contains a reference which the Commission interprets as referring to the departure of Siemens in September 1999. Third, the Commission indicates that Areva, Melco, Fuji and Hitachi/JAEPS confirmed that Siemens’ departure occurred in September 1999. The statements of ABB and Mr M. 180 In the context of the third ground of complaint in support of the first part of its second plea, Siemens claims that ABB’s statements are especially general and contradictory and that the statements were ‘developed’ to suit the circumstances, to the point where they are devoid of probative value. 181 In that regard, it must be stated that, in its statement of 7 May 2004, ABB stated that ‘to the best of [its] knowledge, for a certain period of time Siemens left the cartel.’ When the Commission asked him, during his hearing on 23 September 2005, whether he could indicate exactly when Siemens had interrupted its participation in the cartel, Mr M. replied: ‘Not exactly. We were in Geneva, but this I remember when Mr Theiss was announcing that, but not 100%. It was [1999]. Was it autumn or spring, I cannot remember. Is it important?’ 182 Lastly, in its statement of 4 October 2005, ABB stated that, in the meantime, Mr M. had recalled that Siemens had been still present at the cartel meeting in Sydney from 19 to 24 April 1999 and had not left the cartel until at least four to five months after that meeting, therefore in August or September and that it had been announced by Mr. Theiss of Siemens during a working group meeting in Geneva (Switzerland). 183 It must therefore be held that the statements of ABB and Mr M. as to the exact date on which Siemens interrupted its participation in the cartel in 1999 have evolved somewhat over time. However, those statement are, all the same, not contradictory but merely became more and more specific (‘around 1999’, ‘spring or autumn 1999’ and lastly ‘August or September 1999’) as Mr M., who appears to be the main source of information within ABB for facts surrounding the interruption in Siemens’ participation in the cartel, remembered increasingly specific details. 184 In particular, it must be stated that, contrary to what Siemens claims, Mr M.’s later recollections, which gave rise to ABB’s statement of 4 October 2005, are not inconsistent with his earlier statements on the circumstances which surrounded the interruption in Siemens’ participation in the cartel. While he did indicate that following unfavourable market developments in 1997 and 1998, Siemens recommenced aggressive competition on prices, at no point did he indicate that that was already the case in 1998. First, it is conceivable that the decision‑making process within Siemens concerning the correct reaction to unfavourable market developments could have taken some time. Second, it is just as conceivable that Siemens, while having decided at the end of 1998 not to continue participating in the cartel and having adopted more aggressive conduct on the market, tried to benefit for as long as possible from the effects of the cartel by delaying its announcement of that decision until September 1999. According to settled case‑law, such conduct – if assumed to be established – cannot suffice to prove that interruption, since an undertaking conducting itself in that manner may simply be trying to exploit the cartel for its own benefit (see, to that effect, Case T‑327/94 SCA Holding v Commission [1998] ECR II‑1373, paragraph 142; Mannesmannröhren‑Werke v Commission, paragraph 54 above, paragraphs 277 and 278; Union Pigments v Commission, paragraph 174 above, paragraph 130, and Case T‑43/02 Jungbunzlauer v Commission [2006] ECR II‑3435, paragraph 269). 185 In relation to the calling into question by Siemens of ABB’s statement, it must be held that, even if it cannot be ruled out, as stated in paragraph 64 above, that ABB might have felt inclined to maximise the significance of the infringing conduct of its competitors, that fact does not deprive the statements of ABB and Mr M. of all probative value as regards the interruption by Siemens in its participation in the cartel in 1999. Since ABB refers, in that regard, solely to Mr M.’s recollections, it is, in those circumstances, the credibility of Mr M.’s testimony which determines the credibility of ABB’s statements. As has been set out in paragraph 76 above, the fact that there may be some slight inaccuracies in Mr M.’s statements is not such as to affect, generally, the probative value of those statements. 186 Furthermore, the fourth ground of complaint raised by Siemens in support of the first part of its second plea, according to which Mr M.’s statements are inadmissible as evidence, since it did not have the possibility of hearing or directly questioning that witness, contrary to what is provided for in Article 6(3)(d) of the ECHR, must also be rejected. 187 According to settled case‑law, fundamental rights form an integral part of the general principles of law whose observance the Community judicature ensures (Opinion 2/94 [1996] ECR I‑1759, paragraph 33, and Case C‑299/95 Kremzow [1997] ECR I‑2629, paragraph 14). For that purpose, the Court of Justice and the General Court draw inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories. In that regard, the ECHR has special significance (Case 222/84 Johnston [1986] ECR 1651, paragraph 18, and Kremzow, paragraph 14). Furthermore, under Article 6(2) EU the Union is to respect fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, as general principles of Community law. 188 It is therefore necessary to examine whether, in the light of those considerations, the Commission failed to observe the rights of the defence, a fundamental principle of the Community legal order (Case 322/81 Nederlandsche Banden‑Industrie‑Michelin v Commission [1983] ECR 3461, paragraph 7), by not offering Siemens the opportunity to question the witness, Mr M, directly. 189 In that regard, according to settled case‑law, observance of the rights of the defence requires that the undertakings and associations of undertakings concerned by the Commission’s investigation be afforded the opportunity, from the stage of the administrative procedure, to make known their views on the truth and relevance of the facts, objections and circumstances put forward by the Commission (see Case T‑314/01 Avebe v Commission [2006] ECR II‑3085, paragraph 49, and the case‑law cited). On the other hand, it does not require that those undertakings are given the opportunity themselves to question, during the administrative procedure, the witnesses heard by the Commission (see, to that effect, Aalborg Portland and Others v Commission, paragraph 48 above, paragraph 200). 190 Therefore, Siemens’ ground of complaint must be rejected. 191 In conclusion, a high probative value must be attached to the statements of ABB and Mr M. as regards the date on which Siemens interrupted its participation in the cartel in 1999. None the less, in accordance with the principle set out in paragraph 66 above, those statements must be supported by other evidence. The document entitled ‘Summary of discussions with JJC’ 192 As has already been stated in paragraph 151 above, the probative value of that document must be treated with caution, in particular in relation to the value to attach to the detailed information which it contains. The exact date on which Siemens interrupted its participation in the cartel in 1999 constitutes such detailed information. Moreover, the document is not, as regards its reference to the date of that interruption, devoid of all ambiguity. 193 The first line of that document reads as follows: ‘A/Stop 3==>09/99 1==> for a while in 00’ 194 Since, during the creation of the document on 10 June 2003, the number ‘3’ was the code for Siemens within the cartel, the Commission inferred that Siemens had interrupted its participation in the cartel in September 1999. As Siemens correctly points out in the context of its fifth ground of complaint, alleging a lack of clear documentary evidence of its participation in the cartel until September 1999, such an interpretation leads necessarily to the conclusion that ABB, designated by the code 1, interrupted its participation in the cartel during 2000, although it is undisputed that ABB always participated in the cartel. Therefore, either the Commission’s interpretation of that passage of the document is wrong, or the indication ‘1 ==> for a while in 00’ is wrong. If the latter were the case, there would be no reason to attach more credibility to the reference ‘3 ==> 09/99’. In any event, it is necessary to rule out the Commission’s interpretation that the term ‘Stop’ in the first line of the document referred to in paragraph 193 above refers only to ‘3 ==> 09/99’ and not to ‘1 ==> for a while in 00’. 195 In conclusion, it must be held that the probative value of that document, as regards the date on which Siemens interrupted its participation in the cartel in 1999, is extremely low. The statements of Areva, Melco, Fuji and Hitachi/JAEPS – Areva’s statements 196 In relation to the statements of Areva, the Commission refers, in recital 186 of the contested decision, to a document produced by Areva in the context of its application for immunity from fines entitled ‘Explanatory note on the functioning of the cartel for the GIS markets’. Under the title ‘Background’, that document states the following: ‘A first cartel existed between the end of 1980 and 1997 when it was interrupted. From 1997 the participants continued to meet, but they did not agree on market sharing or price fixing and the meetings of that cartel ended in September 1999, as Siemens had definitively withdrawn.’ 197 It must first be observed that that information is not unambiguous. As Siemens points out in its sixth ground of complaint, relied on in support of the first part of the second plea, it is possible to interpret it as meaning that the interruption in its participation in the cartel took place before the month of September 1999, but that the effect of that interruption – namely not attending meetings in the context of the cartel – occurred only in September. However, such an interpretation cannot be upheld. Indeed it must be noted that Areva’s assertion that there were no more meetings from September 1999 was, subsequently, shown to be false, as was confirmed, inter alia, by the evidence put forward by the Commission in recitals 191 to 197 of the contested decision. While that circumstance does not make one or other of the interpretations of the passage quoted in paragraph 196 above more probable, it is, in any event, likely to cast doubt generally on the reliability of Areva’s statements. In that regard, the Commission itself, in recitals 290 and 291 of the contested decision, categorised Areva’s statements as ‘contradictory and ambiguous’, a fact which was relied on, among others, for not granting Areva a reduction in the fine pursuant to the Leniency Notice, as is apparent from recital 531 of the contested decision. 198 Therefore, a rather low probative value must be attached to Areva’s statements. 199 Second, to the extent that the Commission relies, in recital 285 and footnote 237 of the contested decision, on Areva’s reply to the statement of objections, Siemens’ argument that that reply cannot be relied on against it must be upheld, since Siemens did not have access to that statement prior to the adoption of the contested decision (see, in that regard, the case‑law cited in paragraph 189 above). The Commission confirmed, in its reply to the written questions of the Court before the hearing, that Areva’s reply to the statement of objections had not been communicated to Siemens before the contested decision was adopted. – The statements of Melco 200 In a document of 4 November 2004, produced in the context of its application pursuant to the Leniency Notice, Melco stated: ‘Until September 1999, the Group ran smoothly in line with its objectives. Then in September 1999, Siemens formally announced that it was withdrawing from the Group because the top managers in Siemens had discovered the Group’s activity.’ 201 Melco therefore explicitly confirmed that Siemens had not announced the interruption of its participation in the cartel until September 1999. 202 In the context of its sixth ground of complaint, in support of the first part of the second plea, Siemens claims that, in recital 292 of the contested decision, the Commission itself classified those statements of Melco as lacking probative value, on account of the fact that they were contradictory and ambiguous. In that regard, it must be held that, during the administrative procedure, Melco submitted two different statements, namely, first, a document of 4 November 2004, produced in the context of its application pursuant to the Leniency Notice, from which comes the passage cited in paragraph 200 above and, second, the reply to the statement of objections of 5 July 2006. It is only in relation to that latter document that the classification of lacking probative value, appearing in recital 292 of the contested decision, applies. Furthermore, such a classification concerns only an isolated aspect of that reply, that is to say, Melco’s allegation that the cartel had totally ended in 1999, after Siemens interrupted its participation in the cartel. The Commission in particular considered that that allegation was merely based on statements of other parties to the procedure, and was not submitted for the purposes of its own defence. By contrast, the contested decision contains no express assessment of the probative value of the statements made by Melco on 4 November 2004 in the context of its application pursuant to the Leniency Notice. 203 It must be held that the indication of September 1999 as the date on which Siemens interrupted its participation in the cartel, in Melco’s statement of 4 November 2004, must benefit from a high level of credibility, since Melco could have had no interest in indicating a date later than the actual date of that interruption. Given that Siemens’ departure – and that of Hitachi a few months later – was such as to give more credibility to the ‘breakdown of the cartel’ which took place, according to Melco, from 1999/2000, Melco actually had an interest in indicating a date earlier than the actual date. – The statements of Fuji 204 In its reply to the statement of objections of 11 July 2006, Fuji stated: ‘When Siemens withdrew from the cartel in September 1999, the GQ Agreement cartel started to break down. As far as Fuji is aware there were no all party meetings after the Sydney meeting.’ 205 It has already been stated in paragraph 90 above, contrary to what Siemens claims, that a high level of credibility must be attached to Fuji’s statements, although they were made relatively late in the course of the procedure and in close temporal proximity to an application pursuant to the Leniency Notice. Further, in relation to the date on which Siemens interrupted its participation in the cartel, the same considerations as are valid for Melco are valid for Fuji (see paragraph 203 above): given that that interruption made credible the notion of the ‘breakdown of the cartel’ some time thereafter, a notion also supported by Fuji, it was not in Fuji’s interest to make that date artificially later. – The statements of Hitachi 206 In recital 186 and in footnote 238 of the contested decision, the Commission refers to Hitachi’s reply to the statement of objections, in which Hitachi confirmed that Siemens interrupted its participation in the cartel in September 1999. However, as Siemens points out, without being challenged by the Commission, that reply cannot be relied on against it, since it did not have access to that reply before the contested decision was adopted (see, in that regard, the case‑law cited in paragraph 189 above). Therefore that piece of evidence must be excluded. Interim conclusion 207 It follows from the foregoing that the Commission could rely on various pieces of evidence to find that Siemens had participated in the cartel until September 1999, including the statements of ABB and Mr M. which were held to be credible and which were confirmed, on that point, by the statements of Areva, Melco and Fuji, of which those of Melco and Fuji benefit from a high level of credibility. 208 In the light of those factors, it must be examined whether the other evidence submitted by Siemens is such as to overturn the Commission’s finding and to establish Siemens' claim that it interrupted its participation in the cartel from April 1999. c) The evidence submitted by Siemens to establish that it interrupted its participation in the cartel in April 1999 The empirical economic evidence that it interrupted its participation in the cartel at the latest in April 1999 209 In the context of its eighth ground of complaint, relied on in support of the first part of its second plea, Siemens relies on the analysis to substantiate the interruption of its participation in the cartel from April 1999. According to Siemens, the analysis established that, in the period between April and September 1999, it behaved in a competitive manner on the market, as it did after September 1999 and in contrast to how it acted before April 1999. 210 In that regard, reference is made to the considerations set out in paragraphs 135 to 138 above, which are also valid in relation to the issue of Siemens’ interruption of its participation in the cartel. On the one hand, as Article 81 EC prohibits not only agreements which have as their effect the distortion of competition, but also those agreements which have that as their object, the Commission is not required to prove the actual effects when finding an infringement. On the other, even assuming that Siemens behaved in a competitive manner during the period from April to September 1999, that fact would not prove that it had distanced itself from the cartel, but only that it had not complied with the agreements. As the Commission correctly point out, that may just as well be due to the fact that Siemens was attempting to benefit from the cartel. 211 Therefore, that ground of complaint must be rejected. The testimony of Mr Se. 212 In the context of its seventh ground of complaint, in support of the first part of its second plea, Siemens relied on a statement from Mr Se., employed by Alstom at the time, which stated, in September 2006: ‘In April 1999, I understand that it was no longer possible to have a cartel, since Siemens, one of the main players, announced its departure from the cartel’. According to Siemens, the fact that the Commission excluded that statement constitutes an error of law. 213 In that regard, first, it should be noted that, the statement of Mr Se. does not necessarily contradict the Commission’s finding that Siemens interrupted its participation in the cartel in September 1999. Mr Se. dated the announcement of Siemens decision to no longer participate in the cartel in April 1999, and not the actual interruption of its participation in the cartel. It is therefore conceivable that, in April 1999, Siemens merely announced its decision and that the interruption in its participation actually only occurred on a later date. For that reason alone, Siemens’ argument must be rejected. 214 Second, the Commission did not exclude the testimony of Mr Se. solely on the ground that he gave it ‘exclusively under the supervision of Alstom’s lawyers’, as Siemens claims, but also because it did not consider it credible in itself, since Mr Se. himself was not witness to the facts of which he spoke. As is apparent from recital 289(b) of the contested decision, it took into account, in particular, the fact that Mr Se. himself accepted that, before April 1999, he was up-to-date on the cartel, but had no information on how the cartel functioned, did not know the identity of the participants, the dates and places of the meetings or the rules which applied. In addition, it is apparent from the table of meetings provided by ABB on 5 October 2005, which has not been challenged by Siemens, that Mr Se. did not take part personally in the Sydney meeting in April 1999, as Alstom was represented by three other employees. Such an assessment of the evidence by the Commission is not mistaken. In any event, it is not for the Court, in the absence of detailed argument from Siemens, to replace the Commission’s assessment with its own. 215 Therefore, the ground of complaint must be rejected in so far as it concerns the testimony of Mr Se. The testimony of Mr Tr., Mr E. and Mr Sch. 216 In the context of its seventh ground of complaint, raised in support of the first part of its second plea, Siemens also criticises the Commission for not having taken account of the statements of its former employees, Mr Tr., Mr E., and Mr Sch. which it produced during the administrative procedure. 217 At the outset it is necessary to reject Siemens’ claim that the Commission did not take account of the statements of its former employees. Once Siemens had produced those written statements, by letter of 7 August 2006, the Commission indicated, by letter of 12 December 2006, that it did not consider it necessary to interview those witnesses, since their testimony had not given rise to questions on the Commission’s part. 218 In addition, the Commission indicated that the statements of former employers were not such as to change its assessment regarding the date on which Siemens interrupted its participation in the cartel, relying on the range of statements and evidence which it had gathered. 219 In that regard, it must be stated that the credibility of statements of former employees of Siemens is seriously affected by the fact that those employees dispute that there was any agreement on GIS projects in Europe, even though, as has been set out in the context of the first plea, the Commission has established to the requisite legal standard that the common understanding also related to GIS projects in Europe. 220 Moreover, as regards the exact date on which Siemens interrupted its participation in the cartel in 1999, it must be pointed out that Mr Tr., as is apparent from his statement, retired in 1994 and stated that he did not know precisely when Siemens withdrew from the cartel. Mr Sch. indicated that his boss, MR E., had told him, in the course of 1998, that he was going to retire as anticipated in 1999 and that he had also decided that Siemens would give up its participation in the GQ Agreement. However, he did not state when that decision became effective and, in addition, the dates indicated by him were not consistent with those indicated by Mr E. The latter stated that he retired only in the middle of 2000 and decided to withdraw Siemens from the GQ Agreement prior to (‘im Vorfeld’) the Sydney meeting, of which he informed Mr Sch. asking him to take the necessary steps. It may be that the facts stated by Mr Sch. took place one year after the dates indicated by him. Mr E., furthermore, confirmed that he had informed Mr V., an employee of Alstom, before the Sydney meeting, and the Japanese undertakings ‘in close temporal proximity’ of that meeting, while admitting that he did not recall if it was before or after that meeting. By contrast, he expressly acknowledged that he had not informed the other undertakings, in particular ABB, and had not referred to Siemens’ withdrawal during the annual meeting. 221 In the light of the foregoing, it must be held that that evidence establishes, to the requisite legal standard, that there was no ‘official’ distancing by Siemens at that meeting. In a cartel involving a number of undertakings, a clear and explicit distancing on the part of one of the undertakings must be addressed to all the other participants. There is, therefore, no question of an ‘unacceptable discrimination’ in relation to other similar cases, as Siemens claims. 222 Moreover, Mr E. also stated that it was only after informing the Japanese undertakings that he had informed the secretary to the European cartel of Siemens’ interruption of its participation in the cartel, who then informed the other undertakings on a date unknown to Mr E. It must be borne in mind, in that regard, that, according to Mr Tr.’s statement, at that stage the secretariat was handled on behalf of Siemens by Mr Th. who was also present at the Sydney meeting. Mr E.’s testimony does not therefore contradict the Commission’s findings in that regard. On the contrary, his statement confirms that Siemens did not openly distance itself from the cartel at the Sydney meeting in April 1999 and, in addition, it is also perfectly consistent with Mr M.’s version, according to which he had been informed by Mr Th. at a job meeting in Geneva in September 1999. It must be pointed out, in that regard, that it is clear from Mr E.’s statement that Mr Th. was still carrying out his role of European secretary to the cartel on behalf of Siemens for some time after the Sydney meeting, which alone is sufficient to reject Siemens’ argument that it had interrupted its participation in the cartel in April 1999. According to settled case‑law, the fact that an undertaking does not publicly distance itself from an infringement in which it participated or does not report it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery, with the result that such tacit acceptance can constitute complicity or a passive mode of participation in the infringement (Aalborg Portland and Others v Commission, paragraph 48 above, paragraph 84). 223 Therefore, far from calling into question the Commission’s finding that Siemens interrupted its participation in the cartel only in September 1999, the testimony of Mr Tr., Mr E. and Mr Sch. rather tend to confirm that finding to a certain extent. 224 That ground of complaint must therefore be rejected in so far as it concerns the testimony of Mr Tr., Mr E. and Mr Sch. and, therefore, the ground of complaint must be rejected in its entirety. The lack of evidence of Siemens’ participation in an agreement on GIS projects after April 1999 225 In the context of its first ground of complaint, relied on in support of the first part of the second plea, Siemens claims that, in the contested decision, the Commission does not allege it participated in an agreement on GIS projects after April 1999. According to Siemens, the last of the projects referred to by the Commission in which it participated dated from 8 March 1999 and the information provided by Fuji in its application pursuant to the Leniency Notice does not prove Siemens’ participation in projects or information exchange in that regard after March 1999. 226 It should be pointed out, in that regard, that the lack of evidence of agreements on GIS projects after March 1999 does not mean that such agreements did not exist. As the Commission contends, the global list is not exhaustive. In addition, even if it is proved that Siemens did not participate in an agreement on projects after March 1999, that would not constitute evidence of the interruption of its participation in the cartel. As the Commission points out in its written pleadings, the criticism which is made of Siemens in the contested decision goes well beyond only agreements on actual projects. It suffices to cite, in that regard, the fact that Siemens carried out, during that time, the duties of European secretary to the cartel, a role which facilitated the functioning of the cartel. 227 Therefore, the arguments submitted by Siemens in the context of this ground of complaint are not such as to overturn the Commission’s finding, based on the evidence in paragraphs 179 to 207 above, showing that Siemens participated in the cartel until September 1999. That ground of complaint must therefore be rejected. The lack of evidence of a meeting after 22 April 1999 228 In the context of its second ground of complaint, relied on in support of the first part of its second plea, Siemens claims that the Commission has adduced no evidence that, in 1999, it had participated in a meeting later than the Sydney meeting organised from 19 to 24 April of that year. 229 In that regard, it must be noted that the lack of evidence of a meeting after April 1999 is not such as to undermine the indicia on which the Commission relied to find that Siemens participated in the cartel until September 1999. 230 The fact that the Commission had no knowledge of later meetings does not mean that such meetings did not take place. In particular, by stating, in recital 183 of the contested decision, that ‘[a]fter the meeting in Sydney of 19-24 April 1999, annual summit meetings were interrupted’, the Commission made clear reference to the annual meetings and therefore did not rule out that there had been other meetings at an operational level after that date. In that regard, it is apparent from Article 3 of the GQ Agreement that the general meeting was to be held once a year. Therefore, even if Siemens had not interrupted its participation in the cartel in the course of 1999, it would not have been possible to expect another meeting of that kind to take place in that same year. On the other hand, Article 5 of the GQ Agreement provides for the holding of committee meetings every two weeks, in order to exchange mutual points of view on the projects claimed by each group. As is clear from Annex 4 to the GQ Agreement, Siemens (designated by the code ‘8’) was a member of the European Committee and thus had to take part in those meetings. Furthermore, it is apparent from Article 5 of the EQ Agreement that the job meetings, in which all involved members of the cartel had to participate, were held for both projects which had been allocated and for those for which only an agreement on a minimum price had been reached, and it was for the European secretary to the cartel – for Siemens – to send the invitations to those meetings and to chair them. In those circumstances, the mere fact that the Commission has not established the date and place of other meetings in 1999 after Sydney does not allow the conclusion that such meetings did not take place. 231 That ground of complaint must therefore be rejected. 232 In the light of all of the foregoing, it must be held that the Commission had sufficient evidence available to it to justify finding that Siemens had participated in the cartel until September 1999. Furthermore, Siemens did not give a convincing alternative explanation for the existence of that evidence, in accordance with the requirements laid down in the case‑law. Taking account of the factual elements referred to in paragraph 207 above, relied on by the Commission to establish Siemens’ participation until September 1999, it was for Siemens to provide an explanation or alternative justification capable of undermining the Commission’s findings for which it bore the burden of proof (see, to that effect, Aalborg Portland and Others v Commission, paragraph 48 above, paragraph 79, and Peróxidos Orgánicos v Commission, paragraph 65 above, paragraph 71). 233 Therefore, the first part of the second plea must be rejected B – The second part of the second plea, based on the rules on limitation of actions 1. Arguments of the parties 234 In relation to the first phase of its participation in the infringement in respect of which it is criticised and which ended on 22 April 1999, Siemens claims that the limitation period ended on 22 April 2004 and thus prior to the inspections which took place on 11 and 12 May 2004. According to it, the Commission’s argument that it participated, on two occasions, in the same single and continuous infringement cannot allows the rules on limitation to be ignored. The cartel which existed from 1988 to 1999 was clearly different from that which existed between 2002 and 2004. 235 The Commission disputes the arguments put forward by Siemens. 2. Findings of the Court 236 Article 25(1)(b) of Regulation No 1/2003 sets a limitation period of five years for infringements of the kind alleged against Siemens. Pursuant to the second sentence of Article 25(2), in the case of continuing or repeated infringements, time is to begin to run on the day on which the infringement ceases. Under the first sentence of Article 25(3) of that regulation, any action taken by the Commission for the purpose of the investigation or proceedings in respect of an infringement interrupts the limitation period. 237 In the present case, the plea that the action is time barred, which is raised in relation to the first phase of Siemens’ alleged infringement, presupposes, therefore, that two cumulative conditions are met. First, the first phase must have ended at the latest on 10 May 1999, that is to say, five years before the day preceding the on‑site inspections which the Commission carried out on 11 and 12 May 2004. Second, the two phases of the infringement alleged against Siemens cannot have formed part of a single and continuous infringement, within the meaning of Article 25(2) of Regulation No 1/2003, since, in such a situation, the limitation period starts to run only on the day when the second of those phases ended in 2004. 238 Suffice it to recall, in that respect, as has been set out in paragraph 232 above, that the Commission correctly stated, in the contested decision, that the first phase of Siemens’ participation in the infringement ended only in September 1999 and therefore after 10 May 1999. 239 Therefore, the plea that the action is time barred which is the subject‑matter of the second part of the second plea must be rejected. 240 In any event, the second condition laid down in paragraph 237 above is also not met. The Commission correctly stated that the cartel in which Siemens participated from 2002 was, in essence, the same cartel in which it participated until 1999. 241 In that regard, a number of criteria have been identified in the case‑law as relevant for assessing the single nature of the infringement, namely the fact that the objectives of the practices at issue were identical or different (Case T‑21/99 Dansk Røhrindustri v Commission [2002] ECR II‑1681, paragraph 67; see, also, to that effect, Case C‑113/04 P Technische Unie v Commission [2006] ECR I‑8831, paragraphs 170 and 171, and Jungbunzlauer v Commission, paragraph 184 above, paragraph 312), the identical nature of the relevant goods or services (see, to that effect, judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission, not published in the ECR, paragraph 118, 119 and 124, and Jungbunzlauer v Commission, paragraph 184 above, paragraph 312), the fact that the undertakings which took part were identical (Jungbunzlauer v Commission, paragraph 184 above, paragraph 312), and the identical nature of the means of implementing the cartel (Dansk Røhrindustri v Commission, paragraph 68). The fact that the physical persons involved on behalf of the undertakings are identical and that the geographical scope of the practices at issue is identical are other relevant criteria. 242 In the present case, all of the criteria referred to in paragraph 241 allow the finding that the cartel in which Siemens participated from 2002 was, in essence, the same as the one in which it had participated until 1999. 243 First, the objective of stabilising the market shares of the members of the cartel, of sharing world markets between the Japanese and European producers – inter alia, by reserving European markets for European producers – and of avoiding price erosion, was the same throughout the two periods at issue. In that regard, the arguments raised by Siemens, that the two phases of its participation in the infringement were entirely different from each other, must be rejected. 244 As a starting point, it is not true that the cartel applied to European projects only from 2002. On the contrary, as is apparent from the findings in paragraph 161 above, the Commission has established to the requisite legal standard that the cartel applied to GIS projects within the EEA from the outset. 245 Next, it is insignificant whether the GQ Agreement was cancelled and replaced by another agreement, as Siemens alleges, relying on Hitachi’s statements, or was simply amended, as long as the objective of the practices at issue remained the same. 246 Lastly, the concept of ‘common objective’ implicitly defended by Siemens must be rejected. Under that concept, the finding of the existence of a single infringement depends not only on objective criteria, such as those referred to in paragraph 241 above, but assumes also the existence of a subjective element in the form of an overall common intention, which is lacking in the present case. It must be noted, in that regard, that Siemens’ proposition finds no support in the case‑law in paragraph 241 above, which does not refer to a subjective criterion in relation to the assessment of the single nature of the infringement. Therefore, the issue whether all of the agreements and practices contrary to Article 81 EC constitutes a single and continuous infringement is, on the contrary, an issue which depends solely on objective factors, including the common objective of those agreements and practices. That latter criterion is one which must be assessed in the light only of the content of those agreements and practices, which must not be confused, as Siemens seem to have done, with the subjective intention of the various undertakings to participate in a single and continuous infringement. By contrast, that subjective intention can and must be taken into account only in the context of assessing individual participation of an undertaking in a single and continuous infringement (see paragraph 253 below). 247 Second, the operating methods of the cartel remained on the whole unchanged, even it they progressively evolved over the years, in particular in accordance with the reduction in the number of participating undertakings following the mergers within the sector and the technical evolution of means of communication. However, as the Commission set out in recital 280 of the contested decision, those changes did not occur at one precise moment between 1999 and 2002, but incrementally. Moreover, they did not affect the essential principles of the method of operation, namely the sharing of GIS projects among the cartel members on the basis of quotas fixed by them, the manipulation of bids, and the setting of minimum prices for GIS projects that had not been allocated. 248 Third, during the two periods at issue, the cartel was aimed at the same market, namely that in GIS projects in the form of loose equipment or turnkey power sub‑stations. 249 Fourth, the undertakings which participated in the cartel, in essence, remained the same throughout the cartel from 1988 to 2004, regard being had to the merger process within the GIS sector which took place during that period and with the sole exception of the temporary absence of Siemens, the VA Tech undertaking and Hitachi. 250 Fifth, the individuals representing the various undertakings within the cartel were, to a very large extent, the same in 1999 and 2002, leaving aside a certain fluctuation which is normal within each undertaking. The continuity of the individual representatives is proved by the various meeting lists which form part of the case‑file and, in particular, those appearing in Annex 1 to the contested decision, and by the list of those individuals from the undertakings involved in the cartel appearing in Annex II to the contested decision. 251 Sixth, the geographical scope of the cartel was the same in 1999 and during the period from 2002 to 2004. It had increased slightly since 1988 on account of the fact that the markets of Central and Eastern Europe had, in the meantime, become accessible to the cartel members. 252 Seventh, as pointed out by the Commission and not challenged by Siemens, the fact that other members continued the cartel, without those undertakings which were temporarily absent, and that the objective continuity of a single and continuous infringement was thus maintained, also shows that it was one and the same infringement. In that regard, the Court must reject Siemens’ argument that, by taking that aspect into account, the Commission is penalising it for the fault of others. There is no question of holding Siemens liable for the period between September 1999 and March 2002, but rather of holding the single nature of the infringement, which continued in its absence, against it. As stated in the previous paragraph, Siemens was aware, or should have been, of the fact that from 2002 it was participating in the same infringement as that in which it had participated until 1999. 253 Finally, in relation to the subjective aspect, it is sufficient that, when Siemens recommenced participation in the cartel, it was aware that it was participating in the same cartel as before. For the single nature of that infringement to be held against it, it would even suffice that Siemens was aware of the essential criteria, referred to in paragraph 241 above, which justify finding a single infringement, even if it did not itself infer its existence from them. In the light of the fact that its employees, Mr S. and Mr Ze. participated, on its behalf, in the cartel both before its withdrawal in 1999 and after its return in 2002, Siemens could not be unaware of the fact that the factors determining the single nature of the infringement were the same, and in particular that it concerned the same objectives, goods, geographical markets and participating undertakings. 254 Therefore, the plea that the action was time barred raised by Siemens must, on any reading, be rejected on account of the fact that the two phases of the infringement in which it is alleged to have participated were part of the same single and continuous infringement. 255 In conclusion, the Court must reject the second part of the second plea alleging that the action in respect of the first phase of the Siemens’ alleged infringement was time barred. C – The third part of the second plea, alleging no participation in the cartel after 1 January 2004 1. Arguments of the parties 256 Siemens claims that the Commission wrongly found, in the contested decision, that the infringement definitively ceased on 11 May 2004, although no actual repercussions had been noted in the common market after January 2004, since the last relevant meeting had been held on 21 January 2004 and had not led to any agreement on price. Therefore, the cartel no longer had any effects on the market from January 2004 and the Commission, in addition, did not adduce evidence of such effects. 257 The Commission disputes the arguments put forward by Siemens 2. Findings of the Court 258 This part of the second plea must be rejected for two reasons 259 First, as was recalled in paragraph 135 above, according to settled case‑law, it follows from the actual wording of Article 81(1) EC that agreements between undertakings are prohibited, regardless of their effect, where they have an anti‑competitive object (see Commission v Anic Partecipazioni, paragraph 43 above, paragraph 123, and JFE Engineering and Others v Commission, paragraph 49 above, paragraph 181). Consequently, it is not necessary to show actual anti‑competitive effects where the anti‑competitive object of the conduct in question is proved (see Volkswagen v Commission, paragraph 135 above, paragraph 178, and the case‑law cited). It has also been pointed out, in paragraph 134 above, that, in the present case, the Commission relied mainly on the object of the agreement sanctioned under Article 1 of the contested decision, which was to restrict competition. It first found, in recitals 303 and 304 of the contested decision, that the complex of agreements and/or concerted practices described had as it object the restriction of competition within the meaning of Article 81 EC and Article 53 of the EEA Agreement and, that, in those circumstances, it was not necessary for the purposes of applying those provisions to show the actual anti‑competitive effects of an agreement, before adding, in recital 308 of the contested decision, that, by its very nature, the implementation of a cartel agreement of the type described above leads to a significant distortion of competition. 260 Therefore, as the Commission was correct to point out, Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraphs 236 and 240, does not support Siemens’ argument. The passages of that judgment raised by Siemens do not relate to the finding of an infringement or its duration, but only to the assessment of its gravity. Moreover, the Commission, in that case, expressly relied on the effect which the cartel had had on the prices of the goods at issue. As was observed in the preceding paragraph, that was specifically not the situation in the present case. 261 Therefore, Siemens’ arguments seeking to substantiate the absence of further repercussions, due to the cartel, after 1 January 2004 are irrelevant. 262 Second, as the Commission indicated in recital 215 of the contested decision, on the basis of the statements of the VA Tech Group and without challenge by Siemens, the communications and meetings between the members which remained in the cartel after the departure of ABB concerned, in particular, information exchange regarding the tenders already underway, the position of parties external to the cartel, the preservation or interruption of contacts and issues of security. Those issues for discussion show that, even if the members which remained in the cartel did not manage to agree on specific projects, they had the intention to continue the cartel or, at the very least, had not taken a decision to bring it to an end. 263 That interpretation of the facts is not called into question, contrary to what Siemens claims, by a statement from Hitachi regarding the end of the cartel. That statement was made in the form of a table indicating, for various meetings in the context of the cartel, the date, the place, the participants, a brief outline of the subject‑matter and the source of the information from among the employees of Hitachi. First, it must be stated, in that regard, that the indications on the subject‑matter of the various meetings are only very brief and sometimes general. For example, for the meetings of 17 March and 8 April 2004, it is noted, respectively, that ‘the aim of the meeting was to exchange information’ and that ‘[the job meeting] included a general discussion of the market’. Those indications do not clearly reveal the precise subject‑matter of the discussions and in no way exclude that possibility that there was information exchange and discussions constituting an infringement of Article 81(1) EC and Article 53 of the EEA Agreement. 264 In addition, it must be observed that the extracts from Hitachi’s statement produced by Siemens comprise pages 7278, 7280 and 7281 of the file for the proceeding before the Commission, but not page 7279, which may contain indications on other meetings which took place between January and March 2004. Irrespective of the issue of their credibility and their probative value, those documents do not fully explain Hitachi’s statements regarding the meetings of 2004, in relation to which Siemens claims that they gave rise to no new repercussions due to the cartel. Therefore, it must be held that Siemens has not proved that claim. 265 It follows that the Court must reject the third part of the second plea, alleging no new repercussions due to the cartel from January 2004. 266 Therefore, the second plea must be rejected in its entirety. III – The third plea, alleging error of law in calculating the amount of the fine 267 Siemens’ third plea is divided into six parts. In the first part, Siemens claims that the basic amount of the fine is disproportionate. The second part of the plea is based on the alleged disproportionate nature of the deterrent multiplier. In the context of the third part, Siemens claims that the Commission based its calculation on an incorrect duration of the infringement. In the fourth part, it claims that the Commission should have granted it a reduction in the amount of the fine pursuant to the Leniency Notice. The sixth part alleges that the ‘Competition’ Directorate General (DG) in fact constrained the College of Commissioners. A – The first part of the third plea, based on the disproportionate nature of the basic amount of the fine 268 In the context of the first part of the third plea, Siemens claims, in essence, that the basic amount of the fine which was imposed on it is disproportionate with regard to the gravity of the infringement and its economic effects, and has not been properly reasoned. According to Siemens, the Commission ought not to have classified the infringement as ‘very serious’ and, accordingly, ought to have set the basic amount of the fine well below EUR 10 million. In that regard, it raises three grounds of complaint alleging, first, that the Commission has not proved the effects of the cartel, second, that the basic amount of the fine is disproportionate with regard to the economic significance of the cartel and, third, that the cartel was wrongly classified. 1. The first ground of complaint, alleging failure to prove the effects of the cartel. a) Arguments of the parties 269 Siemens challenges the Commission’s findings in recitals 477 and 484 of the contested decision, regarding the effects of the cartel, alleging that they are contradictory, imprecise and wrong. According to Siemens, as the Commission acknowledged correctly that the cartel had no quantifiable effect, it could not thereafter refer, when determining the basic amount, to the alleged effects of the cartel. Furthermore, the Commission has submitted no concrete and credible evidence showing that the cartel had an impact on the market and the analysis even demonstrates that there were no such effects. The Commission’s assertion that long‑term participation in a costly system shows that the cartel was profitable for its members and accordingly had an impact was based on mere conjecture and not on objective economic factors. 270 The Commission disputes the arguments put forward by Siemens. b) Findings of the Court 271 At the outset, it must be recalled that, under the first paragraph of Section 1A of the Commission Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3; ‘the Guidelines’), in calculating the fine with regard to the gravity of the infringement, the Commission must take account of the ‘actual impact [of the infringement] on the market, where this can be measured’. 272 First, it must be stated, in that regard, that, contrary to what Siemens alleges, nowhere in the contested decision did the Commission acknowledge that the cartel had had no quantifiable impact. The Commission stated, in recital 477 of the contested decision, that, due to the absence of information on likely prices of GIS projects in the EEA in the absence of the cartel, it was not possible to measure its actual impact on the market and that, accordingly, it had not relied specifically on a particular impact when determining the gravity of the infringement, pursuant to Section 1A of the Guidelines. 273 It was only for the sake of completeness that the Commission indicated that, in the present case, there were concrete and credible indications from which it could reasonably be inferred that the cartel had had an actual impact on the market, given that the cartel was effectively implemented, that it lasted for more than 16 years and that the participants were willing to incur substantial costs to maintain its existence. That finding cannot be understood as contradicting the finding that it was impossible to measure that impact. It is quite clearly intended only to explain that the Commission considered that the cartel had had an impact, even if that impact could not actually be measured and therefore could not be taken into account in determining the gravity of the cartel. 274 Second, contrary to what Siemens claims, it does not follow from recital 484 of the contested decision that the Commission referred to the effects of the cartel when determining the gravity of the infringement. The form of words ‘given the circumstances described in section 8.3.1 above’ (the section under which recital 477 of the contested decision has been inserted) must be understood as referring, inter alia, to the Commission’s finding that the cartel’s effects were not quantifiable. 275 Consequently, it is not necessary to assess whether the existence of the cartel’s impact on the market could be presumed on the basis of the evidence relied on by the Commission. 276 Therefore, the first ground of complaint raised by Siemens must be rejected. 2. The second ground of complaint, based on the disproportionate nature of the basic amount of the fine in relation to the economic significance of the infringement a) Arguments of the parties 277 Siemens claims that the basic amount of the fine is disproportionate in relation to the value of the market for the product in question and in relation to its own share of the market. By setting the basic amount at EUR 45 million, the Commission departed from its earlier decision‑making practice, although it is required to follow a consistent and non‑discriminatory decision‑making practice. According to Siemens, that amount should be much less than EUR 35 million. It therefore calls on the Court to substantially reduce the basic amount of the fine, in the context of its powers of unlimited jurisdiction. 278 The Commission disputes Siemens’ arguments. b) Findings of the Court 279 The fourth and sixth paragraphs of Section 1A of the Guidelines provide that the effective economic capacity of offenders to cause significant damage to other operators must be taken into account, as must the specific weight 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. On the other hand, the Guidelines do not provide that the effective economic capacity of undertakings or the specific weight of their conduct must be assessed in the light of a particular criterion, such as their market share as regards the product in question within the EEA or the common market. Therefore, the Commission is free to apply, in that regard, a criterion which is suitable in the light of the circumstances of each particular case. 280 In the present case, after having found, in recital 479 of the contested decision, that the infringement had to be regarded as ‘very serious’, within the meaning of the Guidelines, the Commission explained, in recitals 480 to 490 of the contested decision, its nuanced treatment of the various undertakings, depending on the world market shares held by them, reflecting their respective economic capacities to cause significant damage to competition. 281 The Commission explained, in recital 481 of the contested decision, inter alia, that, given the global character of the cartel arrangements, the worldwide sales figures give the most appropriate picture of the participating undertakings’ capacity to cause significant damage to other operators in the EEA and their contribution to the effectiveness of the cartel as a whole or, conversely, of the instability which would have affected the cartel if a particular undertaking had not participated in it. In particular, the Commission stressed the fact that the role of the Japanese undertakings would be substantially underestimated if it were to rely on turnover data pertaining only to the EEA, given that, pursuant to the agreements underpinning the cartel, those undertakings to a large extent refrained from activities on the European markets. 282 Lastly, the Commission indicated that, in respect of Siemens and ABB, which each held between 23 and 29% of worldwide turnover of GIS projects, the basic amount of the fine had to be set, on the basis of the value of the market in the EEA, at EUR 45 million. 283 Therefore, in setting the basic amount of the fine, the Commission, without any manifest error of assessment, took account of both the worldwide turnover for GIS projects and the value of the market in the EEA. The first of those criteria served, in accordance with recitals 480 and 481 of the contested decision, served to split the undertakings into a number of categories. In particular, the application of those criteria takes adequate account of the circumstances of the present case, notably of the fact that the cartel participants agreed on the sharing of European and Japanese markets between the respective groups of producers. The level of fine resulting from such an exercise cannot be classified as disproportionate. 284 By contrast, the arguments raised by Siemens carry no conviction. 285 In the first place, the Court must reject Siemens’ argument that, in 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 Røhrindustri and Others v Commission [2005] ECR I‑5425, paragraph 242, the Court held that ‘the profit which [the undertakings] were able to derive from those practices … and the value of the goods concerned’ constitute essentials factors in calculating the amount of the fine. 286 In that regard, it must be stated that that incomplete citation does not properly reflect the content of paragraph 242 of Dansk Røhrindustri and Others v Commission, paragraph 285 above, which cannot moreover be fully understood without its context. Paragraphs 241 to 243 of that judgment state as follows: ‘241 The gravity of the infringements must be assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up … 242 The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the Community … 243 It follows that, on the one hand, it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. On the other hand, it follows that it is important not to confer on one or the other of those figures an importance disproportionate in relation to the other factors and, consequently, that the fixing of an appropriate fine cannot be the result of a simple calculation based on the total turnover. That is particularly the case where the goods concerned account for only a small part of that figure …’ 287 First, it follows from paragraph 241 of that case that the list of factors which are likely to be involved in the assessment of the gravity of an infringement, appearing in paragraph 242 of that case, is neither binding nor exhaustive. Therefore, the Commission is free to take other factors into account, or to attach less weight to one of the factors set out in paragraph 242, or even not take account of it at all, if that seems appropriate to it in the light of the circumstances of a particular case. Such an interpretation is also confirmed by paragraph 243 of that case. Siemens cannot thus rely on paragraph 242 of that case to claim that the basic amount of the fine should be determined in proportion to the size of the market for GIS projects within the EEA. 288 Second, it is clear from the first sentence in paragraph 243 of Dansk Røhrindustri and Others v Commission, paragraph 285 above, that the notion of ‘value of the goods concerned’, used in paragraph 242 of the judgment in that case, must be understood as a measure indicating the share of the worldwide turnover of the undertakings in question which comes from the goods which are the subject‑matter of the cartel and not as referring to the size of the market for those goods within the EEA. Therefore, on that last point, contrary to what Siemens claims, the Court of Justice expresses no view on taking account of the value of the relevant market within the EEA. 289 In the second place, as the Commission correctly states, neither the Guidelines nor Community law in general provide that fines imposed by the Commission must necessarily be proportionate to the value of the market for the goods concerned. By contrast, the Guidelines expressly provide, in relation to the assessment of the gravity of the infringement, that account should be taken of other factors, inter alia, the effective economic capacity of undertakings, the deterrent effect of the fine, the size of the undertakings in question and the specific weight of different undertakings within the cartel, criteria which were applied by the Commission in recitals 480 and 481 of the contested decision. 290 In the third place, it must be recalled that the Commission’s earlier decision‑making practice does not serve as a legal framework for fines in competition matters (LR AF 1998 v Commission, paragraph 87, above 234). In the context of Regulation No 1/2003, the Commission possesses a wide margin of discretion when setting fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules. Therefore, the fact that the Commission may have applied fines of a certain level in the past to certain types of infringement does not mean that it is stopped from raising that level, within the limits set out in Regulation No 1/2003, if that is necessary in order to ensure the implementation of Community competition policy. The proper application of Community competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy (see, by analogy, Dansk Røhrindustri and Others v Commission, paragraph 285 above, paragraph 227, and Groupe Danone v Commission, paragraph 66 above, paragraph 395). 291 It follows that undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation from the fact that the Commission will not exceed the level of fines previously imposed. Consequently, the undertakings in question must take account of the possibility that the Commission may decide at any time to raise the level of the fines in relation to that applied in the past (Dansk Røhrindustri and Others v Commission, paragraph 285 above, paragraphs 228 and 229). 292 It follows that the examples of decisions cited by Siemens cannot – in the light of the principle that penalties must be lawful, enshrined in Article 7(1) of the ECHR – cast doubt on the lawfulness of the basic amount of the fine set in the present case, even if it was, as Siemens claims, higher than amounts set in other cases concerning markets with greater value than that of the market at issue. 293 Therefore, the second ground of complaint raised by Siemens must be rejected. 3. The third ground of complaint, alleging that Siemens was included in the wrong category a) Arguments of the parties 294 First, Siemens claims that, in calculating the amount of the fine to be imposed on Siemens, the Commission ought to have taken account of its turnover in 2001, as it did for Fuji, Hitachi, Melco and Toshiba, and not its turnover for 2003, as it did for ABB, Alstom, Areva and the VA Tech Group. The Commission thus did not apply its own method for calculating fines in a correct, consistent and non‑discriminatory manner. Second, Siemens considers that it ought not to have been classified in the same category as ABB, since its turnover, in 2001 and 2003, was much lower than that of ABB, as certain documents in the case‑file show. Moreover, Siemens points to inconsistencies as regards the value of the world market for GIS projects in 2001 and 2003 and claims that the Commission should have precisely stated each participant’s share in the cartel’s global turnover for those two years, and the turnover which they obtained from GIS projects. 295 The Commission disputes Siemens’ arguments. b) Findings of the Court 296 First, it is necessary to distinguish between two different aspects which are challenged by Siemens. On the one hand, it claims that the Commission ought to have chosen 2001 as its reference year for determining Siemens’ market share. On the other, it claims that, in the light of its allegedly smaller market share than ABB, it should not have been classified in the first category of undertakings with ABB, rather in the second category. 297 As regards, first, the choice of the reference year for establishing the relative weight of undertakings, it must be pointed out that, although the Guidelines provide, in the fourth and fifth paragraphs of Section 1A, for different treatment for undertakings depending on their economic significance, they do not state in relation to which year the relative weight of the undertakings must be established. In that regard, the second paragraph of Section 5(a) of the Guidelines, which provides for account to be taken of the accounting year for the year preceding the year in which the decision is taken, applies only to the determination of turnover for the purpose of compliance with the 10% limit, pursuant to the second subparagraph of Article 23(2) of Regulation No 1/2003, and is not therefore applicable for the purposes of determining the relative weight of undertakings in the cartel. 298 In the present case, 2003, which was chosen by the Commission as the reference year for establishing the relative weight of Siemens and the other European undertakings, was the last complete year of activity by the cartel. Such a choice seems appropriate for determining the relative weight of those undertakings in the cartel. 299 The fact that the Commission chose 2001 as the reference year for establishing the relative weight of the Japanese undertakings was explained, in recital 482 of the contested decision, by specific circumstances peculiar to the Japanese producers, in particular the fact that, on account of the restructuring of their GIS activities in two common undertakings, the Commission did not have separate turnover figures for those undertakings. It is not necessary, for the purposes of the present case, to assess the lawfulness of the treatment of the Japanese producers. Even if that treatment had been unlawful, it would be necessary, in such a situation, to amend the contested decision in relation to the Japanese producers and not in relation to Siemens. 300 Second, regarding Siemens’ allegedly smaller market share vis‑à‑vis ABB, the Commission, as it indicated in recital 483 of the contested decision, relied on figures provided by the undertakings themselves. In its reply of 5 July 2005 to a request for information from the Commission, Siemens indicated, for 2003, a total worldwide turnover in relation to GIS of EUR 658.9 million. In addition, according to its own estimates, the world GIS market had, in 2003, a value of EUR 2 305.5 million, which places it on the same level as that referred to in the Commission’s estimations, which state, in footnote 444 of the contested decision, an amount of EUR 2 200 million for 2003 and, in recital 4 of the contested decision, a range of EUR 1 700 million and 2 300 million for 2001 to 2003. Contrary to Siemens’ contentions, there are no inconsistencies between those figures. 301 By calculating Siemens market share on the basis of figures for 2003 which Siemens itself provided, that is to say a total market value of 2 305.5 million and Siemens’ turnover of 658.9 million, a market share of about 28.59% results for that undertaking in 2003, a figure which places it at the upper limit of the range of 23 to 29% indicated by the Commission for the first group of undertakings. 302 Siemens cannot successfully challenge that figure, calculated on the basis of its own data, by relying on internal documents from Alstom and ABB who refer to different market share for Siemens. 303 In addition, the figures in those documents concern parameters other than those taken into consideration by the Commission. In relation, first, to the document from ABB produced as an annex to the application – leaving aside the fact that it relates to 2002 and not 2003 – it is entitled ‘Substations Competitor Overview’ and therefore concerns only the situation on the market for GIS substations and not the market for GIS projects in general. As regards, second, the document from Alstom appearing in the annex to the application – leaving aside the fact that it relates to 2001 and 2002 – it contains not only a list of undertakings which took part in the cartel but it also refers to other companies (Others), the market share for which is 33.8%. As is apparent from footnote 444 of the contested decision, the Commission made its calculations on the basis only of the turnover obtained by the members of the cartel, since the sales made by other producers did not affect the relative ranking of the undertakings in the present case. 304 Therefore, the criticisms made by Siemens relating to the calculation of its market share by the Commission must be rejected and it is not necessary to ask the Commission to produce the turnover for other undertakings which participated in the cartel, as Siemens requests. 305 It follows that the third ground of complaint raised by Siemens must be rejected as must, accordingly, the first part of the third plea in its entirety. B – The second part of the third plea, based on the disproportionate nature of the deterrent multiplier 1. Arguments of the parties 306 Siemens claims that the deterrent factor of 2.5, applied by the Commission to increase the basic amount of its fine, is excessive and disproportionate in relation to that applied to ABB and constitutes a breach of the principle of equal treatment. Since the Commission chose, in the present case, a method exclusively proportional to the turnover of the undertakings concerned to determine the deterrent multiplier, the increase imposed on Siemens could at most have been four times higher than that imposed on ABB, as Siemens’ total turnover was only four times greater than that of ABB. Accordingly, Siemens calls on the Court to reduce the amount of the fine which was imposed on it. Moreover, it claims there was a lack of reasoning, as the Commission did not explain its method of calculation in the contested decision. 307 In the context of its reply to the written questions of the Court before the hearing, Siemens stated that it was necessary to reduce the deterrent multiplier by 1 as a neutral part of the multiplication. Therefore, the deterrent multiplier applied to Siemens (2.5 – 1 = 1.5) is actually six times greater than that applied to ABB (1.25 – 1 = 0.25) and not two times higher. 308 The Commission disputes that it infringed the method which it chose to determine the respective deterrent multipliers. It states that the chosen deterrent multiplier is directly proportional to the turnover of the various undertakings concerned. In fact, Siemens coefficient is even degressive in relation to that applied to ABB. As regards, lastly, the duty to state reasons, that duty is limited with regard to the deterrent multiplier. In addition, the figures speak for themselves. 309 In reply to a question from the Court at the hearing, the Commission explained that it proceeded in three stages. First, the turnovers of the undertakings concerned were divided by ten. Second, the root of those figures was obtained. Third, the figures obtained were subject to a rounding down, which lead to the deterrent multipliers actually applied to the various undertakings concerned and, in particular, to the 2.5 multiplier applied to Siemens. In addition, the Commission stated it was not required to explain its method in detail in the decision and that, in any event, a multiplier of 2.5 is not unusual with regard to its earlier decision‑making practice. 2. Findings of the Court 310 In the first place, in relation to the ground of complaint based on insufficient reasoning, inasmuch as the Commission did not explain the method for calculating the deterrent multipliers, it should be recalled that the statement of reasons required under Article 253 EC must disclose in a clear and unequivocal fashion the reasoning followed by the institution responsible for the measure, in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. 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 to all the legal rules governing the matter in question (Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63). 311 It should be noted, in that regard, that while it is true that the contested decision does not indicate the method adopted by the Commission in arriving at the precise level of the multipliers, it is apparent from the case‑law that the essential procedural requirement to state reasons is satisfied where the Commission sets out in its decision the factors which enabled it to measure the gravity and duration of the infringement and it is not required to set out a more detailed account or the figures relating to the method of calculating the fine (Case C‑279/98 P Cascades v Commission [2000] ECR I‑9693, paragraphs 39 to 47; Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraphs 463 and 464, and Case T‑15/02 BASF v Commission [2006] ECR II‑497, paragraph 213). 312 In particular, it has been held that that it is desirable, but not a requirement of the obligation to state reasons, that the Commission indicate the figures which influenced the exercise of its discretion when setting the fines, especially in regard to the desired deterrent effect (Cascades v Commission, paragraph 311 above, paragraph 47 and 48, and BASF v Commission, paragraph 311 above, paragraph 214). 313 In the present case, the Commission stated, in recital 491 of the contested decision: ‘… [t]he scale of likely fines also makes it possible to set the fines at a level which ensures that they have sufficient deterrent effect, taking into account the size of each undertaking to be fined and the particular circumstances of the case. It is considered that for the undertakings that have a particularly large turnover compared to other players a multiplier is warranted to ensure sufficient deterrent effect.’ 314 The Commission then indicated, for each of the undertakings concerned, worldwide turnover in 2005 and the multiplier applied, information which it reproduced in a table. ABB, with a worldwide turnover of EUR 18 038 million in 2005 had a multiplier of 1.25 applied. Melco, with a worldwide turnover of EUR 26 336 million in 2005 had a multiplier of 1.5 applied. Toshiba, with a worldwide turnover of EUR 46 353 million in 2005 had a multiplier of 2 applied. Hitachi, with a worldwide turnover of EUR 69 161 million in 2005 had a multiplier of 2.5 applied. Lastly, Siemens, with a worldwide turnover of EUR 75 445 million in 2005 had a multiplier of 2.5 applied. 315 It is thus apparent from recital 491 of the contested decision that the Commission took the view that an increase to the starting amounts set for Siemens was required in order to ensure sufficient deterrent effect, in the light of its global resources. It is also apparent that the Commission relied, in that respect, on the worldwide turnover figure in 2005. 316 In that regard, it is necessary to bear in mind the settled case‑law according to which worldwide turnover gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 121; Baustahlgewebe v Commission, paragraph 43 above, paragraph 139, and BASF v Commission, paragraph 311 above, paragraph 212). 317 It is thus apparent that, in the contested decision, the Commission set out, to the requisite legal standard, the elements of law taken into account for increasing the basic amount of the fines in order that they have a deterrent effect, thus allowing Siemens to know the justification for that increase to the basic amount of its fine and to exercise its rights, and placing the court in a position to carry out its review. On the other hand, in the light of the case‑law cited in paragraph 312 above, the Commission was not required, in the contested decision, to provide the figure‑based explanations which it gave at the hearing, as they do not form part of the subject‑matter of the requirements arising from the duty to state reasons. 318 Therefore, the ground of complaint alleging insufficient reasoning must be rejected. 319 In the second place, Siemens’ allegation that the Commission, when calculating the deterrent multipliers, did not faithfully follow its own method based on ABB’s turnover and the deterrent multiplier as the ‘starting point’, must be rejected. That argument is based on confusing the deterrent multiplier, on the one hand, and the increase in the basic amount of the fine as a result of the application of that multiplier, on the other. While the Commission confirmed that it had calculated the deterrent multipliers in a manner proportionate to the turnover of the undertakings concerned, it did not assert, in the contested decision or in its written pleadings before the Court, that the application of those multipliers should result in an increase in the amount of the fine which would, in turn, be proportionate to turnover. On the contrary, it automatically follows from the figures set out by the Commission in recital 491 of the contested decision that the rate of increase of the fine resulting from the application of the deterrent multiplier is progressive in relation to the turnover of the undertakings concerned. 320 As the Commission points out, the proportionality of the deterrent multipliers can easily be ascertained by drawing a graph of the various multipliers applied in relation to the respective turnovers of the undertakings concerned. The graph which results from such an exercise is straight and therefore represents a proportionate relationship for all the undertakings concerned – except for Siemens in respect of which the relationship is degressive in so far as the multiplier applied to it was the same as that applied to Hitachi, even though its worldwide turnover in 2005 was EUR 6 billion higher than that of Hitachi. Such a proportionate relationship suffices for the requirements laid down by the Court in Degussa v Commission, paragraph 260 above (paragraph 338), in which it stated that the classification of undertakings by category, for the purposes of determining the deterrent multiplier in accordance with the principle of equal treatment, must be objectively justified. It must also be recalled, in that regard, that, in accordance with the case‑law cited in paragraph 316 above, the worldwide turnover of undertakings constitutes an indicator of their size and economic power. 321 Therefore, there can be no question of the Commission having inconsistently applied its own method of calculation to Siemens’ detriment. Accordingly, the ground of complaint alleging that the deterrent multiplier is excessive, as a result of such inconsistent application, must be rejected. 322 For the same reason, Siemens cannot properly rely on Tokai Carbon and Others v Commission, paragraph 86 above (paragraphs 245 to 247), regarding the calculation of the deterrent multipliers. In those paragraphs of the judgment in that case, the Court, in essence, criticised the Commission for not having logically and consistently followed, in respect of all the undertakings concerned, the method which it had chosen for determining the deterrent multiplier. As has just been explained, such criticism cannot be made of the Commission in the present case. 323 In the third place, it must be pointed out that, while, in contrast to the deterrent multipliers, the increase to the basic amount of the fines resulting from applying those multipliers is not proportionate, but progressive, that circumstance automatically results from applying the method chosen by the Commission. The Commission thus clearly considered that such a progressive increase in relation to turnover was necessary to ensure that the fines had sufficient deterrent effect with regard to those undertakings concerned which had a particularly large turnover. The Court cannot substitute its own assessment of whether the deterrent multiplier applied was sufficient for that assessment of the Commission, all the more so in the absence of any factual evidence showing that the system applied by the Commission led to results in excess of that required to ensure the fines had sufficient deterrent effect. 324 Accordingly, the second part of the third plea must be rejected. C – The third part of the third plea, alleging error in the determination of the duration of the infringement 325 Siemens claims that, since the infringement is time barred in relation to the period prior to April 1999, the Commission based its increase to the basic amount of the fine on an incorrect duration. It takes the view that the Commission could not penalise it for an infringement of medium duration, which justifies, under the Guidelines, an increase of 20% in relation to the basic amount of the fine. 326 The Commission disputes Siemens’ arguments. 327 In that regard, suffice it to recall, since the plea that the action is time barred raised by Siemens, in relation to the first phase of the infringement, must be rejected (see paragraphs 236 to 255 above), this part of the third plea, also based on the plea that the action is time barred, must also be rejected. D – The fourth part of the third plea, alleging that Siemens was wrongly classified as leader of the cartel 328 In the context of the fourth part of the third plea, based on an alleged erroneous classification of leader which was applied to it, Siemens raises three grounds of complaint, based on, first, the fact that ABB adopted the role of leader in the cartel, second, the fact that it did not adopt that role and, third, the excessive nature of the increase to the basic amount of the fine which was imposed on it on account of that role of leader in the cartel. It claims, in that regard, that the Commission breached the duty to state reasons and the principles of equal treatment and proportionality of fines. 329 It is appropriate to examine the first two grounds of complaint together before examining the third ground of complaint 1. The first and second grounds of complaint, alleging that ABB and not Siemens adopted the role of leader in the cartel a) Arguments of the parties 330 Siemens is of the opinion that it has shown that it did not play the role of leader in the cartel. In that regard, in the first place, it recalls that the facts for which it is criticised relating to the period from 1988 to 1999 are time barred and that, therefore, that period cannot be taken into account as an aggravating circumstance when calculating the amount of the fine. In the second place, Siemens claims that the Commission incorrectly interpreted the notion of leader and misunderstood the purely administrative nature of the secretariat services within the cartel. In the third place, according to Siemens, the Commission did not take account of the fact that, during the period from 2002 to 2004, it did not adopt the role of secretariat. 331 Siemens alleges, in addition, that the Commission misunderstood the role of instigator and leader played by ABB during the period from 1988 to 1999, which is inconsistent with its characterisation as leader during the same period. According to it, the role played by ABB as instigator of, director of and driving force behind the cartel was much more significant than the role of European secretary to the cartel adopted by it during the first phase of its participation in the cartel, as the Commission overestimated that latter role. Siemens considers that the unequal treatment can be resolved only by annulling the increase to the basic amount of the fine imposed on it. 332 The Commission disputes Siemens’ arguments. b) Findings of the Court The role of leader in the cartel 333 In recital 514 of the contested decision, the Commission found, inter alia that Siemens was a ‘leader’ in the infringement, within the meaning of the third indent of Section 2 of the Guidelines, on account of the fact that it had had the role of European secretary to the cartel. The Commission considered, in recitals 514 to 522 of the contested decision, that the basic amount of the fine to be imposed on Siemens had to increased by 50%, which raised that amount to EUR 396 562 000. 334 Siemens’ argument that the Commission wrongly classified it as leader for the second phase of its participation in the cartel, from 2002 to 2004, must be rejected as having no factual basis. While it is true that in recitals 511 to 514 of the contested decision, in which the role of leader is assessed in the context of examining aggravating circumstances, contain no details on the periods in respect of which the Commission classified Siemens and Alstom as leaders, recital 147 of the contested decision expressly states that ‘the [role of European secretary] was taken over by Siemens until September 1999. Alstom acted as [European secretary] during the period from 1999-2004’. In those circumstances, it cannot be held that the Commission classified Siemens as a leader for the period from 2002 to 2004. 335 Next, as regards the allegation that the facts relating to the period from 1988 to 1999 are time barred, reference is made to the findings in paragraphs 236 to 255 above, according to which the first phase of the infringement is not time barred as regards Siemens’ participation. 336 Lastly, it should be borne in mind that, according to settled case‑law, where an infringement has been committed by several undertakings, it is appropriate, in setting 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; Aalborg Portland and Others v Commission, paragraph 48 above, paragraph 92; Groupe Danone v Commission, paragraph 66 above, paragraph 277, and BASF v Commission, paragraph 311 above, paragraph 280). So doing implies, in particular, establishing their respective roles in the infringement during the period of their participation (Commission v Anic Partecipazioni, paragraph 43 above, paragraph 150; Groupe Danone v Commission, paragraph 66 above, paragraph 277, and BASF v Commission, paragraph 311 above, paragraph 280). In that regard, the non‑exhaustive list of circumstances which justify increasing the basic amount of the fine, set out in Section 2 of the Guidelines, include, inter alia, in the third indent, the ‘role of leader in, or instigator of the infringement’ played by the undertaking. 337 According to the case‑law, in order to be classified as a ‘leader’ in a cartel, an undertaking must have been a significant driving force for the cartel (BASF v Commission, paragraph 311 above, paragraph 374, and Case T‑410/03 Hoechst v Commission [2008] ECR II‑881, paragraph 423) and have borne individual and specific liability for the operation of the cartel (see, to that effect, BASF v Commission, paragraph 311 above, paragraph 300). That factor must be assessed in the light of the overall context of the case (see, to that effect, BASF v Commission, paragraph 311 above, paragraphs 299 and 373). The classification as ‘leader’ has been established when the undertaking carried out the duties of coordinator within the cartel and, in particular, organised and staffed the secretariat responsible for the actual implementation of the cartel (Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II‑2597, ‘ADM’, paragraphs 246 and 247), or when that undertaking played a central role in the actual operation of the cartel, for example by organising numerous meetings, by collecting and distributing information within the cartel, by taking responsibility to represent certain members within the cartel or most often formulating 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 [1983] ECR 3369, paragraphs 57 and 58, and BASF v Commission, paragraph 311 above, paragraphs 404, 439 and 461). 338 In the present case, as is apparent from recitals 511 to 513 of the contested decision, the Commission took into account the fact that the European secretariat to the cartel existed throughout the duration of the cartel and that it remained stable in that time, despite the numerous organisational changes within the cartel. That secretariat had many tasks. With reference to recitals 121 to 123, 131, 132, 142, 147 to 149, 157 to 161, 173 and 185 of the contested decision, the Commission stated that the European secretariat to the cartel was the pivot for communication between the European undertakings which were members of the cartel and between them and the Japanese secretariat, it convened and chaired meetings and was responsible for accounting for the quotas. Siemens did not challenge those facts before the Court. The Commission considered that it was clear from the content of the GQ Agreement and the EQ Agreement, and from the actual functioning of the cartel, that the role of European secretary to the cartel was necessary. By taking the initiative and devoting considerable resources to the cartel, that secretary rendered a considerable service to that cartel and contributed in a special way to its proper functioning. 339 Siemens did not dispute that it assumed the duties of the European secretary to the cartel for the first phase of its participation in the cartel from 1988 to 1999 either during the administrative procedure before the Commission, or before the Court. The fact that it fulfilled that role is, in addition, apparent from the testimony of its former employees Mr E. and Mr Tr. (see, in that regard, paragraph 222 above). However, it claims that, in the present case, that European secretary could not be classified as a leader, since its role was limited to communication duties and did not imply the taking of initiative or a state of mind especially contrary to the competition rules and since it had no decision‑making power. 340 In that regard, it must be held that the tasks carried out by the European secretary to the cartel conferred on it the role of ringleader in the coordination of the cartel and, on any reading, in the actual functioning of that cartel. The Commission was entitled to find, in the contested decision, that that European secretary was the point of contact between members of the cartel and that it played a crucial role in its actual functioning inasmuch as it facilitated the exchange of information within it, and it bundled, collated and exchanged with the other members of the cartel information essential for its functioning. That concerned, in particular, information on GIS projects, as the secretary organised and staffed the job meetings secretariat. 341 That crucial role is not undermined by the existence of the European committee group, which also played an important role in the cartel. In addition, it is undisputed that Siemens was also a permanent member of that committee. Therefore, its duties as European secretary to the cartel were in addition to its role as permanent member of the committee and distinguish it from other permanent members of the committee, that is to say, ABB and Alstom. 342 Furthermore, the Commission was entitled to find, in recitals 147 and 513 of the contested decision, that holding the secretariat to the cartel was a significant responsibility implying substantial resources, be that in terms of time or staff made available. Without the central coordination and organisation ensured by the European secretary to the cartel, that cartel would undoubtedly not have been able, in the light of its complexity, to function as effectively. In addition, taking account of the fact that it is undisputed that Siemens carried out those tasks in a stable manner, from the beginning of the cartel in 1988 until the interruption in its participation in 1999, the Commission was entitled to find that that undertaking was, in the present case, a driving force behind the cartel and, as a result had the ‘role of leader in the infringement’, within the meaning of the third indent of Section 2 of the Guidelines. 343 Siemens’ arguments relating to ABB’s role of leader are not such as to cast doubt on that finding. 344 As regards, first, Siemens’ argument that ABB’s role of leader was inconsistent with the classification of it as leader, the Court must reject the premiss underlying that argument, according to which the role of leader in a cartel can be carried out only by one undertaking at a time. 345 As is apparent from the case‑law, it is entirely possible that two or more undertakings be attributed the role of leader, in particular in the context of a cartel implicating a high number of participants, like the cartel in GIS projects was, at least in the first phase of its operation (see, to that effect, BASF v Commission, paragraph 311 above, paragraphs 439 and 440; Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others v Commission [2007] ECR II‑947, paragraph 561, and the case‑law cited). 346 Therefore, even if ABB should be classified as a leader of the cartel in GIS projects, that does not mean that Siemens cannot also be classified as leader. The alleged unequal treatment of Siemens with regard to ABB 347 Next, it is necessary to examine Siemens’ argument that, by attributing the role of leader to it and by not attributing that role to ABB, the Commission breached the principle of equal treatment, since ABB played the role of instigator and leader. That argument must be rejected for two reasons. 348 On the one hand, as regards ABB’s alleged role as instigator, it must be borne in mind that, as is clear from the wording of the third indent of Section 2 of the Guidelines, it is necessary to distinguish between the concept of leader in and that of instigator of an infringement. Whereas instigation is concerned with the establishment or enlargement of a cartel, leadership is concerned with its operation (BASF v Commission, paragraph 311 above, paragraph 316). Therefore, the leader in the infringement and the instigator of that infringement are not in comparable situations, with the result that, even if the Commission, wrongly, did not classify ABB as instigator of the cartel, the fact that that company was treated differently than Siemens does not constitute a breach of the principle of equal treatment. 349 On the other hand, it has neither been established nor even alleged that ABB assumed the duties of European secretary to the cartel or even that it carried out alone, in a stable manner and over a long period, the duties normally conferred on that European secretary. Moreover, while it is generally acknowledged, even by the Commission, that ABB played a ‘significant role’ in the cartel, it has not been shown that that role was comparable, from the point of view of the functioning of the cartel, to that played by Siemens and Alstom or Areva as European secretaries to the cartel. 350 Siemens’ allegations in that respect are not such as to call that finding into question. 351 First, Siemens’ reference to the role played by ABB in the pre‑insulated pipe cartel at the end of the eighties is out of place in the present case, aside from the fact, correctly found in the contested decision, that ABB has to be classified as a repeat offender in relation to cartels. 352 Second, the evidence in the case‑file relied on by Siemens is not such as to substantiate its argument that ABB should be classified as leader of the cartel. 353 Contrary to what Siemens claims, the fact that, within ABB, the decision to participate in the cartel may have been taken at the highest level, even if established, in no way confirms that ABB was a driving force in the cartel. The same goes for the fact that two of ABB’s employees were, according to the information from Mr M., successively ‘European speaker’. That fact does not confer on that undertaking a leading position in the cartel. In that regard, it must be stated that the nature of the task of ‘European speaker’ is not apparent from the evidence on the case‑file or, in particular, from Siemens’ written pleadings. Further, the fact that neither the GQ Agreement nor the EQ Agreement refer to that role allows it to be assumed that the duties of ‘European speaker’ were not hugely significant in the functioning of the cartel. 354 Similarly, while it is true that footnote 153 of the contested decision refers, as Siemens points out, to a statement from Areva that ABB chaired the management‑level meetings, the insertion of that footnote in recital 147 of the contested decision and the wording of Areva’s statement make it apparent that that statement relates only to the period from 2002 to 2004. The Commission does not allege that Siemens held the secretariat during that relatively short period; it was Alstom or Areva which carried out that role during that period. Siemens in no way explains how the fact, if assumed proved, that ABB may have chaired management‑level meetings for barely two years, during a period in which the secretariat was held by Alstom or Areva, makes ABB’s role comparable to Siemens role for the period of over 11 years during which it held the post of European secretary to the cartel. 355 The fact, as stated by Siemens, that ABB and Alstom had decided, in 2000, to exclude the VA Tech undertaking from the cartel, by way of a ‘goodbye party’, does not establish a leading role for ABB. Given that, following the merger which took place on the relevant market, there were only three European undertakings in the cartel after Siemens interrupted its participation, one cannot speak of a role of leader, when two of those undertakings gang up on against the third. 356 Lastly, Siemens’ allegation that ABB played a decisive role in the organisation and implementation of retaliatory measures against Siemens after its departure is not substantiated by any evidence. Neither recital 169 of the contested decision, nor Mr M.’s statement, which is cited in that recital, contain the slightest indication that ABB played a decisive role in the organisation or implementation of those retaliatory measures. 357 Therefore, Siemens has not established that ABB was in a situation comparable to its own, as regards the classification as leader, with the result that the different treatment applied to those undertakings is justified. 358 In any event, even if the Commission mistakenly did not classify ABB as leader of the cartel, despite the significant role which ABB played in the cartel, such an unlawful act, in favour of a third party, would not justify upholding the plea for annulment raised by Siemens. According to settled case‑law, respect for the principle of equal treatment or non‑discrimination must be reconciled with the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party (see, to that effect, Case 188/83 Witte v Parliament [1984] ECR 3465, paragraph 15; SCA Holding v Commission, paragraph 184 above, paragraph 160; Case T‑347/94 Mayr‑Melnhof v Commission [1998] ECR II‑1751, paragraph 334, and LR AF 1998 v Commission, paragraph 87 above, paragraph 367). 359 As was explained in paragraphs 339 to 342 above, the Commission was correct to find that Siemens had a leading role in the cartel. Therefore, since Siemens argument is that its fine should not be unlawfully increased, it cannot be upheld (see, to that effect, Mayr‑Melnhof v Commission, paragraph 358 above, paragraph 334, and SCA Holding v Commission, paragraph 184 above, paragraph 160). 360 Accordingly, Siemens’ grounds of complaint alleging that it did not play the role of leader in the cartel, and that ABB should be classified as instigator or leader of the cartel, must be rejected. 2. The third ground of complaint, alleging that the increase in the basic amount of the fine imposed on Siemens on account of its role of leader in the cartel was excessive a) Arguments of the parties 361 Siemens claims, in the alternative, that, even if the temporary carrying out of the duties of secretariat were to justify it being classified as a leader, the increase of 50% applied by the Commission is excessive and constitutes a breach of the principles of equal treatment and proportionality. Relying on the Commission’s decision‑making practice, Siemens claims that an increase of 50% to the basic amount of the fine presupposes the existence of other aggravating circumstances on top of the mere fact that the undertaking in question, carried out the duties of secretariat. It concludes that the Court should substantially reduce the increase which was applied to it, in the context of the Court’s powers of unlimited jurisdiction. 362 The Commission disputes Siemens’ arguments. b) Findings of the Court 363 First, it must be stated that the argument that an increase of 50% is higher than that generally applied in other Commission decisions is not capable of proving an infringement of the principle of proportionality (Bolloré and Others v Commission, paragraph 345 above, paragraph 579; see also, to that effect, ADM, paragraph 337 above, paragraph 248). 364 In this respect, it is sufficient to recall that, according to settled case‑law, when determining the amount of each fine, the Commission has a discretion and is not required to apply any particular arithmetical formula (Case T‑150/89 Martinelli v Commission [1995] ECR II-1165, paragraph 59; Case T‑352/94 Mo och Domsjö v Commission [1998] ECR II‑1989, paragraph 268, and Bolloré and Others v Commission, paragraph 345 above, paragraph 580). Therefore, Siemens cannot derive an argument from the increases applied by the Commission in other cases in order to found a ground of complaint alleging breach of the principle of proportionality. 365 Second, in relation to Siemens’ argument that the increase of 50% in the fine on account of its role of leader in the cartel also breaches the principle of equal treatment, in so far as ABB was a driving force in the cartel, it must be recalled that, as has been stated in paragraphs 352 to 357 above, Siemens has not succeeded in showing that, on the basis of the evidence on the case‑file, ABB’s role should be classified as the same as its own. In particular, the alleged driving force which ABB represented in the cartel has not been supported by any evidence. Therefore, as ABB and Siemens were not in the same position, the Commission was not required to treat them the same way. 366 In addition, even assuming, as Siemens alleges, that the driving force in the cartel by ABB required the role of that undertaking to be classified as equivalent to that of Siemens and the Commission wrongly failed to do so, such an unlawful act in favour of a third party would not justify upholding the plea for annulment raised by Siemens. As has been recalled in paragraph 358 above, the principle of equal treatment or non‑discrimination must be reconciled with the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party. 367 Third, as regards whether the increase in respect of Siemens’ leading role was proportionate, it is apparent from the case‑law that the fact that an undertaking acted as ringleader of a cartel means that it must bear special responsibility in relation to the other undertakings (see, to that effect, IAZ International Belgium and Others v Commission, paragraph 337 above, paragraphs 57 and 58; Case C‑298/98 P Finnboard v Commission [2000] ECR I‑10157, paragraph 45, and Mayr‑Melnhof v Commission, paragraph 358 above, paragraph 291). 368 In the present case, in the light of the importance of the duties assumed by Siemens within the cartel, in its role as European secretary to the cartel as described in paragraphs 338, 340 and 342 above, an increase of 50% cannot be described as disproportionate. 369 Therefore, the third ground of complaint must be rejected as must accordingly, the fourth part of the third plea. E – The fifth part of the third plea, alleging manifest error of assessment as regards the failure to reduce the amount of the fine pursuant to the Leniency Notice 1. Arguments of the parties 370 Siemens claims that the Commission was wrong not to grant it a reduction in the amount of the fine pursuant to the Leniency Notice. It claims that it adduced evidence of significant added value and, in that respect, refers to the communication of a series of cartel meetings, a reconstructed file, a lawyer’s letter on the functioning of the cartel between 2002 and 2004, the result of Siemens’ internal inspection in 2005 and the testimony of its former employees Mr Tr., Mr E. and Mr Sch. 371 The Commission disputes Siemens’ arguments. 2. Findings of the Court 372 In accordance with Point 21 of the Leniency Notice, in order to qualify for a reduction in the fine pursuant to that notice, an undertaking must provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission's possession. 373 Under Point 22 of the Leniency Notice, the concept of ‘added value’ refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Commission's ability to prove the facts in question. 374 According to the case‑law, the reduction in the amount of fines in the event of cooperation from undertakings which have participated in infringements of Community competition law is based on the consideration that such cooperation facilitates the Commission’s task of establishing an infringement and, where relevant, of bringing it to an end (Dansk Røhrindustri and Others v Commission, paragraph 285 above, paragraph 399; Case T‑311/94 BPB de Eendracht v Commission [1998] ECR II‑1129, paragraph 325; Case T‑338/94 Finnboard v Commission [1998] ECR II‑1617, paragraph 363, and Mayr-Melnhof v Commission, paragraph 358 above, paragraph 330). 375 As mentioned in Point 29 of the Leniency Notice, that notice has created legitimate expectations on which undertakings may rely when disclosing the existence of a cartel to the Commission. In view of the legitimate expectation which undertakings intending to cooperate with the Commission are able to derive from the notice, the Commission must therefore adhere to the notice when, for the purpose of determining the fine to be imposed on Siemens, it assesses Siemens’ cooperation (see, by analogy, Case T‑26/02 Daiichi Pharmaceutical v Commission [2006] ECR II‑713, paragraph 147, and the case‑law cited). 376 Within the limits laid down by the Leniency Notice, the Commission has however a wide discretion in assessing whether or not the evidence provided by an undertaking brings added value within the meaning of Point 22 of the Leniency Notice and whether a reduction should be granted to that undertaking under that notice (see, by analogy, Dansk Røhrindustri and Others v Commission , paragraph 285 above, paragraphs 393 and 394, and Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraph 532). That assessment is subject to a limited judicial supervision. 377 In the present case, it must thus be ascertained whether the Commission committed a manifest error of assessment, by taking the view that Siemens’ statements, referred to in recitals 533 to 536 of the contested decision, did not bring significant added value. 378 In relation to those statements, it must be observed, as a preliminary point, that the information provided by Siemens between 28 May 2004, which was the date of its application pursuant to the Leniency Notice, and the statement of objections of the end of April 2006 concerned only the second phase of its participation in the cartel, that is to say, the period from 2002 to 2004. By contrast, it remained silent in relation to its participation in the cartel between 1988 and 1999, until the statement of objections. 379 In addition, it must be pointed out that, in all its communications pursuant to its cooperation with the Commission, Siemens always disputed that the agreements in which it had participated concerned GIS projects within the EEA or had effects within the EEA. Rather than a spirit of sincere cooperation, those communications thus make it seem as if there was an attempt to conceal, in so far as possible, the true content of the agreements, as proved by the Commission in the contested decision. 380 However, the condition of cooperation laid down in Point 11 of the Leniency Notice applies only to applications for immunity from fines and not to applications for leniency, as is apparent from Point 20 of that notice. Therefore, the clear lack of sincerity in Siemens’ statements does not prevent it being granted a reduction in the fine to the extent that, in accordance with Point 21 of that notice, it provided evidence with significant added value. 381 As regards the alleged added value of the information provided by Siemens, first, it asserts that, in its letter of 28 May 2004, it described ‘a whole series of cartel meetings in more detail.’ 382 In that regard, it must be stated that, in its application pursuant to the Leniency Notice of 28 May 2004, Siemens acknowledged that its employees, Mr R., Mr S. and Mr Ze., had had, from the beginning of 2002, contacts with ABB, Alstom or Areva and the VA Tech Group and it produced a first list of management‑level meetings and operational‑level meetings. However, it stated that the purpose of those contacts was ‘benchmarking’ – that is to say, the exchange of best practice for the purposes of increasing the competitiveness of undertakings in the sector – and to discuss the possibility of cooperating in relation to common supply or exchange of preliminary products. Furthermore, Siemens also accepted that a very limited number of actual projects had been discussed at those meetings. None the less, it indicated that they were only international projects with no link whatsoever with the EEA. Further, those projects were not the subject of agreement on price; rather a call was made for ‘reasonable’ conduct from the producers in relation to the level of their bids. 383 Those details cannot be described as ‘evidence of the alleged infringement’, within the meaning of Point 21 of the Leniency Notice, since they refer only to entirely inoffensive contacts between the European GIS producers. Furthermore, as the Commission stated in recital 534 of the contested decision, without being challenged by Siemens, it was already aware of those meetings and their participants. 384 Second, Siemens claims that it decoded data and submitted it to the Commission. 385 In that regard, with its letter of 23 July 2004, Siemens produced various documents. In the first place, it produced a list of GIS projects for which offers were to be submitted in 2002 and 2003, located exclusively outside the EEA, with indications of the producers to which they had been allocated. That list was reconstructed from a file seized during the Commission’s inspections at its premises. In the second place, it produced a list of communications which had been made, between 22 April and 22 May 2004, from the SIM card of its employee, Mr Ze. In the third place, it produced numerous documents discovered on Mr Ze.’s laptop and referring to the possibilities for bilateral cooperation envisaged with other GIS producers. 386 As regards the list of projects, it contains no GIS project in Europe and is therefore not capable of providing details on the effects of the cartel within the EEA. In relation to the list of telephone communications, it contains only the date, the time and duration of outgoing calls and the number called. Moreover, Siemens has not indicated in what way that list could have assisted the Commission in establishing the existence of a cartel, all the more so since it concerns a period (between April and May 2004) during which, according to Siemens, the cartel had already ceased to exist. Lastly, the documents from Mr Ze.’s laptop refer only to projects for inoffensive cooperation, and having no link with the cartel at issue, such as benchmarking activities and the possible creation of consortiums for certain projects. 387 Therefore, none of the documents can be described as evidence supporting the Commission’s capacity to establish the existence of the cartel. 388 Third, Siemens claims that it sent a document drawn up in the name of its former employees who participated in the cartel, which described ‘in a detailed manner, how the cartel functioned’ and listed ‘in minute detail the agreements on various [GIS] projects in the EEA.’ According to Siemens, that document constitutes a ‘specific document relating to the agreements concluded between 2002 and 2004’. 389 In that regard, it must be observed that, on 7 December 2004, Siemens actually sent to the Commission a document dated 25 November 2004, drawn up by the legal advisers of unidentified former Siemens’ employees. Siemens presumes that they are Mr R., Mr S and/or Mr Z., who, according to the Commission, represented Siemens during the second phase of its participation in the cartel. In that document, the statements of those employees are summarised and, inter alia, it is indicated that, during the meetings which took place from October 2002, with ABB, Alstom and the VA Tech Group, GIS projects in the common market had been discussed with a view to coordinating conduct, concluding agreements and fixing prices, that Alstom was charged with the secretariat duties and that communication was made by telephone, facsimile and coded emails. In the letter which it forwarded on 7 December 2004, Siemens stated that in the light of the content of that document, its earlier statements were possibly incomplete or even wrong. It also stated, contrary to what it claims before the Court, that ‘the information forwarded [was] not very detailed.’ 390 While those details have some probative value with regard to the infringement – the Commission cited the document of 25 November 2004 in footnote 153 of the contested decision as confirming the fact that Alstom or Areva had held the European secretariat following the departure of Siemens in 1999 – they only confirm the evidence which the Commission already held. Areva had itself acknowledged, in a document sent to the Commission by facsimile on 25 May 2004, that it had held the secretariat. Therefore, the information submitted by Siemens cannot be described as bringing significant added value with respect to the evidence already in the Commission’s possession. 391 Fourth, Siemens claims that it analysed the competition situation on the principal European Union markets and submitted its conclusions to the Commission and that no other undertaking had provided such detailed information on the background to the market and competition. 392 In that regard, it must be observed that, on 4 July 2005, Siemens sent a written summary of an internal inspection to the Commission. It stated that, in the course of that inspection, it had undertaken, inter alia, a review of all the GIS projects which it carried out in Europe between January 2000 and April 2004, from the perspective of complying with the legal provisions relating to cartels. According to it, despite its considerable efforts, that inspection had not led to concrete results which would be capable of confirming the objections set out by the Commission, and did not allow findings of irregularities which would have led to the conclusion that there were agreements between competitors in relation to specific projects within the European Union. 393 Therefore, it is not possible to attach probative value to the information forwarded by Siemens on 4 July 2005. In particular, it does not appear that the alleged ‘detailed information on the background to the market and competition’ supported the Commission’s capacity to establish the infringement found in the contested decision and therefore have significant added value. 394 Fifth, Siemens claims that it forwarded testimony from its former employees, Mr Tr., Mr E. and Mr Sch., to the Commission, which contained detailed information on the conclusion of the GQ Agreement and the role played by ABB within the cartel. 395 In that regard, it must be pointed out that, annexed to a letter of 7 August 2006, Siemens sent to the Commission the record of testimony from its former employees, Mr Tr., Mr E. and Mr. Sch. In that letter, Siemens’ legal representative summarised the content of that testimony. It was, inter alia, indicated that it was BBC, later ABB, which took the initiative for the GQ Agreement and which was the driving force behind preliminary discussions among European producers, that the GQ Agreement covered Middle Eastern markets and did not concern European projects, that Siemens distanced itself from the GQ Agreement at the end of 1998 or, at the latest, at the start of 1999, and that the cartel in which Siemens had participated between 2002 and 2004 had no link with the earlier cartel based on the GQ Agreement. 396 It must also be observed that that information was sent more than three months after the statement of objections sent at the end of April 2006, in which the Commission had already set out evidence relating to the alleged infringement of GIS producers. Furthermore, the only new element which arises from those testimonies is the confirmation that ABB was the instigator and the driving force behind the conclusion of the GQ Agreement. As has been stated in paragraphs 350 to 357 above, that assertion is not supported by other evidence on the case‑file. Therefore, the testimony of Mr Tr., Mr E. and Mr Sch. cannot be classified as evidence which supported the Commission’s capacity to establish the infringement found in the contested decision and which brought significant added value. 397 It follows from the foregoing that the Commission did not infringe the Leniency Notice by refusing to grant Siemens a reduction in the fine imposed on it. Accordingly, the fifth part of the third plea must be rejected. F – The sixth part of the third plea, alleging that DG ‘Competition’ in fact constrained the College of Commissioners 1. Arguments of the parties 398 Siemens criticises the fact that the evening before the College of Commissioners’ decision on the present matter certain media outlets stated that a huge fine would be imposed on undertakings which had participated in the alleged cartel, indicating precisely the amount of the fines imposed on the various undertakings concerned. It considers that such conduct constitutes a breach of the fundamental principle of Community law under which the College of Commissioners adopts its decisions of its own authority and independently. 399 The Commission expresses regret regarding the incident referred to by Siemens. It points out, however, that the publication of the figures was not deliberate or even something of which it was aware. It carried out, without success, an internal review of that matter in order to detect the leak and, subsequently, amend its decision‑making practice, so as to avoid such an incident occurring again. As regards the legal assessment on that point, the Commission considers that premature publication of that kind is not such as to restrict the Commissioners’ independence and that that incident does not undermine the lawfulness of the contested decision. 2. Findings of the Court 400 It should be recalled that Article 287 EC obliges the members, officials and agents of the institutions of the Community ‘not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their costs components.’ While that provision refers especially to information gathered on undertakings, the words ‘in particular’ show that it is a general principle which also applies to other confidential information (Case 145/83 Adams v Commission [1985] ECR 3539, paragraph 34; see also, to that effect, Case T‑353/94 Postbank v Commission [1996] ECR II‑921, paragraph 86). 401 In the present case, it is apparent from the case‑file that, before adopting the contested decision, essential components of the draft decision submitted to the College of Commissioners for definitive approval were leaked to a press agency. On 23 January 2007, the evening before the contested decision was adopted, around 19.00 hrs, that agency published precise details regarding the total amount of the fines and the individual amounts of the fines on Siemens, Melco and Alstom, as well as details that ABB had benefited from immunity from fines as the Commission’s informant. The Commission, while confirming that it had been unable to detect the author of that leak to the press, did not dispute that the leak occurred within its services. 402 It is settled case-law that an irregularity of the type found above may lead to annulment of the decision in question if it is established that the content of that decision would have differed if that irregularity had not occurred (Suiker Unie and Others v Commission, paragraph 336 above, paragraph 91; Dunlop Slazenger v Commission, paragraph 174 above, paragraph 29). However, in the present case the applicant has not adduced such evidence. There are no grounds for supposing that if the information at issue had not been disclosed, the College of Commissioners would have altered the proposed amount of the fine or the content of the draft decision. In particular, there is no evidence indicating that the College of Commissioners as a whole or certain Commissioners felt bound or took the view that they could not depart from those aspects of the draft decision which were leaked to the press. 403 Accordingly, the sixth part of the third plea must also be rejected. The third plea must therefore be rejected in its entirety. 404 As the three pleas raised by Siemens have been rejected, the application must be dismissed. Costs 405 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 Siemens 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 (Second Chamber) hereby: 1. Dismisses the application; 2. Orders Siemens to pay the costs. Pelikánová Jürimäe Soldevila Fragoso Delivered in open court in Luxembourg on 3 March 2011 [Signatures] Table of contents Background to the dispute Procedure and forms of order sought Law I – The first plea, alleging infringement of Article 81(1) EC and Article 53(1) of the EEA Agreement A – The first part of the first plea, alleging ‘inadequate description of the alleged infringements’ 1. Arguments of the parties 2. Findings of the Court B – The second part of the first plea, alleging ‘incorrect analysis of the alleged agreements and their effects on the common market’ 1. Arguments of the parties 2. Findings of the Court a) The burden of proof b) The probative value of the GQ Agreement and the EQ Agreement c) Proof of the common understanding The statements of ABB and Mr M. Fuji’s statements Hitachi’s statements The failure of Areva, Alstom and the VA Tech Group to dispute the common understanding The list of GIS projects in Europe – The origin of the list, the date on which the global list was established and the classification of the list as evidence – The contention that the GIS projects in Europe referred to on the global list were not discussed within the cartel – The projects which were allegedly mentioned on several occasions or which were not implemented – The low number of GIS projects in Europe recorded on the global list – The alleged failure to allocate GIS projects in the EEA to Siemens, in the context of the cartel – The econometric analysis produced by Siemens The documentary evidence – The GQ Agreement and the EQ Agreement – The document found on the premises of the VA Tech Group, entitled ‘Summary of discussions with JJC’ – The emails exchanged on 18 January 1999 between Mr M., Mr Wa., Mr J. and Mr B. who were employees of the VA Tech Group – The documentary evidence concerning facts occurring outside the period between 2002 and 2004 d) Findings on the second part of the first plea The effects of the cartel within the EEA The reservation of European and Japanese markets for the groups of European and Japanese producers respectively The protection of ‘home countries’ in Europe II – The second plea, alleging infringement of Article 25 of Regulation No 1/2003 A – The first part of the second plea, alleging failure to prove participation in the infringement between April and September 1999 1. Arguments of the parties 2. Findings of the Court a) The division of the burden of proof between Siemens and the Commission b) The probative value of the evidence on which the Commission bases its finding that Siemens interrupted its participation in the cartel on 1 September 1999 The statements of ABB and Mr M. The document entitled ‘Summary of discussions with JJC’ The statements of Areva, Melco, Fuji and Hitachi/JAEPS – Areva’s statements – The statements of Melco – The statements of Fuji – The statements of Hitachi Interim conclusion c) The evidence submitted by Siemens to establish that it interrupted its participation in the cartel in April 1999 The empirical economic evidence that it interrupted its participation in the cartel at the latest in April 1999 The testimony of Mr Se. The testimony of Mr Tr., Mr E. and Mr Sch. The lack of evidence of Siemens’ participation in an agreement on GIS projects after April 1999 The lack of evidence of a meeting after 22 April 1999 B – The second part of the second plea, based on the rules on limitation of actions 1. Arguments of the parties 2. Findings of the Court C – The third part of the second plea, alleging no participation in the cartel after 1 January 2004 1. Arguments of the parties 2. Findings of the Court III – The third plea, alleging error of law in calculating the amount of the fine A – The first part of the third plea, based on the disproportionate nature of the basic amount of the fine 1. The first ground of complaint, alleging failure to prove the effects of the cartel. a) Arguments of the parties b) Findings of the Court 2. The second ground of complaint, based on the disproportionate nature of the basic amount of the fine in relation to the economic significance of the infringement a) Arguments of the parties b) Findings of the Court 3. The third ground of complaint, alleging that Siemens was included in the wrong category a) Arguments of the parties b) Findings of the Court B – The second part of the third plea, based on the disproportionate nature of the deterrent multiplier 1. Arguments of the parties 2. Findings of the Court C – The third part of the third plea, alleging error in the determination of the duration of the infringement D – The fourth part of the third plea, alleging that Siemens was wrongly classified as leader of the cartel 1. The first and second grounds of complaint, alleging that ABB and not Siemens adopted the role of leader in the cartel a) Arguments of the parties b) Findings of the Court The role of leader in the cartel The alleged unequal treatment of Siemens with regard to ABB 2. The third ground of complaint, alleging that the increase in the basic amount of the fine imposed on Siemens on account of its role of leader in the cartel was excessive a) Arguments of the parties b) Findings of the Court E – The fifth part of the third plea, alleging manifest error of assessment as regards the failure to reduce the amount of the fine pursuant to the Leniency Notice 1. Arguments of the parties 2. Findings of the Court F – The sixth part of the third plea, alleging that DG ‘Competition’ in fact constrained the College of Commissioners 1. Arguments of the parties 2. Findings of the Court Costs * Language of the case: German.